Extreme speech, often called “hate speech,” is back in the news. College students and administrators want to ban it and punish those who utter it. Politicians say that the First Amendment does not protect such speech. Advocates for minorities demand protection from it.
The prominent legal scholar Nadine Strossen has written a new book on this topic, Hate Speech: Why We Should Resist It with Free Speech, Not Censorship. Our next few blog posts will examine Strossen’s most important claims about hate speech. Be aware, however, that these posts are no substitute for reading the book itself. Strossen has written a book that should be widely read.
Strossen begins by roughly defining hate speech:
The term “hate speech” is not a legal term of art, with a specific definition; rather, it is deployed to stigmatize and to suppress widely varying expression. The most generally understood meaning of “hate speech” is expression that conveys hateful or discriminatory views against specific individuals or groups, particularly those who have historically faced discrimination.
Let’s posit, as we should, that hateful and discriminatory views are not acceptable in a liberal democracy. What should be done about them?
Perhaps the government should prohibit such speech either by preventing it from being uttered or punishing it severely if it is uttered. On the other hand, the government might allow such speech. The former is the way of the censor, the latter the liberal way of the First Amendment.
Strossen defends the liberal way. She shows that censorial measures are ineffective and do not promote equality. Instead, Strossen, an advocate of social justice, recommends forceful counter-speech and activism. Can counter speech work?
Counter-speech, which “encompasses any speech that counters a message with which one disagrees,” (158) is more powerful than one may think as it encourages reflection and a lasting change in beliefs in those who have made discriminatory remarks or posts. Strossen shows that refuting discriminatory ideas through more speech, education and apologies can be more effective in curbing these harms of hate speech than censorial measures. For example, in 2009, Megan Phelps-Roper created a twitter to share the beliefs of the church that her grandfather founded, Westboro Baptist. Known for their hateful rhetoric, Megan had been a member since she was a child. On Twitter, she became engaged in several conversations with other users, leading her to question the teachings of the Church and eventually leave.
Today social media makes it even easier for an individual to make discriminatory speech whenever they please but also makes it even easier to instantaneously rebut the idea with counter-speech. Strossen notes:
In 2016, a report was issued about counterspeech on Twitter, coauthored by a group of scholars from the United States and Canada. The report, which included the first review of the “small body” of existing research about online counterspeech, concluded that hateful and other “extremist” speech was most effectively “undermined” by counterspeech rather than by removing it.
Other major platforms agree. Facebook encourages counter-speech, stating: “our key initiatives focus on empowering and amplifying local voices. This includes building awareness, educating communities, encouraging cohesion, and directly countering hateful narratives.”
The targets of such speech are more able than ever to talk back. Strossen notes, “…we have seen increasing social justice advocacy nationwide in recent years, with members of minority groups actively leading and engaging in such efforts” (164). This has happened because of upsurge in instances of counter-speech not the implementation of “hate speech” laws.
Consider also the recent Roseanne Barr incident. Her racist tweet cost her a television show and public humiliation. Counter-speech can shame as well as persuade, and both are effective responses that do not require risks of censorship.
Strossen makes it clear that to protect free speech, one must engage in counter-speech, giving us the opportunity to engage in thoughtful discussion and grow as a community. Her book recalls the famous words of Justice Louis Brandeis in Whitney v. California:
The fitting remedy for evil counsels is good ones. . . . If there be a time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.