Tag: hate speech

Kindly Inquisitors

This week Jonathan Rauch celebrates the new, expanded edition of his book Kindly Inquisitors: The New Attacks on Free ThoughtHe’s also guest-blogging at the Volokh Conspiracy, itself newly hosted at the Washington Post. In his first post, Rauch sums up a key point of his book and also why its reissue is so timely:

Over the past 20 years, the idea that minorities need protection from hateful or discriminatory speech has gained ground, both in American universities’ speech codes and in national laws abroad. In fact, I argue, minorities are much better off in a system that protects hateful or discriminatory speech than in a system that protects them from it.

Kindly Inquistors offers a moral defense of free inquiry, with a focus on how minorities fare under different approaches to controversial speech. Rauch concludes that when individuals disagree, the only proper approach is the “checking of each by each through public criticism.” 

He terms this approach liberal science, and he recommends it not just in science, but in public policy. One of the most interesting facets of Kindly Inquisitors is the way that Rauch links the free inquiry of science to the free inquiry found in liberal democratic societies; both, he argues, are also akin to the free inquiry found in capitalism.

In all these areas, free inquiry can nevertheless cause genuine harm. Why not restrict, just a bit, if it will prevent some suffering? In the book, Rauch answers:

The truth is that liberal science demands discipline as well as license… It does not give a damn about your feelings and happily tramples them in the name of finding truth. It allows and – here we should be honest – sometimes encourages offense. Self-esteem, sensitivity, respect for others’ beliefs, renunciation of prejudice are all good as far as they go. But as primary social goals they are incompatible with the peaceful and productive advancement of human knowledge. To advance knowledge, we must all sometimes suffer. Worse than that, we must inflict suffering on others.

For many, these words will not be welcome. And for a few truly loathsome people, they will be all too welcome. Undeniably, words a lot like these have been used as a pretext to hurt, which they should not be.

Yet we classical liberals have always welcomed the progress that comes from free minds, from the free exchange of ideas, and from the freedoms of travel and commerce, even if at times they bring disruption, embarrassment, or loss. In science, in public opinion, and in the marketplace, there will always be failures. And yet for a society to succeed, such failures cannot be avoided.

Our faith in mankind’s ability to find and act upon the truth is key: We trust that the process of inquiry, with its defeats as well as its victories, will bring a better and better life for us all. 

Snyder v. Phelps: The Constitution Protects ‘Outrageous’ Speech Too

I’ve resisted commenting on Snyder v. Phelps, the “funeral protest case,” because, as the old saying goes, hard cases make bad law.  And in this instance, really weird and repugnant speech makes for a lot of sound and fury signifying very little.

Still, the bizarre and inflammatory facts of the case – protestors show up at soldiers’ funerals to make the point that these deaths are God’s retribution for America’s tolerance of homosexuality – have gained plenty of media interest, particularly during this relatively uneventful term at the Supreme Court.  So I have commented a few times on the radio and yesterday attended the oral argument, the transcript of which you can read here and audio for which should be released on the Court’s website tomorrow.

At the end of the day, this case implicates all sorts of legal issues but the First Amendment is almost tangential to it.  A private cemetery can and should remove unwanted visitors for trespassing – but the Phelpses didn’t enter the cemetery.  A town can pass ordinances restricting the time, place, and manner of protests – but the Phelpses stayed within all applicable regulations and followed police instructions.  Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like – but the Phelpses’ protests are neither loud nor involve “getting up in the grill” of people, as their lawyer (and church member) put it during oral argument.  In short, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade.  If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas – or federal laws in the case of military cemeteries—but they shouldn’t be able to sue simply for being offended.  Eugene Volokh has a more detailed analysis in the Wall Street Journal.

Oh, and as for predicting how the Court will rule, I’ll say 8-1 for the Phelpses in a narrow opinion, with Justice Alito dissenting (as he did last year in United States v. Stevens, the “depictions of animal cruelty” case).

Hate Register?

In my policy analysis “Attack of the Utility Monsters,” I wrote that one problem with hate speech laws is that the longer they stay on the books, the more they can encourage outrage over increasingly petty offenses. Here’s a story from the United Kingdom I’d certainly have included if I were writing that paper today:

A ten-year-old boy from Weston Super Mare has been put on a school “hate register” after he allegedly made a homophobic insult in the playground.

Peter Drury, a pupil of Ashcombe Primary School, is believed to have called one of his friends a “gay boy,” according to his mother.

The boy’s mum says she was called into her son’s school to be told by head teacher that another mother had heard him using homophobic language.

She claims she was told the incident would be registered and his file monitored while he was at the school.

“He doesn’t even understand about the birds and the bees, so how can he be homophobic?”

Schools are reportedly being given advice that offensive comments made by children as young as five should be recorded and kept on record until the pupil leaves secondary school.

Kids can be incredibly cruel, in both word and deed. But if we were to put every child who ever said something hurtful on a “hate register,” just how many kids would we have to register? All of them? What good would that do us?

Obama, International Law, and Free Speech

Stuart Taylor has a very good article this week about the Obama administration, international law, and free speech.  This excerpt begins with a quote from Harold Koh, Obama’s top lawyer at the State Department:

“Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court, suggested Koh – then a professor at Yale Law School – “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that he espouses.

Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.

In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. “Criticism of religion is the very measure of the guarantee of free speech,” as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.

Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on “racial and religious stereotyping” and the rest.

Read the whole thing.