The Harm Principle and the First Amendment

Those who pine for the importation of European-style “hate speech” restrictions to the United States but have always found the proposal blunted by American courts’ almost-total deference to the First Amendment have an ally in Jeremy Waldron, a Harvard legal theorist. His argument, which began as a 2009 Holmes Lecture and will be expanded and presented in a forthcoming book, attempts to skirt First Amendment objections to “hate speech” laws by arguing that such speech causes actual, demonstrable harm to those receiving it. According to  Kirkus Reviews  Waldron offers “an eloquent reply to free-speech advocates” in which he:

. . . moves step by step in building the argument as to why hate-speech laws are good for a well-ordered society. In many enlightened democracies in Europe, as well as in Canada, the use of threatening, abusive speech or behavior to stir up racial hatred is prohibited by law. Americans, on the other hand, are vociferously more guarded about the First Amendment, and the Supreme Court has opposed regulation on free speech only since 1931, when it struck down a California law forbidding the display of a red flag as an oppositional symbol. Subsequently, the government, Christian Church and public officials were deemed sufficiently strong enough not to need regulation of attacks on them, while even the Ku Klux Klan could indulge in hate speech “unless it is calculated to incite or likely to produce imminent lawless action.” But racial and ethnic minorities are vulnerable, Waldron writes, and a liberal democracy’s “assurance” of their protection from attack and denigration are not secure when hate speech is allowed free rein, such as in the time of public hysteria after 9/11. The author argues that the damage caused by hate speech is like an “environmental threat to social peace, a sort of slow-acting poison” that robs the intended victims of their dignity and reputation in society.

I can’t speak fully to the constitutional argument being made here, although reports from various quarters seem to indicate that this is something of an untested attempt in the context of today’s jurisprudence—or that it at least cuts against the current grain of thinking. Over the last few decades, the Supreme Court has broadly deferred to speech with extraordinarily minimal scrutiny given to the content (basically, only direct threats of specific acts of violence are problematic, and even then there are ways to defend the speaker). Earlier, though, the court was much more willing to permit restrictions (for example, see Schenck v. United States [1919], in which the court found laws prohibiting the expression of opposition to the draft in wartime to be permissible).

On a more theoretical level, Waldron is correct, as far as this particular line of argument goes, that the Enlightenment notion of a “marketplace of ideas” filtering out all objectively relies on an unrealistic presumption of universal good faith and objectivity, and when deployed as a shield for the vulgar or needlessly provocative, gives shelter to speech which is utterly without merit (yes, this kind of speech exists; it cannot all be filed away under “artistic expression”). And he poses a problem worth contemplating for moral traditionalists who believe the law ought to be on their side on matters like the fight to contain pornography or, say, limit the depiction of sacrilegious activity: How can we make an argument for positive laws on these subjects while not handing those who would silence religious groups a long-dreamed-of legal bludgeon or attempting to escape the dilemma entirely by taking the easy path of libertarianism?

Unfortunately, when it comes to specific decisions about which forms of speech cause enough harm to merit a ban, I have more than a suspicion about the specific kinds of content Waldron wants to deem legally interdict. His hammer would likely fall on religious groups who adhere to and preach the importance of traditional moral teaching. In fact, the excerpt above talks about Christian churches representing some sort of “secure” majority not in need of the law’s protection, and in a further piece on the subject at  Eurozine , he speaks in coded terms about “communities with a history of injustice” having the right to “allay their nightmares.”

So if he’s on to a flaw in our current legal orthodoxy, let’s be careful about how quickly we develop and deploy this alternative line of reasoning.