Can We Do That: On the Regulation of Hate Speech

Since the 2016 Presidential Campaign, the debate on hate speech occupies the attention of the American public. Donald Trump ran a hate-oriented campaign that centered on issues of building the wall and expel Muslims. The victory of Donald Trump legitimized and mainstreamed hate speech. The march in Charlottesville in August 2017 shocked entire America. In The Harm in Hate Speech, Professor Jeremy Waldron argues that the solution for America is to adopt hate speech law just like other western democracy. He defines hate speech as any form of expression that harms the social standing and causes a dignitary harm on the members of minority groups and declares that hate speech damages the public good of inclusiveness. Thus, the government should take the role to regulate hate speech, and hate speech regulation is compatible with a well-ordered society. However, as the analysis in this paper illustrates, his definition of hate speech is vague and problematic. Without crystal limitation on hate speech, government regulation on hate speech might lead to the infringement on the freedom of speech. In the real world, hate speech law is also an ineffective way to eliminate hate speech and causes more controversies than it resolves.

Waldron expertly discusses the damage of hate speech on our society. Waldron believes that the goal of hate speech is to send hateful messages to the members of the minority group and make these messages permanently clear in the society. When people held the banner claiming “Muslim Out,” they sent the clear message to the minorities that “you are not welcomed” and to the society that “we are not alone.” Just like Waldron claims, the hate speeches hold important social value at stake. The hate speech destructs the public good of inclusiveness. Americans are diverse in ethnicities, religions, and races. Each group must accept that the society is “not just for them, but it is for them too.” The destruction of the public good of inclusiveness denies the freedom of choice for individuals of minority groups. For example, the members of minority groups might be rejected for specific services (as shown in the Masterpiece Cakeshop case). Hate speech might also create fear among members of minority groups that significantly eliminate their choices and affect the outcome of their decision. Waldron claims that hate speech possesses an environment threat to social peace. As the hate speech becomes more noticeable step by step, it becomes harder and less natural for the good-hearted citizens to maintain the public good.

Waldron draws a line of hate speech regulation by defining hate speech and dignity. Hate speech is the expression that dignitary harm the individual in the minority community. Dignity is the social standing and status of a member of the society. Therefore, hate speech is the injury of the social status of the individuals in the minority group. Based on his definition, he rejects the “clear and present danger” test because the line drawn by this test doesn’t include the dignitary harms. However, his line to define hate speech is not as clear as he claims, especially with the problem of symbolic speech such as Confederate Flag and statues. At one side, people view Confederate Flag and the status of Confederate generals as the symbol of oppression and racism. The Confederate Flag represents slavery, and the Statues of Confederate generals commemorate the war criminals and the defenders of slavery. Therefore, they are the symbol of hate speech, just like the Nazi flag and the statue of Saddam Hussein. On the other hand, people argue Confederate Flag and the status of Confederate general possess great cultural value. The supporters of the Confederate flag argue that it represents the southern culture that valued by millions of Americans. For example, the hall of fame rock band Lynyrd Skynyrd flies the Confederate Flag during their performance of Sweet Home Alabama. In interviews, the band members claimed that the meaning of Confederate Flag is kidnapped by “people like KKK and skinhead.” The lyric of Sweet Home Alabama express the love of rural South rather than hate and racism (although the lyric contains “In Birmingham, they love the governor,” and the governor refers to the famous southern democrat and the supporter of segregation George Wallace). Some statues of Confederate Generals are over 100 years old; they maintain unique historical and artistic value. The meaning of symbolic speeches is open to the interpretation by the general public. Different people will interpret the same symbol differently; some people might associate a flag or a statue with hateful meaning, other people might only view it as an expression of culture and history. The fine line that separates hate speech from the general expression of opinion drawn by Waldron is vague and unclear. Enforcing hate speech regulates opens the Pandora Box of infringement on civil liberty. By granting government the right to restrict speech without clearly defining the limits of this power, the government will walk down a slippery slope and expand the power beyond the original intention.

As the previous analysis shows, Waldron’s seemly solid line is vague and ambiguous. In reality, the hate speech regulation also invites more problem then it resolves. As B.F. Skinner claims in his famous study on behavioral science, punishment could not change the behavior of people; people naturally learn how to avoid the punishment. As the government regulates a specific form of hate speech, people can convey the same message with a different and unregulated expression. Therefore, hate speech regulation doesn’t necessarily lead to the decline and disappearance of hate speech. Germany after World War II imposed the famous law against any expression of Nazism includes Nazi speeches, symbols and body gestures. The law against Nazism has been considered by many scholars, such as Waldron himself, as a model of hate speech regulation. However, the development of the neo-Nazi party in Germany challenges this concept. Die Rechte is the alt-right neo-Nazi party in Germany that promote anti-Semitism and the supremacy of the Aryan race. Despite facing strict restriction, the group has been attracting supporters and sending messages bypassing the anti-Nazi law. For example, the group members often hold the banners proclaiming “I do not regret anything,” the final statement of Hitler’s right-hand man Rudolf Hess at the Nuremberg Trial. In the march, the members of the Die Rechte party carries the Black-Red-White Stripes flag, the flag of the German Empire during World War I, as a symbol of nationalism. As this example shows, regulation and punishment don’t necessary vanish the hate speech; hate speech will take a new form and bypass the existed regulation.

The hate speech regulation might temporarily sideline hate speech and drive it to the underground. However, the society might face a greater danger of hate speech breakout once the restriction weakens or hate groups find loopholes in the law. The spill out of hate speech in the mainstream media and the eyes of the American public since the 2016 presidential election is a reflection of people’s frustration with excessive and unnecessary political correctness. Before the rise of Donald Trump, hate speech had been sidelined by political correctness and suppressed by mainstream media. After the election of 2016 shocked and shattered the political correctness, the market of ideas suddenly opened for hate speech. Alt-rightists strongly value speaking hatefully under the name of freedom. The concepts of speaking out what oneself believes rather than what is correct and responsible and speaking words that were socially non-permissible not long ago appeal to the individuality and rebellious part of humanity.

The supporter of the hate speech regulation often cite the notions that “hate speech spreads like a disease” and “hate speech encourages hate crime” to justify hate speech regulation. However, the concepts are mysteries without proofs from research. The hate speech and hate group have been receiving more media exposure so in appearance hate speech is growing. In fact, no study shows that the number of people adhering to hate speech or the number of hate speech itself is rising since the presidential election. For people already take a position on hate speech, the events past year reinforced their position. Hate speech also doesn’t encourage hate crime. 2016 has been considered as the breakout year of hate speech because of the election. However, data from FBI shows that the number of hate crime cases in 2016 is the lowest since 2013. As the examples show, hate speech doesn’t spread like a disease, and hate speech doesn’t encourage hate crime. Thus, the cases nullify the justifications of the advocates of hate speech regulation. Waldron identifies the biggest threat to the freedom of speech is the public hysteria. However, the support of hate speech regulation is the outcome of the public hysteria over the emergence and mainstreaming of hate speech in mainstream society.

In The Harm in Hate Speech, Waldron presents the harmful effects of hate speech and encourages a hate speech regulation in the United States. He defines hate speech as expressions that have dignitary harm on the social standing of members of individuals and claims the hate speech infringes on the social good of inclusiveness. However, his line to limit the scope of hate speech is vague and unclear, and hate speech regulation doesn’t solve the problem of hate speech efficiently in reality. The government should denounce hate speech, but it should not regulate and suppress it. John Stuart Mill believes that in an environment of open discussion, hate speech will be sidelined by healthy debate. People with logical reasons will adhere to defend the public goods; thus, hate speech will lose its earth to grow.