The Societas Civilitas, Hate Speech and State Imposed Restrictions

THE SOCIETAS CIVILITAS, HATE SPEECH, AND STATE IMPOSED RESTRICTIONS Dr. Craig Paterson Introduction In my paper, I seek to discuss the desirability of laws regulating the content and availability of what is commonly known as “hate speech” in the United States of America. The method of my approach will be to spell out the two main opposing argumentative positions concerning the imposition of content based restrictions on hate speech—the first I will call the “Absolutist position” By “Absolutist,” I do not mean to infer that no exceptions whatsoever are recognised concerning the First Amendment Free Speech clause. The phrase Absolutist is being used here for convenience. It should be read to mean “Near Absolutist.” and the second I will call the “Criticalist position.” Used in this paper as a shorthand for Critical Race Theory/Critical Legal Studies. Obviously, in a paper of limited length, I will not be able to develop many subtleties or nuances in expounding these respective positions. They are best regarded as “ideal types” in the Weberian sense—constructs for the propose of setting into higher relief basic differences of approach. Having spelled out the main lines of debate on both sides, I then turn to the work of J. S. Mill, especially his seminal essay On Liberty, a source respected on both sides of the political and legal debate, as inspiration for a set of ideas that suggests something of a via media for approaching the question of tolerating or not tolerating hate inspired speech in civil society. Along Millsian inspired lines, I will argue for a more nuanced understanding of liberty that has both negative and positive dimensions, of “negative liberty” and of “positive liberty.” The remainder of the paper will be tied to working out some of the implications of this via media between the respective demands of the Absolutists and the Criticalists. I argue that Absolutism is too insensitive and blunt in its inability to accommodate and respond towards the nature and significance of certain “harms” that hate speech may engender in civil society. Its account of liberty is insufficiently ameliorated, I think, by the requirements of “positive liberty.” On the other hand, I find Criticalists too ambitious in what they can expect, in the name of government action, to deal with all facets of hate speech. We do not, in the name of advancing equal respect for persons, seek to cure the disease but at the expense of generating other consequential evils that may become too constraining on other basic needs of civil society. Opening up our understanding of the conceptualization of liberty, I argue, is a positive step to take in looking at the current First Amendment debate. First: A Caveat on What I Mean by Hate Speech The topic of what the phrase “hate speech” actually refers to is problematic. Let me be openly clear about that. See for example, Charles Fried, “The New First Amendment Jurisprudence: A Threat to Liberty?” 59 University of Chicago Law Review 225 (1992), 244-50. Equally, I do not want this paper to turn into a textual analysis of the phrase “hate speech.” Time not space will permit such an investigation. I need sufficient guidance only to propel the paper forward. There have been several ordinances and speech codes that have merged in the United States in recent years, For example, R.A.V. v. City of St. Paul, 505 US (1992), 377; and Corry v. Stanford, no 740309, California Superior Court, Feb. 27, 1995, unpublished, but available on Westlaw. enough, I think, to generate a basis so that I can offer the following description of what I mean to encapsulate by the phrase hate speech in the context of this paper. Hate speech is not just the mere saying offensive words. It is more than hurling epithets or uttering profanity out of frustration. Hate speech is constituted by aggressive language that targets people with a harmful intent. By hate speech, then, I mean oral, verbal, or symbolic communication that intends to vilify individuals or groups on the basis of such characteristics as race or ethnicity, and can, I think, be broken down into two broad classes: (1) face-to-face vilification; (2) the creation of a hostile or intimidating (uncivil) environment. My approach here is heavily influenced by the approach taken by Thomas C. Grey, the architect of Stanford University’s hate speech code in his “How to Write a Speech Code without really Trying: Reflections on the Stanford experience,” University of California at Davis Law Review 29 (1996), 917-23. The Absolutist Position Much has been written in recent years on hate speech, focusing mainly on, whether or not, in the context of United States constitutional law, hate speech ought to be tolerated or prohibited. Many analysts, whether for toleration or restriction, believe that the problem of hate speech is, among other things, one of privileging or subordinating the principle of liberty, on the one hand, or the principle of equality, on the other. See for example, Edward Cleary, Beyond the Burning Cross (New York: Random House, 1994), 172-90. The First Amendment is commonly regarded as being a liberty enhancing principle, most fully encapsulated in the emerging value of freedom of expression. US Constitution, First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (My emphasis) The Fourteenth Amendment is often seen, by virtue of its equal protection clause, as an equality enhancing principle. US Constitution, Fourteenth Amendment, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (My emphasis). It would, of course, be a horrible distortion to state that Absolutists only care about liberty and Criticalists only care about equality. Such understanding is suitable only for the school yard playground. But, I think, a more accurate analysis would be to suggest that Absolutist and Criticalist positions, when centred on the nature and scope of rights concerning free speech, whenever they perceive a clash between liberty and equality (when critical interests are at stake), seek to privilege or grant a “trump card” to one value over the other. See for example, Thomas C. Grey, “Discriminatory Harassment and Free Speech,” Harvard Journal of Law and Public Policy 14 (1991), 157-64; Edward J. Eberle, “Hate Speech, Offensive Speech, and Public Discourse in America,” Wake Forest Law Review 29 (1994), 1135-48. The phrase “trump card” is borrowed from Ronald Dworkin’s seminal text, Taking Rights Seriously (London: Duckworth, 1977). Absolutists generally seek to privilege liberty centred free speech considerations from governmental regulation or censorship. They can be said to take a hard line with respect to content-based or viewpoint restrictions on the exercise of free speech rights whether oral, written, or symbolic. See John D.H. Downing, “Hate speech and First Amendment absolutism discourses in the US,” Discourse & Society 10 (1999), 175-189. Both the ACLU and the ALA can be said to advocate for near Absolutist positions with respect to their collective understanding of the nature and scope of the First Amendment of the United States Constitution. See Office of Intellectual Freedom. Intellectual Freedom Manual. 6th ed. (Chicago: American Library Association, 2002), passim. On the ACLU’s position see Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York: Oxford University Press, 1990); Walker, Hate Speech: The History of an American Controversy (Lincoln: University of Nebraska Press, 1994), and official policy statements, for example, “Policy Statement: Free Speech and Bias on College Campuses,” on their Web Site at www.aclu.org. The First Amendment, the Absolutist claims, grants extensive blanket protection to all manner of speech, savoury or unsavoury. Except for speech used in the furtherance of crime, for example, of speech that presents a “clear and present danger” to the life or bodily integrity or another, few restraints on its rightful exercise are considered acceptable in a liberal democratic society. If university councils or school boards, for example, wish to censor racist slogans or graffiti vilifying students on the basis of colour, censoring speech cannot be thought of as an appropriate remedy to deal with this vexed situation. David Cole, “Racist Speech Should be Protected by the Constitution,” in Hate Crimes, P. A. Winters ed. (San Diego, CA: Greenhaven Press, 1996), 89-96; and Calvert, Clay and Robert D. Richards, “Free Speech and the Right to Offend: Old Wars, New Battles, Different Media,” Georgia State University Law Review 18 (2002), 671-719. Absolutists maintain that the way speech functions in a free society is to permit those who are aggrieved or slighted to organise and counter the speech of their vilifiers through the effective exercise of speech on their own behalf. Offensive speech should be sidestepped by counter-speech or boycott. Both authorities and students, for example, are free to condemn the views of those they oppose. Crucially, however, they cannot be allowed to silence the content-based viewpoints of their opponents. Arguments based on equality of treatment and respect for persons are indeed worthy of cultivation in civil society, but, and this is a crucial but, only insofar as they do not limit the free speech rights of others as guaranteed by the First Amendment. James Kelley, “Restricting Speech Does Not Fight Racism on Campuses,” in Hate Crimes, 97-9. The right of “negative liberty” then trumps equality based considerations centred on controlling or framing the content of the public forum, whether in be a park, a university, or a library. To quote Justice Black, something of a revered figure in Absolutist circles,—“I read ‘no law abridging’ to mean no law abridging ...” means that no censorial gloss may be created around the free speech clause of the First Amendment. In Smith v. California, 361 US (1959), 147, 157. Again, as stated by Justice Black, “the First Amendments unequivocal command that there shall be no abridgment of the rights of free speech ... shows the men who drafted the Bill of Rights did all the balancing that was to be done.” Konigsberg v. State Bar of California, 366 US (1961), 36, 61. This is not to say that free speech is entirely without a framework of exercise. There may be need for some content-neutral restrictions on the manner, timing, and circumstances in which free speech is exercised (for example, Justice Holmes’ famous dictum concerning the right to shout fire in a crowded theatre), Schenck v. United States, 249 US (1919), 47, 52. but this cannot extend to the selection and evaluation, by government, of the worthiness or unworthiness of ideas and thoughts in themselves. Any censorship of speech based on content must therefore be viewed as unconstitutional, a free speech abridgment. Under this approach, therefore, the only real question is whether the action that is being scrutinised is truly “speech” (and therefore protected) or “conduct” (and therefore subject to some reasonable forms of governmental regulation, an example of the latter being the use of “fighting words.”) Speech qua speech cannot be prohibited. Governments cannot seek to control messages on the basis of any content it finds pernicious, offensive, or hateful (contra bona mores). Hate speech is constitutionally protected speech and therefore cannot be repressed by means of censorship laws. See Burton Caine, “The Trouble With Fighting Words: Chaplinsky v. New Hampshire is a Threat to First Amendment Values and Should be Overruled,” Marquette Law Review 88 (2004), 441-533. See also, Nat Hentoff, Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other (New York: Harper Perennial, 1993). Both the ACLU and the ALA believe that their position on hate speech is constitutionally very strong. They rely on arguments centred on the foundational value of negative liberty itself to underpin the lexical priority of free speech over other competing considerations that may otherwise call for content-based restrictions on speech. Underlining the Absolutist understanding of the right of free speech are a number of core beliefs that serve to shore up fidelity to that value. They believe that the surest way to undermine the liberty of the individual in society is to transfer to the government the power to determine what ideas can and cannot be heard in public fora. See, for example, Robert C. Post, “Racist Speech, Democracy, and the First Amendment,” William & Mary Law Review 32 (1991), 267-325; David A.J. Richards, “Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment,” University of Pennsylvania Law Review 123 (1974), 45-91. Secondly, government censorship of ideas is usually regarded as the first step on the “slippery slope” to advancing the tyranny of the state over the individual. Governments may seize the opportunity of censorship to insulate themselves from public scrutiny or criticism, the very foundation of democratic society. Eugene Volokh, “The Mechanisms of the Slippery Slope,” Harvard Law Review 116 (2003), 1026-1136. Thirdly, they point to the importance of a “marketplace of ideas” to the creation of new and exciting trends in thought. As Justice Holmes noted, in terms paralleling the earlier thought of John Milton, “the ultimate good is better reached by free trade in ideas and ... the best test of truth is the power of thought to get itself accepted in the marketplace of ideas.” Abrams v.United States, 250 US (1919), 616, 630. As Milton states in the Aeropagitica, as early as 1644, “And though all the windes of doctrin were let loose to play upon the earth, so Truth be in the field, we do injuriously by licencing and prohibiting to misdoubt her strength. Let her and Falshood grapple; who ever knew Truth put to the wors, in a free and open encounter.” Fourthly, the “chilling” consequences of censorship of content are such that it stifles creative thought in society. The ripple effects of censorship are enormous. No one can be confident that they possess the “royal road to truth.” The spectrum of diversity of opinion in society must therefore be vigorously defended and supported. Richards, “Free Speech and Obscenity Law,” 54-91. See also Rodney Smolla, Free Speech in an Open Society (New York: Vintage, 1993), 14-25. A combination of these arguments has been advocated for by the ACLU and the ALA in briefs and policy papers they have submitted to the Supreme Court over the years. See earlier footnote 11. Criticalist Position Critical Race Theory emerged in the United States in the 1970’s in response to a perceived lack of critical analysis in existing “liberal” dominated civil rights scholarship and was fuelled by frustration with the relatively slow progress of racial reform following the belief that United States was now a citadel for the protection and promotion of civil rights. Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction (New York: New York University Press, 2001), 1-26. See also Dinesh D’Souza, The End of Racism: Principles for a Multiracial Society (New York: The Free Press, 1995). The Criticalists started to ask: whose protection? whose civil rights? Critical Race Theory emerged as an intellectual and political movement that placed the whole notion of race at the centre of critical analysis. The Criticalist movement, in general, was underpinned by two very broad conceptual commitments. Firstly, as a critical intervention into the traditional rhetoric of civil rights scholarship, Criticalism sought to describe and expose the relationship between seemingly race neutral ideas, like “the rule of law,” “merit” and “equal protection,” and to examine them in the light of interrogating dominant power structures. Secondly, as a race-conscious form of assessing and analysing legal scholarship and policies, Criticalism sought to develop ways of analysing the relationship between law and racial power in order to call for a radical change in the way we understand and evaluate the functioning of law in civil society. Katheryn K. Russell, “Critical Race Theory and Social Justice,” in Social Justice/Criminal Justice: The Maturation of Critical Theory in Law, Crime, and Deviance, Bruce A. Arrigo, ed. (Belmont: Wadsworth, 1999), 176-88; H.L. Gates, “War of words: Critical Race Theory and the First Amendment.” in Speaking of Race, Speaking of Sex, Gates et al. eds. (New York: New York University Press, 1994), 17-58. A seminal text in advancing the position of Criticalism is Mari Matsuda et al. Words That Wound, first published in 1993. Man J. Matsuda, Charles R. Lawrence, Richard Delgado, and Kimberle Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, Colo.: Westview Press, 1993). My understanding of the main thrust of the collection is that racism is an endemic fact of American life and that attempts to improve society, our peaceful and respectful coexistence with one another, cannot be realised until the structural and deeper aspects of this problem are faced up to and addressed. It is through the lens of marginalisation, domination, and suppression that Criticalists approach the assessment of the functioning of the law in society. Laws are not neutral. The are shaped by politics and can legitimise structures that may serve to shroud and conceal the true fabric of the reality of racism in contemporary America. Ibid., 1-17. If laws are shaped by power structures, laws are also the manifestations of ideology. Criticalists propose the examination of laws by looking to the interests and outcomes served by them. They are especially attune to the impact of laws on outcomes of equality of opportunity and treatment. It is through this lens that Criticalists examine the framework of the way that the First Amendment has emerged and been interpreted in the United States polity. As the title of Matsuda et al. book states, words, like sticks and stones, can assault, they can injure, and they can exclude. The text draws on the experience of injury from racist hate speech in the United States to call for the development of First Amendment interpretation that recognises the realities of such injuries and the impact they have on marginalised and underprivileged groups in society. In this text it is argued that only a history of institutionalised racism that ignores the impact of ostensively neutral policy on critical outcomes, can really explain why it is that certain defamations, invasions of privacy, and frauds to deceive, are exempted from the constitutional guarantees of free speech, as interpreted by the Supreme Court, but the invective of racists, vitriolic words that assault and create a hostile environment for minorities to live and work, are not exempted from guarantees to free speech. Ibid., 17-49, 59-87. The authors maintain that an Absolutist approach to First Amendment jurisprudence does not adequately reflect the reality that certain words and actions wound minorities and contribute to their continuing subordination. Lu-in Wang, for example, in her “The Transforming Power of Hate: Social Cognition Theory and the Harms of Bias-Related Crime,” and Steven H. Shiffrin, in his “Racist Speech, Outsider Jurisprudence, and the Meaning of America,” both discuss in detail the range of many diffuse harms caused by hate speech, specifying why these harms are different from those caused by other crimes due to targeting and the social background of disempowerment that frames the context. Wang, Southern California Law Review 71 (1977), 47-120; Shiffrin, Cornell Law Review 80 (1994), 43-87. The Criticalists focus on the corrosive and destructive consequences of hate speech to call for its criminalisation in society. In his book, Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements, for example, Alexander Tsesis sets forth a thesis about the relationship between “hate speech” and action that follows from it. His broad claim about the relationship is simple and straightforward: when systematically developed over long periods of time, hate speech lays the foundation for harmful social movements and discrimination that results in the continuing oppression and persecution of marginalised and subordinated groups. Alexander Tsesis, Destructive Messages: How Hate Speech Paves the Way For Harmful Social Movements (New York: New York University Press, 2002), 14-31. Tsesis relies on historical analysis to critique current Supreme Court doctrine. For Tsesis, Supreme Court hate speech doctrine fails to take into account the long-term social dangers of hate speech. From this perspective, Tsesis argues that United States Supreme Court ought to abandon the rule that advocacy or incitement must be put up with in the name of free speech and that legislatures should move to criminalise hate speech. Only a policy of non-toleration can tackle the significance of the problem. He then explains that much of the rest of the world criminalises hate speech in some form, recognising its particular corrosiveness, concluding that the United States should do the same. The need for equality and the welfare of the community requires that censorship in this case must temper liberal freedom. Censorship here is simply the imposition of a set of standards on freedom of expression for the protection of others from the invidious and evil effects of racism. Ibid., 143-89. See also Tsesis’s “Empirical Shortcomings of First Amendment Jurisprudence: A Historical Perspective on the Power of Hate Speech,” Santa Clara Law Review 40 (2000), 729-65. As Matsuda et al. state “tolerance of hate speech is not tolerance borne by the community at large. Rather it is a psychic tax imposed on those least able to pay.” Mari J. Matsuda, “Public Response to Racist Speech,” in Words That Wound, 18. The Criticalists are especially hostile to the Supreme Court case of R.A.V. v. City of Saint Paul, as a paradigm case for misunderstanding the nature and significance of harms generated by hate speech directed towards minorities, misunderstanding the power of racist cultural messages. See for example, Charles R. Lawrence, “Crossburning and the Sound of Silence: Antisubordination Theory and the First Amendment,” Villanova Law Review 37 (1992), 787-823. He is very critical of the Supreme Court Judgement. In that case the majority of the bench found that a statute prohibiting the “ ... placing on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender,” was unconstitutional because it was a content-based restriction on free speech. See footnote 4. Criticalists reject this content neutral approach to First Amendment interpretation and call for an understanding of speech as a socially mediated form of power. Criticalists call for a way to understand speech that is flexible, policy-sensitive, and mindful of communication theory, politics, and setting. The idea that victims of hatred can counter the consequences of hate speech with powerful rhetoric of their own, for example, is treated with dismay and yet another sign of the liberal inability to understand the systemic nature of the problem. Most especially there is a failure to realise that the inability of disempowered minorities to counter derogatory images with more constructive images, arises in large part from racial disparities in wealth. For the Criticalists, the Supreme Court failed to recognise that racial insults are in no way comparable to statements such as “X is a God damned liar.” Racial insults whether verbal or symbolic are qualitatively different because they conjure up an entire history of racial discrimination and subordination. The patterns of speech must be understood and judged against that background, and not by a misplaced fidelity to any form of ahistorical abstract absolutism. Gates, “War of words,” in Speaking of Race, 17-58. The conclusion for the Criticalists is clear, extensive laws must be enacted to regulate content-based speech that currently permits hate speech in the name of protecting free speech, a price bourn by the minorities who suffer by it. Turning to the Via Media Freedom of expression is celebrated as one of the glories of the American legal system. But does all speech deserve immunity? In particular, should speech designed to vilify or degrade on the basis of race be protected? Opinions on racist speech are complicated because they must accommodate two fundamental democratic principles that operate at cross purposes: freedom of expression, which implies support for racist speech, and racial equality, which implies the opposite. Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1995), 167-208. In the preceding explication and analysis of the two opposing strands of thought, we have sought to show how one strand emphasises freedom of speech, notwithstanding the possible effects of that speech on minority sections of society. On the other, we saw the emphasis being placed on racial equality and equal protection as privileged forms of intervention and restriction on free speech, at least as far as racially motivated hate speech is concerned. Here I wish to argue that John Stuart Mill’s classic, On Liberty is an important text for us to consider as we seek to explore the minefield of ideas that has now been unleashed. I especially want to consider his work because it a great text defending the value of liberty, and secondly, because it has, I think, been overly distorted as a text placing it firmly within the rhetoric of the Absolutist camp, while he actually offers arguments that may act as something of a limit on liberty, arguments that may act as something of a bridge between the seemingly insoluble gap between free speech, on the one hand, and concerns about equality and respect, on the other. In 1859 Mill published his small treatise On Liberty. It is the best known of his many writings concerning freedom of speech. The central thrust of Mill’s argument appears deceptively straightforward, but it is easily misunderstood. His aim, as he tells us right away, is to make the case that, as much as possible we should permit individuals to say and do what they want, subject to only one limitation, namely, that they should inflict no harm on other people. In all other cases, individuals should be left free to say and to do what they want, with no legal penalties. J. S. Mill On Liberty, Stefan Collini, ed. (Cambridge: Cambridge University Press, 1989), 15-29. Without such a principle, Mill believes, society is in danger of stagnating. In other words, maximising the freedom of all is in the best interests of every one in society. Unlike the paternalists of the past, Mill believes that people will not threaten the stability of society if they are granted more freedom. Mill’s position then is that extensions to the frontiers of negative liberty will provide direct practical benefits to everyone, for freedom of thought and expression are vital to the continuing social progress of society. The basis of Mill’s faith in such progress comes from a central claim that, in the tradition first established by the Greeks, liberty will breed competition and variety and these, in turn, will better foster excellence. Only by competing with each other in the realm of ideas and practical experiments for living and in trade will our society improve. For example, in the realm of ideas, free speech is essential for a number of reasons. Without it we may stifle some ideas which may be true, or we will collectively lose the opportunity to have our ideas challenged and to think through how we can better defend them. Ibid., 50-63. Mill’s case here is not a simple plea for tolerance, for the permissive society which lets anything go, nor is it moral relativism, which thinks that all ideas are equally valid. Mill firmly believes that tolerance is not enough, for tolerance is essentially a negative attitude. Mill sees free speech as a much more proactive element in social interaction. It is a matter of constant debate: we must allow opinions a public hearing so that we can engage with them, debate them, sharpen ourselves in a constant testing and refinement (and improvement in) our beliefs. So far, one might be forgiven in thinking that Mill’s text is practically a charter for the Absolutist position concerning the interpretation of the First Amendment. Mill is the intellectual father of many of the arguments used to support the case of opposition against content-based or viewpoint based restrictions on freedom of speech. How then can Mill’s text possibly be thought of as offering us a via media by which to engage the concerns of the Criticalists? The essay seems, does it not, distinctly libertarian in its central arguments? On further reflection, however, Mill’s case for placing no restrictions on speech is actually decidedly more qualified that it would appear. Mill does not endorse a blanket prohibition on all forms of the censorship of thought and discussion for he endorses what has subsequently been called the “Harm Principle.” According to the Harm Principle, roughly stated, the state may coerce a person by legal penalty only if it can thereby prevent harm to others (not “harm to self” however). Mill contends that it is obvious that the government must be able to legislate concerning actions which do cause harm to others in order to maintain the existence of a civil society, but that it is certainly not necessary for the survival of civil society to pass laws regarding actions which do not involve harm to others. As Mill states, “... the sole end for which mankind [humankind] are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his [or her] will, is to prevent harm to others. His [or her] own good, either physical or moral, is not a sufficient warrant.” Ibid., 13. Nowhere in On Liberty is it stated that speech, qua speech is incapable of harming others in term of its impact. Mill, moreover, asserted that “Whenever, in short, there is a definite damage or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality and law.” Ibid., 82. Moreover, Mill also stated the following, that “... even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute in their expression a positive instigation to some mischievous act.” Ibid., 56. When these kinds of qualifications are focused upon, especially the nature and significance of certain kinds of harms or offences that may be generated by speech in civil society, the case for regarding Mill purely as a friend of First Amendment Absolutism, starts to look decidedly more qualified and less robust than it would first appear. Judgments about harm are often controversial (think, for example, of recent debates about the harmful effects of mind altering drugs). Does “harm” designate damage only to a person or property, or is there a class of moral harms, or harms to character, which may legitimately circumscribe liberty? What of indirect harms? To be sure, I am not saying that the extent of the range and scope of action demanded by Criticalists, will ultimately be found to be compatible with the plausible frontiers of Mill’s restrictions on free speech. I am not a miracle worker. What I do believe is possible, however, is that taking Mill’s “Harm Principle” somewhat further may offer grounds for extending protections against certain forms of hate speech beyond those permitted by present constitutional interpretation of the First Amendment. Those steps, in the name of advancing the civil rights of minorities, can be justified by a kind of “Millsian inspired” balancing act, notwithstanding the consequences that those very restrictions may have on the exercise of some kinds of speech in civil society. At this point it is also worth mentioning another aspect of Mill’s thought conducive, in some degree, to the concerns of the Criticalists—the question of equality in the light of power structures, another concern of Mill. Mill was a critique of orthodox laissez-faire economics. Pedro Schwartz’s The New Political Economy of J. S. Mill, is, I think, a useful text to mention here because he amply demonstrates how Mill was acutely aware of how the distribution of wealth in society could affect the ability to promote free speech in civil society, especially the speech of the poor, marginalised, and subjugated. London: Weidenfeld & Nicolson, 1972. The major targets of Mill’s critique were property systems of inheritance and oppressive systems of industrial organisation. Large fortunes accumulated in the hands of a few, for Mill, are actually an enemy to free speech since they tended to seek to stifle the input of others (think here how business monopolies act!) and act for their own selfish interests. If the marginalised are to be effective partners in the free speech stakes, it is not incompatible with Mill’s social thought, therefore, to argue that positive social conditions need be created to make such fora much more accessible and engaging to the interests of minorities. Mill’s Harm Principle In an excellent essay on the interpretation of the Mill’s Harm Principle, J. C. Rees’s “A Re-reading of Mill on Liberty,” Rees distinguishes between actions that merely affect others and actions that affect others’ interests, especially critical interests, and gives textual support for the claim that Mill’s working conception of harm in On Liberty is that of “harm to interests.” John C. Rees, “A Re-Reading of Mill on Liberty,” Political Studies 8 (1960), 113-29. According to Rees, an interpretation I support, Mill emphasises that interests depend for their existence on social recognition and are closely connected with prevailing standards about the sort of behaviour a person can legitimately expect from others. It is precisely in order to distinguish human interests from arbitrary wishes, fleeting fancies, or capricious demands that Rees stresses Mill’s assessment of interest in terms of their dependence on the norms and values which enjoy social recognition. Ibid., 113-29. In the context of the United States, and debate over the recognition of civil liberties, I think that the phrase “others’ interests” may be translated into the enumeration and protection of basic civil liberties, among them the positive right not be the object of hate and vilification in civil society. By expanding on the notion of the Harm Principle in terms of the identification of critical interests, I would think that a plausible Millsian inspired line of development here would be along the conceptualisation of liberty or autonomy as having positive and negative interests at stake that need to be protected, constituting critical interests than may be harmed by the unfettered non-regulation of content-based free speech concerning racial hatred. Autonomy—a very rich notion, one based on the rights and responsibilities of personhood and respect for their dignity—is a value that, I think, ought to invoked and comprehended more fully in order to underpin the Supreme Court’s jurisprudence in this field, a key value that, I think, can provide a coherent and principled base upon which to develop a better articulation of policy in this field, helping to reconcile freedom of speech with the demands of freedom from vilification or living in a hostile and inhospitable environment. Filimon Peonidis, “Freedom of Expression, Autonomy, Defamation,” Law & Philosophy 17 (1998), 1-17. In openly recognising that the actions of autonomous individuals operating in a society can clash, it is necessary, out of an articulation of critical interest to assert that the state can bring its coercive power to bear against its citizens and thereby limit their freedom, when some actions unduly fetter the positive autonomy conditions needed to preserve the very autonomy of others. Such coercive action by the state is necessary in order to protect the dignity of its citizens by ensuring that people act in a civil manner that respects the critical autonomy interests of others. Importantly, an adequately framed notion of autonomy demands that our very capacity for autonomy imposes an obligation, enforceable by the state, to act such as to respect the autonomy of other persons. The debate over liberty/autonomy that has emerged in First Amendment jurisprudence, in recent years, both generally and in specific contexts such as hate speech, broadcast regulation, and obscenity, is I think, often badly framed. Often, in attempting to frame the debate over the question of prohibiting the regulation of speech content, we view liberty only negatively as personified by self-interested individuals acting with little regard for the community or for the welfare of others. We fail to grasp that negative autonomy is also circumscribed by the rightful positive autonomy interests of others. Liberty, as negative liberty, the right to be let alone to do what the individual wills, is then all too readily but falsely juxtaposed with “paternalism”—government regulation nefarious to the liberty of individuals. On this important topic, of positive liberty as well as negative liberty, see the very influential essay by Isaiah Berlin, “Two Concepts of Liberty,” in his Liberty (Oxford: Oxford University Press, 1969), 166-217. In fact, the basic distinction, though not the terminology, can be traced back to Aristotle in his Nicomachean Ethics. To me, one of the most misunderstood aspects of the current debate between the Absolutists and the Criticalists, is the one sided conception of liberty that all to often prevails. It seems as if liberty and equality are opposites instead of understanding them as two facets of the same underlying reality. Liberty is always too readily equated with negative liberty. Liberty is then juxtaposed in opposition to balancing equality concerns. Instead, I would argue that a better founded notion of liberty, one conducive to accepting some criticism of free speech jurisprudence that has predominated, is the idea that a rounded notion of liberty is not incompatible with some significant regulation of speech content. Kimberly Gross and Donald R. Kinder, “A Collision of Principles? Free Expression, Racial Equality and the Prohibition of Racist Speech,” British Journal of Political Science 28 (1998), 445-71. Autonomy, of “negative liberty” is too readily translated into freedom from government interference. Autonomy thus becomes equated with negative liberty, and is thus conceived of as “freedom from,” that is, the absence of constraints on the agent imposed by other people. Once conceived of as only a negative liberty, autonomy then all to readily becomes equated with the freedom to say whatever we want. Alas, it is this characterisation of autonomy, in my view, that makes the debate over hate speech, more distorted, driving out any middle ground, than it ought to be. Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1988), 400-29. See also Jeffrie Murphy and Jules Coleman, Philosophy of Law (Boulder, Colo.: Westview, 1990), 74-93. It is often stated that the purpose of free speech is to protect the weak from the tyranny of opinion of the strong. But what about protection of speech aimed not at the powerful but at the weak, speech whose purpose is to disparage and vilify, to undermine the autonomy of the marginalised and weak in society? When we turn to the notion of harm as others’ interests, especially critical interests, and frame our understanding more in terms of positive as well as negative autonomy, it is possible to see how major harms can be envisaged and described when we turn again to the context of hate speech. If, for example, one has been socialised, in large part as a result of others’ speech, to expect very little of oneself, or to defer to others, one is hardly in a position to make fully autonomous choices. Likewise, if one has very few genuine options to choose from, one’s very capacity to make choices is diminished. Can these not be classified as harms to critical interests that the government many have a legitimate mandate to balance against the interests of free and unfettered hate speech? It would seem to me that the above can yield a strong positive liberty based argument for restricting hate speech if one grants the empirical claim that failure to restrict such speech can significantly impair the ability of individuals in targeted groups to act autonomously. For an excellent extended discussion of harm and critical interests, see Gerald F. Gaus, Social Philosophy (Armonk, NY: Sharp, 1999), 136-59. Another argument that I wish to make a few remarks on here is the distinction often made between speech and conduct. Speech, it is often said, cannot be regulated, but conduct can, for speech is not conduct. Words do not really “harm” anyone. This is, to my mind, decidedly superficial and unconvincing. Absolutists concerning freedom of speech far too readily assume the “sticks and stones” principle, that words can only ever cause offence, never harm, and so freedom of speech is near absolute. As the philosopher, John L. Austin, has astutely pointed out, however, we do not just communicate thoughts and ideas with words, we can actually do things with them. A vicar, for example, can instigate a state of marriage between two people by saying “I now pronounce you man and wife.” J. L Austin, How to Do Things with Words (Oxford: Clarendon Press, 1962). See further Marilyn Frye, “Force and Meaning,” Journal of Philosophy LXX (1973), 281-94. (If gays and lesbians wish to marry, but regard equal civil rights as-non equivalent to marriage, they surely have a point!). Words can change a great deal. Words can incite hatred, inspire violence and create an intolerable climate of fear. Thus, when people use words in this way, it is quite incorrect to protest that people are merely “expressing opinions.” Claudia Lacour,. “Doing Things with Words: Racism as Speech Act and the Undoing of Justice,” in Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality, Toni Morrison, ed. (New York: Pantheon Books, 1992), 127-58. Their words can be seen to cause tangible harm to the critical interests of others—the rights of “positive liberty” to be left in peace. The Via Media and Constitutional Interpretation First a caveat on application. It is not my intention to suggest that the via media position that I am advocating is a position that is likely to be adopted in future United States constitutional analysis (at least for the foreseeable future!). It is a humble conceptual work composed of largely theoretical thoughts and reflections on my part. I am after all, at heart, an armchair philosopher! Perhaps that is too strong. Some facets may already be in play in ways that I have not the training or time to analyse or properly assess. What I do however hope to achieve here is to offer sufficient “food for thought” that points to a course of constructively moving the lines of debate forward beyond the ready rhetoric of opposing and somewhat entrenched viewpoints—an endeavour, in itself, surely worthwhile pursuing—towards a structure that takes on board some important concerns of both camps. As briefly state earlier in the paper, restrictions on speech are held under strict scrutiny standards. First Amendment jurisprudence distinguishes between content-neutral restrictions on speech that restrict the time, manner, and place of speech but not its content, and content-specific restrictions that restrict forms of speech on account of the viewpoint expressed in the speech. The first ground that I have for arguing for greater constitutional recognition of the regulation of hate speech in society is that the present standard for strict scrutiny is currently too heavily weighted in terms of categorising speech in term of negative liberty without adequately taking on board the damage to positive critical interests posed by hate speech invective. It is possible, as other countries have succeeded in doing, for example, Great Britain, Canada, and Germany, to draft a statute sufficiently targeted and directed in scope to be neither vague nor overly broad in its framing, thus not unjustly impinging on other vital free speech interests. Such statutes can target the use of verbal, written, or symbolic language intended to cause fear or emotional distress to a racial or ethnic minority. See Michel Rosenfeld, “Hate Speech in Constitutional Jurisprudence: A Comparative Analysis,” Cardozo Law Review 24 (2003), 1523-66. Take the Canadian case of R. v. Keegstra (1990). In that case, the Supreme Court of Canada perceptively argued that hate propaganda caused two sorts of injury. First, there is harm done to members of the target group. The emotional damage caused by words may be of grave psychological and social consequence. Second, the effect of hate speech on society at large is to create a more hostile environment in which minorities are able to exercise their civil rights. Regina v. Keegstra SCR 3 (1990), 697. In this case, James Keegstra, a public high school teacher, viciously propagated Holocaust denial and anti-Semitic propaganda to high school students, despite warnings to cease. See discussion in Steven J. Heyman, “Spheres of Autonomy: Reforming the Content Neutrality Doctrine in First Amendment Jurisprudence,” William and Mary Bill of Rights Journal 10 (2002), 666-98. As I understand the framing of the United States Constitution, the Fourteenth Amendment was passed to include the equal protection clause. This clause should be given greater significance in the effective balancing of the First Amendment with other considerations of dignity and respect for persons. If there truly are rights to equal concern and respect then these rights cannot simply be trumped by the appeal to a negative freedom of W to do X without the recognition that W’s right to do X affects Y’s ability to do Z. Such rights cannot be turned into absolutes, denying the qualification of X in the light of Y and vice versa. Heyman, “Spheres of Autonomy,” 688-714. Questions of balancing or weighting here, of finding a reasonable accommodation, are surely where gains in one of the values would be outweighed by greater losses in the other. Freedom of speech would be better protected were there are no legal constraints whatever on the circulation of hate speech, while the security of minorities would be more effectively safeguarded by statutes that could be decidedly authoritarian in scope and coverage. Somewhere between the two extremes we must seek a balanced point at which the greater protection for minorities afforded by stronger protection would be outweighed by the damaging impact on speech, while the greater protection for expression afforded by weaker protection would be outweighed by the increase in racial hatred. It is, of course, often objected that such a statute would not be constitutional because it would unduly grant privileges to classes of person not readily available to all. In response to this, in agreement with Criticalists, I would state that these hate crimes must be set in the context of the balance of power in society and the relative ability to find other channels for redress. There is no good reason why the Supreme Court may not take into account particular evils and remedies that call for special treatment where historical and cultural factors have an important conditioning role to play. The state need not be neutral where the very ground rules tend to disproportionably impact and prejudice the critical interests of minorities. So framed, I think that the greater recognition of the government’s interest in preventing harm to certain critical interests, namely, the autonomy right of minorities, may justify the criminal punishment of patterns of communication that are specifically intended to incite or promote the kinds of harms described. Contrary to the demands of the Criticalists, however, I do not believe that the serving of critical interests could ban all forms of discussion of race based content. I am particularly thinking here of the university or the academy. Here, I believe, that the open exchange of ideas in academic fora do need to be protected from the chilling consequences of hate speech restrictions as outlined above. I do not think that hate speech statutes can be used as a basis for suppressing, for example, research on the comparative performance of minorities in schools or colleges, or the reporting of crime statistics, or the discussion of sensitive social and political issues (providing that the intent is not to incite the very kinds of harms outlined above). Bias and distortion will always be with us and a certain amount of toleration for research or analysis that we judge profoundly mistaken or ignorant cannot be expunged from any relatively open and discursive community of ideas. I think that this kind of distinction is compatible with the kind of Millsian analysis that I have been discussing. An assessment of the prevailing values and standards needs to take account of hate speech while not seeking to remove valid and important academic discussions on issues of fact and value, providing their intent is not to promote the deliberate autonomy undermining of minorities. The second string to my bow, so to speak, would be the use of the distinction recognised in First Amendment jurisprudence between low-value and high-value speech. The negative liberty to engage in low-value speech is not a fundamental liberty. Thus, content-specific regulation of low-value speech, as a result, need not satisfy strict scrutiny but be reasonably directed to the malady it seeks to regulate. Heyman, “Spheres of Autonomy,” 688-714. By contrast, other forms of speech are high-value, and the liberty to engage in them is a fundamental liberty. As a result, content-specific regulation of high-value speech must satisfy strict scrutiny or some comparable standard. The Supreme Court formulated that key distinction in Chaplinsky v. New Hampshire. US 315 (1942), 568. Some forms of expression, among them obscenity and fighting words, do not convey ideas and thus are not subject to First Amendment protection. Here, I would argue that the kind of analysis conducted by the Supreme Court, for example, in its analysis of obscenity, is applicable to the regulation of hate speech and that the Court should extend its analysis of obscenity to the realm of hate speech (not as Absolutists have argued, the effective deregulation of obscenity by the courts). I would argue that hate speech invective is of such low social and political value as to be without major redeeming importance and hence not worth protecting. Here, as with the judgment of obscenity, I believe that context and intent are important to the assessment of locutions, texts, and symbols. Works, locutions, or courses of action will need to be judged as a whole. Here the standard, I think, becomes one of the reasonable person and their reasonable perception of prevailing contextual standards. As with obscenity, I would exempt from the category of the proscribed, works that are judged to be of overriding historical, scientific, artistic, or political value, notwithstanding their racial messages. Again, works must be judged a whole. This is, I think, in line with Mill’s general desire to preserve and not destroy the patrimony of ideas available to society, while trying to ensure that the best examples of ideas are kept, not the irredeemably low. Again, it should be bourn in mind here that hate speech tends to silence the historically marginalised by stifling the expression of their views or preventing their views from receiving a fair hearing. If hateful words or symbols retard, rather than advance deliberative values in society, then they should count as low-value speech, and their regulation should be subject only to the bar of the proportionality of the measure adopted to the nature of the harm being tackled. Hate speech is of such low value in promoting deliberative values in society, in comparison to its attempt to suppress the deliberative values of minorities, that it can, I think, be judged a reasonably apportioned measure. Conclusion Having reviewed the respective positions of the Absolutists and the Criticalists, concerning First Amendment jurisprudence, I have opted for a via media position between those two opposing camps. The via media position adopted is, I think, supported by the work of J. S. Mill, furnishing us with an expanded conception of liberty that stresses the value of “positive liberty” as well as “negative liberty.” The unpacking of a broader notion of liberty and an array of critical interests at stake, gives us sufficient grounds for justifying the imposition of criminal sanctions on certain forms of hate inspired speech in civil society. ...cont’d PAGE 28