October 28, 2009
In the three-day Holmes Lecture entitled “Dignity and Defamation: The Visibility of Hate” at Harvard Law School this October, New York University Professor Jeremy Waldron argued for the regulation of hate speech to reinforce society’s collective commitment to uphold one another’s personal dignity.
In making his case, Waldron compared existing hate speech laws from advanced democracies around the world and concluded that they can be an effective way to deal with the “visible defamations of social groups.”
In the first lecture, “Why call hate speech group libel?,” Waldron offered a historical and legal background to hate speech issues. He explained that hate speech regulations should primarily deal with expressions of hatred that are printed, published, or otherwise put into the visible environment. Publication, Waldron said, makes announcements of hate permanent, tangible, and therefore more damaging.
“I think that the special evil that hate speech regulations are directed against is not the immediate flare up insult and offense, a shouted slogan or a racist epithet, but rather the way in which something said or thought becomes established as a visible or tangible feature of the environment, part of what you can see or touch in real space or in virtual space as you look around you.”
Waldron continued by explaining that hate speech regulations ought to be enforced as criminal laws. Historically, he explained, cases of libel were not only civil in nature, as they largely are now. Instead, criminal charges were often brought to prevent fighting from breaking out.
That basic idea of public order might now be expanded beyond that “very narrow sense of keeping the peace,” Waldron said, to include “maintaining among us a proper sense of one another’s legal status.” In short, hate speech, or “group defamation” as it is called in many countries, amounts to “assaults upon the dignity of the persons affected,” and so the government should be invested in preventing hate speech from occurring.
Waldron drew an important distinction between defamation and mere offense, however. “There is a big difference between protecting individuals from defamation, and protecting them from offense, even when the offense goes to the heart of what they regard as the identity of their group,” he explained.
In the second lecture, entitled “What does a well-ordered society look like?,” Waldron argued that society cannot be well-ordered if people are permitted to pursue hate speech, which breeds rancor and division. Furthermore, Waldron concluded that the mutual respect reinforced through hate speech regulation is a precious public good.
Drawing on the notion of a well-ordered society discussed at length in Rawls’ Political Liberalism, Waldron sketched his own view of what a well-ordered society might look like. In our less-than-perfect society, laws are necessary to enforce the basic tenets of a just society – including each individual’s basic right to just treatment, he said.
“Societies do not become well-ordered by magic. The expressive and disciplinary work of law may be necessary as an ingredient in the change of heart on the part of its racist citizens that a well-ordered society presupposes.”
Drawing again on Political Liberalism, Waldron said that one of the key characteristics of a well-ordered society is that, according to Rawls, “citizens accept and know that others likewise accept those fundamental principles, and this knowledge in turn is publicly recognized.” Individual dignity requires this type of mutual, implicit assurance, said Waldron.
This notion of mutual assurances goes to the very heart of what hate speech is all about,. Hate speech “target[s] the assurance on which members of vulnerable minorities rely. Their point is to negate the implicit assurance that a society offers to the members of vulnerable groups—to undermine it, call it in question, taint it with visible expressions of hatred, exclusion, and contempt.”
Hate speech regulation is necessary, then, to give members of minority groups the ability to move forward and carry out their lives without a constant fear of being hated. The state cannot provide security for individuals all the time, so it is everyone’s individual responsibility to act in a respectful way towards other citizens, concluded Waldron. Thus, hate speech regulation is “a matter of securing, in a systematic fashion, a particular aspect of civic order under justice.”
In the third and final lecture, “Libel and legitimacy,” Waldron addressed several important counter arguments to his view of hate speech regulation. One argument, advanced by Ronald Dworkin, says that the enforcement of hate speech laws will make downstream laws seem illegitimate and potentially have a chilling effect on everyone’s speech.
Waldron accepted portions of Dworkin’s argument, and concluded that just because difficult lines must be drawn when applying hate speech regulation does not mean that the legislation should not be implemented.
“Legislative policy is often complicated and requires nuanced drafting and careful administration,” Waldron said. “I belong to a school of thought that accepts that the tasks assigned to courts and administrators in matters of fundamental right (rights to free expression, rights to dignity) will often be delicate and challenging, often involve balancing different goods and essaying difficult value judgments.”
In concluding his lectures, Waldron returned to the question of why the U.S. is essentially the only liberal democracy in the world to not adopt hate speech regulation. Throughout the three-part series, he admitted that it was an “unwinnable case” to attempt to implement hate speech laws in the U.S. due to the strength of the First Amendment. Although Waldron explicitly said he did not seek to convince the U.S. to adopt hate speech regulation, he admitted he didn’t fully understand why the U.S. was so committed to the historical First Amendment interpretations.
Said Waldron: “It’s like we have gone down a blind alley in our First Amendment jurisprudence, committing ourselves to a particular vision of what acceptable exceptions must be like—non-content-based, oriented to clear and present danger of crime or violence, and so on—and there’s nowhere to turn and no way back that wouldn’t unravel the whole scheme and make it open season on speech of every kind.”
Born and educated in New Zealand, Waldron received Bachelor’s and Law degrees from the University of Otago, New Zealand in the 1970’s. He was admitted as a barrister and solicitor of the Supreme Court of New Zealand in 1978 before moving on to study at Oxford for his doctorate in legal philosophy. Studying under legal philosopher Ronald Dworkin and political theorist Alan Ryan, Jeremy then became a fellow of Lincoln College in Oxford in 1980.
From 1983 to 1987 Waldron was Lecturer at the University of Edinburgh. He then served as Professor of Law in the Jurisprudence and Social Policy Program in the School of Law (Boalt Hall) at the University of California, Berkeley. Waldron later taught at Princeton, as Laurance S. Rockefeller University Professor of Politics, before moving to New York in 1997. He was University Professor in the School of Law at Columbia University before moving to his current home as University Professor at the New York University School of Law.
Waldron is the author or editor of nine books, including Toleration and its Limits (editor, 2008); God, Locke, and Equality: Christian Foundations of Locke’s Political Thought (2002); and Law and Disagreement (1990), among others. He has also authored numerous articles, appearing in numerous scholarly publications and law reviews, as well as the New York Review of Books and the London Review of Books.
In introducing Waldron at the start of the lecture series, Harvard Law School Dean Martha Minow lauded him as “one of the two or three greatest legal philosophers of our time.”
Said Minow: “There is simply no one else who could better illuminate the most knotty and fundamental issues. As you clarify, you advance rights, constitutions, and democracy. You show how the most libertarian, private property believer must find a response to homelessness; the most hard-headed governmental lawyer must resist blurring the line between security and torture.”
Made possible by a 1936 bequest of Oliver Wendell Holmes LL.B.’1866 to Harvard University, and developed since 1954 to support lectures at the law school, the Holmes Lecture has brought to campus some of the greatest legal minds of all time, including: H. L.A. Hart, Learned Hand, Henry I. Friendly, Walter Gellhorn, Guido Calabresi, Charles Black, William Brennan, Harry T. Edwards, Antonin Scalia, Ronald Dworkin, Stephen G. Breyer, Ralph Winter, Richard Posner, Kathleen Sullivan, Cass Sunstein, and most recently, in 2006, Bruce Ackerman.