On October 23, 1998, abortionist Dr. Barnett Slepian, was shot and killed by a sniper’s bullet. The sniper in question was part of the radical pro-life contingency in the United States. Bill Baird, another abortionist, had his own clinic fire bombed. When holding a news conference afterwards, he stated, “I fault publicly the Roman Catholic Church, the Right to Life people, and all anti-abortion forces who use the rhetoric ‘baby murderer, killer, devil’ which creates a climate that turns loose lunatics like this (qtd in Scott 9).
The interesting part of Baird’s statement is not his obvious contempt for pro-life advocates; ather it is his contention that their hate “rhetoric” is responsible for building a climate of fear and inequality. Baird was accusing the pro-life side of what we now commonly call “hate speech. ” Hate speech could be defined as speech that denigrates individuals based upon race, gender, ethnic status, or sexual orientation. Liberal democracies have increasingly found it difficult as to what the appropriate response to hate speech should be. This arises out of the longstanding liberal tradition of free speech.
Freedom of speech would seem to be in conflict here with the other liberal tradition of equality of citizenry. Whether to regulate speech in certain contextual arenas, especially universities, or in society as a whole, have become violent issues of discussion. In the Baird example, society would have to decide upon what is more valuable, the right of women to have abortions in a safe and harassment free arena, or the rights of pro-life critics to voice their opinions. The actions have varied, with some states and provinces creating “bubble-zone laws” used to limit pro-life protest.
These issues are very controversial, because inevitably someone or group will be disenfranchised and silenced. Three iews on hate speech laws seem to be evident. Those who advocate for it, based on psychological harm and constructionist views, those against it from a civil libertarian perspective, and those sympathetic but against most speech codes based upon pragmatic or linguistic objections. All three will be examined for strengths, weaknesses and rationality. Many people of differing ethnic or racial lineage are denigrated.
Gays and Lesbians, as well as women, are also often targets of speech that inflicts harm. These forms of hate speech “treat their targets as moral subordinates on account of race, gender, or sexual preference (Altman 12). ” This subordination is likened to psychological abuse. While physical abuse is obviously curtailed by existing laws, psychological abuse because of its slippery nature is not. Only in specific circumstances, such as the workplace is it curtailed, such as sexual or racial workplace harassment laws. However, in society as a whole, it is not a crime to use a racial or gender epitaph at people.
For instance, if someone were to call a person of African origin a “nigger” on the street, many people would find it intensely immoral and distasteful, but that speech in no way would be considered illegal. Certain proponents of hate speech laws would consider the psychological abuse entailed in hate speech, the denigration of a person’s moral worth, to be adequate justification for its illegality. These proponents would view physical and psychological forms of harm as equal, not necessarily punishable in the same way. The harm principle is an important justification of hate speech law.
Essentially, it functions within an individualist paradigm, limiting its understanding of hate to particular acts committed against individual members of the community. However, many advocates of hate speech laws recognize a structural element o hate speech that goes beyond the individual acts of hate speech. Social constructionist accounts of hate speech are often stronger than the psychological harm principle elucidated earlier. Psychological harm is often a slippery concept. Psychological harm is often intensely personal and subjective. It is hard to codify or quantify.
Because of its subjective nature, the psychological harm principle would be hard, if not impossible, to successfully implement in law. The constructionist position maintains that hate speech ritualizes and “facilitates unequal treatment of groups based on race, gender, and sexual preference (Calvert 6). The very language of hate speech would seem to create a linguistic paradigm for the moral degradation of whole classes of people. Hate speech would then function, not only as a psychologically harming action, but also an action that creates and fosters inequality.
Thus, “the communication itself is at once a form of conduct (Butler 351). ” Liberal hate speech activists seem especially attracted to this position because it is rooted in liberal conceptions of egalitarianism. Hate speech could be seen as antithetical to the very nature of constitutional democracy, which strenuously promotes he equality of all citizens regardless of racial, ethnic, cultural, or sexual lines. The constructionist approach has its advantages because it seems to be rooted in liberal conceptions of law and rights, while the psychological harm principle does not.
For, as in the psychological harm principle, it is hard to construct a legal code around the adage that one has “hurt my feelings. ” With its locus in historical liberal traditions, it would seem to have a much greater chance of success and viability. Civil libertarians are notorious for their free speech advocacy. Whether defending pro-life Christians being censored by universities or communists, the civil libertarian is value neutral in his/her examination of speech. For civil libertarians, speech is a fundamental and inalienable right.
Civil libertarians have a long history back to John Stuart Mill, John Locke, Voltaire and other enlightenment philosophers. The civil libertarian position is adequately articulated by the American Civil Liberties Association, stating: Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, eligious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them.
As one federal judge has put it, tolerating hateful speech is “the best protection we have against any Nazi-type regime in this country. ” (ACLU section 4 paragraph 2) Free speech advocates not only are against hate speech laws because of historical distrust for government, but also because “without it, other fundamental rights, like the right to vote, would wither and die (ACLU ection 1 paragraph 1). ” Civil libertarians suggest that free speech is so fundamental and axiomatic to all other rights that any trampling will destroy the very foundation that rights are built upon.
Free speech advocates do not necessarily disagree with the constructionist or psychological harm positions. However, they do disagree that these values are stronger than values placed upon free speech. Civil libertarians position is also based upon a historical precedent, as aforementioned. Historically, many unpopular views have been quieted because of their potential harm to society. Even fifty years ago, some communists (although one could argue that some were legitimately treasonous) were quieted in the United States during the notorious McCarthy era.
Civil libertarians would seem to have good reason to distrust the history of governments. Even the United States, with its strong advocacy of free speech, has trampled upon it. Civil libertarians reject the conflict of rights posited by other liberal theorists. They do not recognize inequalities based in social systems but rather restrict their meaning of equality to the legal and political frameworks. In this way, they avoid the confliction of rights hat other liberal theorists contend with. Some people, who are sympathetic to the pro-hate speech law position, are nonetheless unconvinced for its implementation.
These people are not against it for reasons like civil libertarians. Rather they seem more pragmatic in their approach. They feel that hate speech laws would not adequately address systematic issues of oppression. Instead, they may actually make them worse. Stanley Fish has commented that present weak liberals who advocate a silencing of hate speakers do a disservice. As he contemptuously states, “Banishing hate speakers from your little onversation leaves them all the freer to pursue their deadly work in the dark corners from which you have averted your fastidious eyes (Fish 392).
Fish’s eloquent disdain for hate speakers is somewhat refreshing in an age of niceties. Fish’s solution is not hate speech laws, which he has previously stated do not work. Rather he advocates a much stronger moral and social attack: A deeper wound will only be inflicted [on hate speakers] by methods and weapons her liberalism disdains: by acts of ungenerosity [sic], intolerance, perhaps even repression, by acts that respond to evil not y tolerating it-in the hope that its energies will simply dissipate in the face of scorn-but by trying to stamp it out.
This is a lesson liberalism will never learn; it is the lesson liberalism is pledged never to learn because underlying liberal thought is the assumption that, given world enough time (and so long as embarrassing “outlaws have been discounted in advance), difference and conflict can always be resolved by rational deliberation, defined of course by those who have been excluded from it. (Fish 392) Fish’s disagreement with hate speech laws is not because of a prior liberal ree speech conviction but because of their pragmatic lack of action.
Fish advocates a strong social revulsion and distrust, much like what homosexuals and African Americans felt in earlier times and still do feel. Fish’s action is almost a reversal of fortunes for hate speakers. It takes their former methods and turns them around. However, whether a society, so lacking in moral fortitude could implement Fish’s plan remains to be seen. Perhaps, Fish’s own pragmatic vision contains elements of utopianism. Judith Butler, a queer theorist, offers an alternate view against ate speech laws. Butler’s view is interesting because she is in the camp of postmodern (de)constructionists.
Known mostly for her views on gender construction and post-feminist theory, Butler translates some of her ideas into the intellectual fight over hate speech laws. In a postmodern twist, like only postmodernists can do, Butler suggests that the codification of hate speech laws reifies the existing linguistic structures of hate speech. By a seeming contradiction “hate speech is produced by the law, and constitutes one of its most savory productions; it becomes the legal nstrument through which to produce and further a discourse on race and sexuality under the rubric of combating racism and sexism (Butler 373).
Butler’s view of language is paramount in this discussion. Language, much like sexuality, is fluid and can be manipulated to confuse the sites on which it is maintained and situated (Butler 377). Following from her philosophy of language, Butler’s position on hate speech and how to counter it becomes clearer. As she states, “When the task of reappropriation is taken up within the domain of protected public discourse, the results seem o me to be more promising and more democratic than when the task of adjudicating the injury of speech is given over to the state (Butler 376).
Butler’s emphasis on reappropriation involves the blurring of hate speech. One example is the popular usage of “nigger” within African American rap music. The term is used in a context of brotherhood and friendship and is stripped of its former pejorative context. By codifying hate speech, Butler is afraid that we will limit our creative opportunities to overcome it. We will end up institutionalizing the hate speech we so despise.
