Words That Silence

Words That Silence? Freedom of Expression and Racist Hate Speech 1

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Speech and Harm: Controversies Over Free Speech Ishani Maitra and Mary Kate McGowan

Print publication date: 2012 Print ISBN-13: 9780199236282 Published to Oxford Scholarship Online: September 2012 DOI: 10.1093/acprof:oso/9780199236282.001.0001

Words That Silence? Freedom of Expression and Racist Hate Speech 1 Caroline West

DOI:10.1093/acprof:oso/9780199236282.003.0009

Abstract and Keywords This chapter examines the prevailing assumption that the value of freedom of speech itself is necessarily only or best served by permitting racist hate speech. It is argued that anything worthy of the label ‘freedom of speech’ must satisfy three relatively minimal conditions, namely, minimal distribution, minimal comprehension, and minimal consideration. If racist hate speech silences other speech by interfering with its production/distribution, comprehension, or consideration, then racist hate speech may function to undermine, rather than exemplify or enhance, freedom of speech. If so, there might be a free speech argument against permitting racist hate speech. The chapter provides a novel framework within which such claims can be evaluated.

Keywords:   silencing, racist hate speech, free speech, race

1. Introduction

University Press Scholarship Online

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Debates over the regulation of racist hate speech are often set up as posing a choice between free speech and other values (e.g. equality). It may well be that other values would be best promoted by restricting racist hate speech. But I will have little directly to say about that here. My aim instead is to examine the prevailing assumption that the value of freedom of speech itself is necessarily only or best served by permitting racist hate speech. Racist hate speech could function to undermine freedom of speech, rather than to exemplify or enhance it. If so, there might be a free speech argument against permitting racist hate speech.

How (if at all) racist hate speech could undermine free speech turns partly on what it takes for speech to be free. A variety of different accounts of freedom of speech have been proposed, and these may have quite different implications for what kinds of interference with communication can legitimately be taken to limit free speech. For instance, there is a view according to which speech is free just so long as the government does not interfere by imposing coercive restrictions on what people can (or cannot) say. From that vantage point, it is hard to see how racist hate speech could even in principle interfere with anyone’s freedom of speech, for racist hate speakers and their audiences are typically private actors. But this conception seems too narrow an account of free speech. It implies, for instance, that a society in which a small coterie of media barons exert absolute (p.223) control over what opinions can (and cannot) be published or televised counts as one in which everyone is perfectly free to speak, providing that the media barons are private entrepreneurs; and that seems implausible.

On the other hand, there is a possible conception of free speech as requiring a guarantee of a sympathetic and receptive audience disposed to hear the speaker just as they intend to be heard.2 On that picture, it is relatively easy to see how private actors preaching racial hatred and intolerance could interfere with free speech; but, as critics are quick to point out, it is equally easy to see that there is likely to be nothing very special about racist hate speech in this regard. If free speech requires a guarantee of an audience that listens carefully to every word we utter and grasps perfectly exactly what we mean to say, then very few of us are ever really free to speak.

 

 

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The correct conception of free speech plausibly lies somewhere in between these two extremes. I will not attempt to determine exactly where the correct account lies. Rather, I will outline three relatively minimal conditions that I will argue any conception of something worthy of the label ‘freedom of speech’ must satisfy. These conditions are not, or not simply, motivated by commonsense intuitions about what kinds of interference with communication are (or are not) aptly described as making speech unfree, but rather by the sorts of justifications commonly advanced by moral and political theorists in favour of something called ‘free speech’. I will argue that these justifications imply that free speech requires (at least) minimal distribution, minimal comprehension, and minimal consideration. (I say more about what these amount to in part 1). It may be that a plausible case can be made for thinking that free speech requires more than simply the satisfaction of the minimal conditions I will describe—in which case, there may be more ways in which racist hate speech could interfere with free speech than I will discuss here. But my aim is to show what it would take for racist hate speech to undermine free speech under a conception of free speech that ought to be acceptable to all who wish to claim for free speech the kind of value traditionally attached to it. This will provide what may be a somewhat novel—but, I hope, useful—framework within which we can consider the question of whether or how racist hate speech could function to interfere with free speech. That will be my task in part 2.

I should stress that my focus here will be on whether the kinds of moral and political considerations commonly advanced in favour of something called ‘free speech’ necessarily tell in favour of permitting racist hate speech. (p.224) This should be distinguished from the legislative or jurisprudential question of what kinds of communicative expression are (or are not) protected by, say, the First Amendment of the United States Constitution.3 The First Amendment offers one influential view about the nature of freedom of expression.4

But it is by no means the only account available, nor necessarily the correct one. Of course, the two issues may be related. One might think that if constitutional principles turned out to conflict with principles of political morality that

 

 

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would be a reason for revising the constitutional principles (but not, I hope, for revising political morality).

I should also emphasize that my aim is to clarify what it would take for racist hate speech to undermine freedom of speech. Whether racist hate speech does in fact function so as to undermine freedom of speech is obviously an important question, but it depends on further empirical matters that fall largely outside the scope of this paper. My aim then is to show how racist hate speech could undermine free speech, if it functioned in certain ways.

Silencing and the Scope of a Free Speech Principle

The idea that the value of freedom of speech could on occasion best be promoted by regulating speech of a certain type will not come as a surprise to readers familiar with recent feminist work on pornography. ‘[T]he free speech of men silences the free speech of women’, claims Catharine MacKinnon, who argues that regulation of pornography is justified—indeed, required—in order to protect women’s (First Amendment) right to freedom of speech.5

The silencing argument has not found favour with traditional liberal defenders of a right to pornography. The objection has not been to the empirical claims that the production and consumption of pornography may in fact silence women in a variety of ways (by, for example, making it difficult for women to voice their opinions, or preventing their views from receiving a fair hearing, or causing what they say to be misunderstood), but (p.225) rather to the conceptual claim that freedom of speech includes such ‘positive’ liberties as these. The argument that pornography silences women, says Ronald Dworkin, is ‘premised on an unacceptable proposition: that the right to free speech includes a right to circumstances that encourage one to speak, and a right that others grasp and respect what one means to say’.6 He continues,

These are obviously not rights that any society can recognize or enforce…Many political and constitutional theorists, it is true, insist that if freedom of speech is to have any value, it must include some right to the opportunity to speak: they say that a society in which only the rich enjoy access to newspapers, television, or other public media does not accord a genuine right to free speech. But it goes far beyond that to insist that

 

 

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freedom of speech includes not only opportunity to speak to the public but a guarantee of a sympathetic or even competent understanding of what one says.7

I think Dworkin and others are mistaken to suppose that the silencing argument against pornography need rest on the very strong claim that the right to free speech includes a guarantee that what a speaker says will be considered or correctly understood by the audience.8 But let us set this aside, and consider instead a milder and more general question: Is it plausible in principle to suppose that freedom of speech includes nothing more than the opportunity to distribute meaningful sounds and scrawls to a reasonably wide public audience, as Dworkin, in good liberal company, seems to imply?

In thinking about how we should understand the nature of freedom of speech, a useful approach is to begin from the explanations of why it is that the opportunity to produce meaningful sounds and scrawls is valuable; that is, to consider the justifications that are typically offered for protecting something called ‘speech’. ‘Freedom of speech’ is supposed to name a normatively significant kind in moral and political theorizing, so our conception of speech in the context of discussions of free speech should presumably be determined by what the best justification of something called ‘free speech’ justifies us in protecting.

Of course, a number of different justifications of free speech have been offered and there is some disagreement among liberals about which of these justifications is to be preferred.9

But for now we can set aside these (p.226) in-house debates. For although there are differences as to exactly why something called ‘free speech’ is valuable, there is general agreement that freedom of speech involves at base the liberty to communicate—that is to say, the freedom to distribute words and their expressive equivalents is taken to be important because, and insofar as, words (and pictures and the like) are the vehicle by which people communicate their thoughts and views to others. It is not the sounds or scrawls per se that are valuable and worthy of protection. Words in themselves are merely instruments or tools.10 It is the ideas and opinions that words are used to express that are the (either intrinsically or instrumentally) valuable things. If we were creatures that lacked a voice box and communicated

 

 

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with each other wholly telepathically, then presumably the freedom to distribute various grunts and incidental noises would not be the important value liberals take free speech to be. It would be the process by which the thoughts move silently from one head to another that would then warrant protection on free speech grounds. The opportunity to distribute words and the like to a public audience matters because, being the non-telepathic creatures that we are, having the opportunity to distribute words to others is a necessary condition for being able to communicate our thoughts and ideas to them.

 

 

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Free Speech and Comprehension Failure

But it is easy enough to see that it might not be sufficient. The communication of ideas is typically a two-sided process, involving a speaker and an audience. To communicate an idea to another person, a speaker must not simply be able to produce words that can be heard or seen by an audience; the audience must also be in a position to grasp what the speaker means to say by producing those words. Otherwise, no communication in the sense that matters—that is, no communication of the speaker’s thoughts and ideas—can take place.

Elsewhere, I imagined a dictator who implants a device—a ‘Meaning Obliterator’—in the heads of audiences.11 The Meaning Obliterator allows speakers to distribute words, but intervenes so as to prevent would-be audiences from grasping the meaning of the speakers’ words. ‘Overthrow the dictator’, dissidents chant; ‘Numfuttal’, ‘Numfuttal’, ‘Numfuttal’ is all the audience are able to grasp as they hear the dissidents chant. The device allows speakers to distribute meaningful noises, but it makes those sounds seem like meaningless gibberish to the audience.

(p.227) If having the opportunity to distribute meaningful words to a reasonably wide public audience were all it took for speech to be free, then dissidents in the situation just described would be free to speak. But it seems clear that they are not free to speak in any meaningful sense. By implanting the Meaning Obliterator in the heads of audiences the dictator renders the speakers’ words useless: they cannot use them to communicate their thoughts and ideas to others who may wish to hear them. By so interfering, the dictator silences would-be speakers just as surely as had he deprived them of the opportunity to distribute words at all—for instance, by locking them away in a soundproof room. Preventing someone from producing or distributing words is one way to prevent them communicating their views to others; preventing the audience from grasping the intended meaning of the words that are produced is another.

If the opportunity to communicate our opinions and ideas to one another is the usual grounds for valuing free speech (or is entailed by the grounds for valuing free speech) then free speech requires that, in addition to being able to hear or see speakers’ words, audiences are not entirely prevented from

 

 

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grasping the intended meaning of those words. So it would be a mistake to suppose that free speech, if it is to be the value liberals take it to be, requires nothing in the way of an audience being able to grasp what a speaker means to say. Liberals should accept that freedom of speech requires at least something in the way of the opportunity to have one’s words comprehended, as well as heard; otherwise, by their own lights, what is protected is not ‘speech’ in any meaningful or normatively significant sense.

Of course, there are important further questions about precisely how to spell out a comprehension requirement so as to avoid imposing what may seem to be unreasonably cumbersome duties and disabilities on the audience. In cases where an audience does not speak the speaker’s language, for example, comprehension will not be able to occur. But presumably few of us would want to say that it is a requirement of free speech that audiences learn every human language; or even every language whose speakers they are likely to encounter, which would be burdensome enough in contemporary multilingual societies. Similarly, if speakers express themselves unclearly (if they use convoluted language or have a thick accent, for example), comprehension may fail to occur through no fault of the audience. We presumably do not want to say that the speaker is rendered unfree to speak by her own lack of clarity.

But we can agree that free speech does not require comprehension on this scale without insisting (implausibly) that it requires absolutely nothing in the way of the possibility of comprehension. We are not forced to choose between the view that free speech requires a guarantee of perfect (p.228) comprehension of what a speaker says, at one extreme, and the view that it requires nothing in the way of comprehension, at the other. Both these positions seem unacceptable; and there are many other possibilities in between. For instance, without committing ourselves to any of the consequences just described, we can say that at the very least freedom of speech requires that comprehension of a speaker’s words is not systematically prevented by the actions of another agent. The following minimal comprehension requirement captures this basic idea, without imposing the kinds of cumbersome duties and disabilities on audiences just described: free speech requires that were a speaker to produce the appropriate words, and were an audience to want to hear what the speaker

 

 

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has to say, there is no agent (individual, group, or institutional) whose actions systematically prevent the audience from comprehending the intended meaning of the speaker’s words.12

So understood, freedom of speech remains a negative liberty. It requires not a guarantee of uptake comprehension, to which Dworkin and others rightly object; but rather that comprehension is not prevented by the actions of another agent. Individuals are not entitled to all means necessary to ensure that they will be correctly understood, but others are not permitted to act in ways that prevent comprehension from occurring. It allows, with Dworkin, that a speaker is not silenced in the relevant sense when she is discouraged from speaking by an unsympathetic speech environment in which what she has to say is likely to be ridiculed. It is in fact silent on the question of what free speech requires in the way of the possibility or opportunity to produce and distribute words. And it does not imply that free speech has been infringed when an audience chooses to ignore or dismiss what a speaker has to say. So understood, the requirement seems liberally acceptable. Something like it seems to be required if a free speech principle is supposed to protect the communication of ideas, as (p.229) opposed merely to the opportunity to make meaningful noises and scrawls.

 

 

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Free Speech and Minimal Consideration

Arguably, however, freedom of speech includes more than minimal distribution and comprehension of words. For it seems to take more than the opportunity to distribute words whose comprehension is not interfered with in the ways just described for speech to be useful in many of the ways that liberals claim it to be.

To see why, we can imagine another science-fiction case. The ‘Input Buffer’ is a device that can be implanted in the heads of audiences.13 The device allows the speaker’s words to be distributed and comprehended, but it prevents the information that is heard and understood from entering as input into the deliberations of receivers, and so from posing any threat to receivers’ existing beliefs and desires. The device allows the receivers’ beliefs and desires to evolve naturally, except that they are completely insensitive to what they have heard. Of course, implanting such a device would infringe the liberties of receivers. But there is an important sense in which it would also interfere with the interests of speakers. To be sure, the device does not actually prevent communication from occurring: it permits the speaker’s words to be both heard and understood by anyone who cares to listen. But it makes communication pointless. When we attempt to communicate with others—when we seek to inform or persuade them, for instance—we typically do so in the reasonable expectation that what we say stands some, non-negligible chance of having some impact on them. If we are free to say what we like, but whatever we say stands little or no chance of influencing those around us, regardless of its merits, then while we can speak, our speech will be futile.

The Input Buffer is, of course, an extreme case. It makes it the case that speakers have no chance whatsoever of informing or persuading others through speech, however rationally compelling the case they put to others may be. I use it only to illustrate that there are at least some ways in which consideration might be interfered with that everyone is likely to agree constitute unacceptable interference with expressive freedom. The question is then not whether free speech requires the possibility of having one’s speech considered, but rather how much it requires and exactly what kinds of interference with it we should take to diminish free speech. It is, of course, open to someone to deny this, and to insist that a device such as the (p.230) Input Buffer poses no obstacle

 

 

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whatsoever to free speech. But then it would be difficult to claim for free speech the sort of value that many liberals think attaches to it, a significant portion of which is widely taken to derive from its benefits in informing the public and private deliberations of audiences.14

The point was well appreciated by Mill, who is quite explicit that the benefits of free speech can only obtain where opinions are not simply voiced, but also attended to: ‘[T]ruth has no chance’, writes Mill, ‘but in proportion as every side of it, every opinion which embodies even a fraction of the truth, not only finds advocates, but is so advocated as to be listened to’.15 It is clear that by ‘listened to’ Mill meant more than merely that words can be heard by an audience. The expression must also be able to be considered, so that such merits as the ideas may have can emerge to inform the deliberations and actions of receivers. Mill thinks free speech is valuable as a precondition for knowledge and the fulfilment of the progressive interests of humankind; and knowledge requires allowing one’s existing beliefs to be tested against competing ones, which in turn requires attending to competing ideas expressed by others and critically assessing those ideas according to their intrinsic merits. In other words, a Millian justification of free speech as a necessary precondition for knowledge implies that, in addition to a distribution requirement, there is also what we might call a consideration requirement on speech. For speech to play a role in facilitating knowledge, audiences must reasonably often be in a position not simply to hear what speakers say, but also to attend to it, to give it some consideration, and to update their beliefs and desires in light of the perceived merits of the information received. This, needless to say, threatens to impose duties on audiences that go well beyond those that many contemporary liberals are prepared to accept.16

(p.231) Of course, like comprehension, attention and consideration can come in degrees; and a consideration requirement might be formulated to require correspondingly more or less of audiences in the way of attention and consideration. A very strong view would hold that each person has a duty (albeit perhaps an imperfect one) to go forth, ears pricked, in search of every possible idea that a speaker somewhere might be expressing, to give careful and fair- minded consideration to every single one of them (no matter how apparently trivial or absurd) and scrupulously to update

 

 

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their existing beliefs and desires in light of their deliberations. A consideration requirement of this kind would demand a superhuman level of single-minded dedication to the cause of knowledge, would crowd out other important values and interests in our lives, and would probably, in any case, be counter-productive (insofar as, over a certain threshold, more information and consideration tends to impede, rather than enhance, successful deliberation). The attainment of knowledge or informed decision-making plausibly neither justifies nor requires consideration on this scale.

But, once again, considerations of these kinds need not lead us to reject wholesale the idea that free speech requires something in the way of consideration. Even skeptics may want to agree that the implantation of Input Buffers in members of the populace would interfere with communication in ways that undermine the point and value of speech. So while heavy-handed duties of consideration may not be in order, some degree of audience attention and consideration may seem to be necessary for speech to be valuable in the way that Mill, among others, supposes it to be.

A more moderate consideration requirement might have it that audiences have a prima facie duty at least not to systematically and dogmatically block their ears to certain types of ideas with which they are presented, even if they may legitimately ignore some token ideas; and that they make at least some effort to evaluate information fair-mindedly and to update their own beliefs and desires accordingly, so that if overwhelming and obvious reasons are given for modifying their beliefs or desires they may. A still more minimal consideration requirement would recognize no positive duties of attention or consideration at all, holding instead only that agents refrain from acting in ways that systematically prevent the speech of another from being attended to or considered.

Whatever exactly is required for free speech in the way of audience attention and consideration, we can nevertheless agree that in general (p.232) things go better for speech when there are not obstacles that systematically prevent various ideas from receiving attention and consideration (so that such merits as they may have may emerge to improve the quality of public and private decisions); and, conversely, that in general things go worse for speech when there exist barriers to attention and consideration that mean that certain

 

 

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ideas stand little or no chance of gaining currency, regardless of their merits. Barriers to consideration may represent a genuine cost to free speech values that needs to be factored into an overall determination of whether, on balance, a given policy enhances or diminishes free speech—even if this cost may be outweighed by greater benefits for speech elsewhere (say, in the form of increased distribution or comprehension).

In this section, I have suggested that closer attention to some of the considerations commonly advanced in favour of free speech suggest that we should think of free speech as having not one, but three, dimensions: 1) production and distribution; 2) comprehension; and 3) consideration. If so, when evaluating whether a particular policy is likely to enhance or else to diminish free speech we must take into account not only its implications for what words can be produced and distributed, but also the likely effects on comprehension and consideration. Permitting racist hate speech may allow for more words to be produced and distributed than would regulating it—although, as I discuss in the following section, even this might be disputed. But if the benefits of permitting greater production and distribution of words come at the cost of significant losses to comprehension and/or consideration elsewhere, then the net effect of permitting racist hate speech may in fact be to diminish freedom of speech. I turn now to exploring how racist hate speech could interfere with communication along each of these dimensions.

2. Racist Hate Speech and Silencing

 

 

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Racist hate speech expresses derogatory feelings about, or attitudes towards, people on the basis of their race in order 1) directly to inflict psychological injury on them (in the case of face-to-face encounters) or 2) to incite in third parties hostility towards or hatred for them, or both. So defined, racist hate speech differs from merely racially discriminatory speech (speech that advocates a negative view of a particular racial group) in that its primary function or purpose is to cause psychological injury to its targets and/or to arouse hostility or hatred for the group targeted.17

(p.233) This way of defining racist hate speech is in one respect broader than some alternative definitions, and in another way narrower. It is narrower in that it does not include in the category of racist hate speech expressions whose primary function is merely to insult targets on the basis of their race. Being insulted is unpleasant, but it does not in itself justify regulation of speech; and it misconstrues the distinctive nature of the harm that a visceral expression of racial hostility causes to those it targets to characterize it merely as insult.

The definition is broader than some alternative definitions in that it does not restrict racist hate speech to that which employs racist epithets (e.g. ‘nigger’, ‘kike’, ‘coon’, ‘spic’) in order to wound or stigmatize.18 Restricting racist hate speech to speech that contains racist epithets has the obvious pragmatic virtue of singling out a relatively narrow class of speech, clearly distinguishable by its content from racially discriminatory speech that may be a legitimate part of scientific, historical, or political debate. But it is unlikely that this narrow definition serves to pick out a natural social kind. Using derogatory or hateful epithets is one way to incite in an audience hatred or contempt for those so labelled. But it is not the only way. For example, if members of a racial group are repeatedly pilloried as ‘animals’—whether verbally, or in visual caricatures that depict them with exaggerated ape-like features, living in caves or jungles, or the like—this plausibly functions to incite in audiences hatred or contempt for those so depicted, regardless of whether an epithet such as ‘nigger’ additionally appears. While the presence of epithets is a marker of racist hate speech in my view (insofar as it is a generally reliable indicator that the speech is designed to

 

 

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inflict psychological harm or to incite racial hatred), I do not take it to be either necessary or sufficient for it.

Racist Hate Speech and Production Interference

As we noted in part 1, one way in which communication may be interfered with is when there are barriers or blockages to the production and/or distribution of words and their expressive equivalents. In the most extreme kind of case, would-be speakers are literally prevented from producing or distributing words: they are gagged or locked away in a soundproof room, for instance. Uncontroversially, interference of this kind constitutes a limitation on free speech. Close to this extreme are cases where would-be speakers are intimidated into simple silence through threats of violence or significant retribution of other kinds. Many political dissidents in Burma or Zimbabwe at present are silenced in this sense. They are not literally (p.234) prevented from producing or distributing words of dissent; in some sense of ‘could’, they could speak. But they know that, if they do, there is a very real chance that they will end up beaten, incarcerated, or dead. In a situation where speaking out would be very costly, only the exceptionally courageous (or foolhardy) are likely to speak. Most people, quite reasonably, will remain silent.

Could racist hate speech silence by threatening its targets into simple silence? Charles Lawrence thinks that it might. He writes,

When the Klan burns a cross on the lawn of a Black person…the effect of this speech does not result from the persuasive power of an idea operating freely in the market. It is a threat; a threat made in the context of a history of lynching, beatings, and economic reprisals that made good on earlier threats…The threat does not need to be explicit because racially motivated violence is a well-known historical and contemporary reality…The Black student who is subjected to racial epithets, like the Black person on whose lawn the Klan has burned a cross, is threatened and silenced by a credible connection between racist hate speech and racist violence.19

Lawrence is surely right that an important part of what distinguishes racist hate speech from merely offensive speech and garden-variety name-calling is its place in a broader network of practices of racial discrimination that includes,

 

 

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among other things, a contingent but very real association with racist violence. Racist hate crimes are typically preceded and accompanied by racist hate speech; and both victims and perpetrators generally know this. Racist hate speech is the clearest expression of the kind of hostility that fuels racial discrimination and violence, short of the acts themselves; and it indicates to its targets the presence of these attitudes and behavioural dispositions in the speaker. For this reason, it is very plausible to think that racially hostile speech could sometimes quite reasonably be interpreted by its targets as constituting a threat. For example, the message ‘Death nigger’ that appeared on the door of a counsellor at Purdue University might reasonably be interpreted by its target as a threat. So too may the message, ‘The Knights of the Klu Klux Klan are watching you’, that appeared on flyers distributed to students by White Supremacists at Northwest Missouri State University.20 It is true that even speech of this most overtly threatening kind does not typically explicitly threaten its targets for speaking out. But it does not need to. If it is public knowledge that speaking out in a certain situation carries with it a credible risk of serious retribution, then this is usually enough to keep most (prudent) would-be speakers silent.

(p.235) While there are particular instances of racist hate speech where it seems clear that the speech constitutes a threat, it may seem less clear that racist epithets or invective in general have this function. Whether a particular instance of speech is reasonably interpreted by its target as a threat seems sensitive not simply to the general social environment in which it occurs, but also to the particular context in which it occurs. Even speech with explicitly threatening content may perhaps not count as a threat if it is uttered in a context where the nature of the speaker or the circumstances make it highly unlikely that the threat could ever be carried though. Compare: 1) a frail, old, wheelchair-bound white man says, ‘Nigger, I’m going to give you what you deserve’, to a physically imposing, successful black lawyer passing by in a shopping mall; and 2) the same utterance produced by a white male employer to a junior black employee. The latter could reasonably be interpreted by its target as a threat; but the former probably could not. Perhaps one could argue that even in the former case the utterance counts as a threat in virtue of being a token of a type of speech whose typical instances are associated with racial discrimination and violence.21 If so, then

 

 

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even narrow or minimal conceptions of free speech will imply that racist hate speech is a proper object for regulation. The right to free speech does not extend to the right to use speech to threaten or intimidate others.

But racially hostile speech may not need to count as a threat in order to have the effect of deterring its targets from producing words. Describing some of the immediate effects of such speech on its targets, Lawrence writes:

[T]he visceral emotional response to personal attack precludes speech. Attack produces an instinctive, defensive psychological reaction. Fear, rage, shock, and flight all interfere with any reasoned response. Words like ‘nigger’, ‘kike’, and ‘faggot’ produce physical symptoms that temporarily disable the victim, and the perpetrators often use these words with the intention of producing this effect. Many victims do not find words of protest until well after the assault, when the cowardly assaulter has departed.22

Racist hate speech does not function as an invitation to conversation. It does not offer reasons or arguments with which its audience can engage; and the visceral hostility it expresses effectively forecloses, rather than opens, the opportunity for further discussion. In the immediate aftermath of a verbal attack, it is rare that victims are able to produce words at all, let alone to gather themselves together to offer a clear-headed and balanced (p.236) response of the kind likely to be conducive to a rational discussion of the issues (even supposing, as seems unlikely, that a hate speaker were of a mind to engage in rational discussion).23 This explains why it may be somewhat psychologically unrealistic to suppose that here the corrective to bad speech is more speech—at least, if ‘more speech’ is supposed to come from those directly targeted by hate speakers.24 And there are particular instances where it would clearly be ridiculous to expect those targeted to attempt to counter hostile expression with more speech to the contrary. When confronted by a hate-filled speaker in a lonely location, or in a bar surrounded by other people who clearly share the speaker’s attitude, it would be plain foolhardy for targets to attempt to use the occasion as an opportunity to persuade the speaker of the error of his ways.

 

 

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In addition to its immediate disabling effects, racist hate speech may have indirect and longer-lived silencing effects. There is considerable evidence that being subjected to racist verbal abuse reduces the self-esteem of targets, especially when individuals are targeted repeatedly. It is not hard to see how this could work. If others repeatedly tell you that you are worthless or contemptible—if they say that you are dumb, dirty, or lazy, simply in virtue of your race which you are powerless to change or conceal—then it is likely that eventually you will come yourself to believe that this is so, especially if the message of inferiority is reinforced in subtle and not so subtle ways by the culture at large.25 (One needs only to think of the well-known effects on children of parental verbal abuse to get a sense of the way in which racist hate speech may impact psychologically on its targets; and indeed there is evidence that some of the effects of racist abuse on its targets are not dissimilar to the short-term effects of sexual abuse on children.)26 Low self-esteem has numerous adverse outcomes. One less commonly emphasized effect concerns its impact on speech. Individuals who suffer low self-esteem tend to believe they have nothing worth saying, and so are generally less likely to voice their opinions. Even when they do speak, they are less likely to persist in arguing their case in the face of disagreement or opposition. They tend to seek affirmation from others and typically desire to avoid confrontation. Insofar as being subjected (p.237) to racist abuse contributes to a process whereby targets come to internalize feelings of worthlessness, it makes it less likely in general that they will speak at all; and less likely still that, when they do speak, the opinions that they voice will be ones that contest established opinions.27

In these and other ways, racist hate speech may cause those it targets to withdraw from participation in public life and discourse. This is unfortunate for society as a whole, insofar as it adversely affects the quality of the deliberations that take place without the benefit of their input. But it is especially unfortunate for those who are silenced, not least because deliberations that take place without their input may issue in decisions that fail to take account of their interests. While everyone may lose if some people are deterred from participating in collective decision-making, especially if those

 

 

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silenced have worthwhile things to say, those who are silenced are likely to bear a disproportionate share of the loss.

This is to focus on the effects that racist hate speech may have on its targets’ propensity to produce words and to participate in public discussions. But it might be claimed that these costs are offset by greater production and distribution elsewhere. When publicized, incidents of racist hate speech can and do prompt further discussion—typically by others at a later time— about the importance of values of tolerance and mutual respect, and even about the permissibility of racist hate speech itself. Taking these downstream effects into account it could be that, even if racist hate speech deters members of minority racial groups it targets from speaking out, its net effect is to enhance the production and distribution of words in the community.

In the end, it is an empirical matter whether the net effect of permitting racist hate speech is to enhance or to diminish the number and variety of words that enter the public arena for consideration. But suppose that it were true that permitting racist hate speech resulted in more words being produced and distributed than would be the case if it were regulated. There are still at least two reasons why it might be too hasty to conclude that free speech is thereby enhanced. First, permitting or enhancing the production and distribution of words of a certain type will only enhance free speech if it does not bring with it significant losses to communication (p.238) along the dimensions of comprehension or consideration. If more words are produced and distributed, but the cost of this extra production and distribution is that other ideas can be less well comprehended or considered, then the net effect may be to diminish free speech, not to enhance it. (How racist hate speech could affect comprehension and consideration is the focus of the next two sections.)

Second, one might think it matters for free speech not merely how many words can be produced and distributed in a community, but also how the opportunity to produce words (and to have those words comprehended and considered) is distributed among the different members of the community. Suppose that the policy that results in the greatest total production and distribution of words in a community also has the result of making it considerably less likely that some members of the community will speak. More words are

 

 

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produced and distributed overall, but at the cost that some people have less opportunity to speak. Does this policy enhance or diminish free speech?

The answer may turn partly on whether one accepts a consequentialist or a non-consequentialist approach to free speech. If one thinks of the value of free speech as grounded in some agent-neutral value (e.g. truth), then how the opportunity to speak is distributed among the different members of the population will matter only indirectly, insofar as it bears on the prospects for the emergence of truth. If, on the other hand, one thinks of free speech as an agent-relative value that each individual member of society has an interest in, then it will be a matter of direct concern if a policy has the effect of differentially deterring some people from expressing their views—even if this leads to more speech overall, and even if you think that what those silenced would have said can be perfectly well or better said by someone else. While a consequentialist approach to free speech may be willing to allow the disabling of some speakers if it leads to a better outcome overall, non-consequentialists are likely to regard it as a matter of direct concern if racist hate speech has the effect of differentially rendering some (e.g. members of racial minorities targeted by it) significantly less able or likely to speak.

In this section, I have considered a number of ways in which racist hate speech could interfere with the production and distribution of words. If Lawrence is right that the use of racist epithets threatens or intimidates its targets into simple silence, then racist epithets will deserve no protection on free speech grounds, even on a narrow conception of free speech. Whether silencing of the other kinds discussed could count as limiting free speech will depend on whether it is plausible to think that free speech requires anything more than minimal production and distribution. The distinction between interference that limits free speech and that which (p.239) does not is often thought to be marked by a distinction between ‘coercive’ and ‘non-coercive’ forms of interference. The distinction is supposed to be between situations in which we are ‘forced’ in a way that seems especially bad to say (or not to say) something and those in which we are not. But the distinction between ‘coercive’ and ‘non-coercive’ kinds of interference is really not very clear, partly because coercion seems to come in degrees as well as kinds. While it would be

 

 

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trivial to say that anything that exerts some external causal influence over what we do (or do not) say counts as ‘coercive’, it is not trivial to single out some particular set of circumstances (e.g. social persecution) that makes it considerably more difficult for members of some groups in society to speak than it is for others. Even if we think it would be a mistake to view interference of this kind as falling in the category of objectionable coercion, we may nonetheless wish to recognize that at least sometimes it may constitute a prima facie cost to freedom of speech; a cost that we may wish to factor into an overall determination of whether, on balance, permitting racist hate speech enhances or retards free speech.

 

 

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Racist Hate Speech and Comprehension Failure

In part 1, I described an extreme case of comprehension failure involving a device (the Meaning Obliterator) which functions to prevent audiences from comprehending speakers’ words entirely. Even skeptics are likely to agree that interference of this kind undermines free speech (otherwise, the commitment to free speech threatens to appear a peculiar fetish for the production and distribution of meaningful noises and scribbles). The Meaning Obliterator is, of course, the stuff of science fiction. But once it is apparent how communication could be prevented by the operation of such fictional devices, it is easier to see how it could—at least in principle—be prevented by less far-fetched means.

Consider one type of case, much discussed in the literature on pornography and silencing.28 A woman says, ‘No’, intending to refuse sex. But her audience fails to recognize her intention to refuse, perhaps because he believes that women are coy and wish not to appear sexually forward. Let us set aside the empirical question of whether there in fact are men like this, i.e. men who literally believe that a woman who says ‘No’ does not intend to refuse sex by so speaking. There is certainly a nearby possible world in which there are such men. In that world, a woman who says ‘No’ will be unable to use the word ‘No’ to communicate her (p.240) opinion—namely, refusal— to her audience. Although she can utter the appropriate words, something prevents the audience from understanding what she means to say by producing them in that context. What prevents the audience from grasping the intended meaning of the speaker’s words in this case is not a science fiction device, but background beliefs held by the audience (perhaps tacitly) about women’s nature and behaviour in sexual situations. Some theorists have argued that women are in fact differentially silenced in this way; and that pornography bears significant responsibility for it by producing in consumers beliefs that render them unable to recognize women’s communicative intentions.29

Taking our cue from this example, one way in which racist hate speech could interfere with comprehension would be by producing in its audience beliefs that prevent them from recognizing the communicative intentions of speakers from the minority racial groups that it targets. However, racist hate speech could undermine comprehension in a slightly different and considerably more radical way than the ‘no-means-yes’

 

 

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case just described. Pornography prevents comprehension, if it does, by producing in its (mostly male) audience beliefs that prevent them from grasping the nature of women’s communicative intentions in certain contexts. Racist hate speech could in principle prevent comprehension in a yet more extreme way: by producing in its audience beliefs that prevent them from recognizing that the speaker has any communicative intentions at all. While pornography may change audience perceptions of the meaning of women’s utterances in sexual contexts, racist hate speech could, in the extreme case, remove it altogether.

A couple of more general examples will help to illustrate both the kind of silencing that I have in mind and how it might occur. Suppose a professional philosopher were to utter the sentence, ‘Descartes was a very fine philosopher’. This is a meaningful sentence in English. Competent English speakers who know a little about philosophy or the history of thought will be able to grasp its meaning and will take it that, by producing this sentence, the speaker means to communicate to them his or her commitment to the proposition it expresses. Suppose, by contrast, that this sentence were to be produced by a parrot. Nothing about the content of the sentence has changed. It remains a meaningful sentence in English, and appropriately acculturated English-speaking audiences can grasp that meaning. But no one would take a parrot that produces this sentence to mean anything by it. Notwithstanding what we now know about the (p.241) cognitive and linguistic abilities of many species of parrot, no one would expect even an exceptionally smart parrot to be sufficiently well cognitively equipped and versed in human intellectual traditions as to be able to grasp the content of what it has said. The parrot is merely parroting or mimicking a grammatical string of meaningful words, presumably one it has overheard or has been trained to say, in much the same way as young children sometimes repeat a string of words that they have heard uttered by their parents whose content they cannot yet understand (‘High interest rates are bad for the economy’, for example).

These cases provide a general illustration of how a speaker’s ability to communicate an opinion to others is conditional, among other things, on audience beliefs (tacit or otherwise) about the cognitive abilities of the speaker. If an audience believes that a speaker lacks the cognitive wherewithal to

 

 

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understand what they say then, even though the speaker can produce the appropriate words, she will be unable thereby to communicate her opinion to others.

In the examples just described, the audience’s beliefs about the speaker’s cognitive abilities are correct. Plausibly, a parrot or a very young child really is incapable of understanding the proposition expressed by the sentence ‘Descartes was a very fine philosopher’ or ‘High interest rates are bad for the economy’. So whatever a parrot or a young child may be intending to do by producing those words, it is not to communicate that opinion to others. Since the speaker is incapable of having the opinion, the fact that others believe they cannot does not prevent them from communicating it. But suppose that a speaker is in fact capable of grasping the meaning of the words they produce, while the audience falsely believes that they are not. In that case, the speaker would be prevented from communicating their opinion by the audience’s (false) belief.

This is, of course, an extreme case. It may seem far-fetched to suggest that anyone could seriously take the cognitive capacities of adult human beings to be akin to those of a parrot or a child, whatever the colour of their skin. Perhaps. But absurd though such ideas may seem to many educated people now, it is worth bearing in mind that they were widely held, indeed mainstream.30 People said that people of colour were sub- (p.242) human, more closely related to monkeys than to human beings. It was said that they were like children: unable to use reason to moderate their desires, to make rational decisions, or to entertain complex ideas or plans. Admittedly, it is hard to know how many people genuinely believed these things, and how many merely professed to believe them as a convenient post facto justification for slavery and other racial oppression. But considerable effort was certainly put into showing that they were true. In 1906, for instance, a series of widely publicized papers by Robert Bennett Bean appeared in reputable scientific journals of the time purporting to offer scientific ‘proof’ of the inferiority of the Negro based in ‘peculiarities of the Negro brain’. Bean’s findings of differences in the shape and size of the brains of African-Americans compared with those of whites led him to conclude that ‘the Negro evidently stands in an intermediate position [between]…man and the orang-outang’.31 In April 1907 an editorial in American Medicine sought to make clear

 

 

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the broader social significance of Bean’s findings. Bean had identified ‘the anatomical basis for the complete failure of the negro schools to impart the higher studies—the brain cannot comprehend them any more than a horse can understand the rule of three’. The editorial continues, ‘[L]eaders in all political parties now acknowledge the error of human equality…It may be practicable to rectify the error and remove a menace to our prosperity—a large electorate without brains’.32 The author of these comments was no marginalized racial extremist, but a respected member of the medical establishment.

Although subsequently thoroughly discredited, work such as Bean’s forms part of the historical and cultural backdrop to present-day racist hate speech. Much racist hate speech implicitly or explicitly recalls and endorses these historically prevalent views about the natural inferiority and limited intellectual capacities of non-whites, by labeling them ‘animals’ or ‘monkeys’, attributing to them traits associated with monkeys, or depicting them in visual caricatures with exaggerated ape-like characteristics, living in trees or in jungles, or the like. (‘Nigger, do you want some bananas? Go back to the jungle’ is one fairly typical example.) Since racist hate speech expresses ideas such as these, it could produce or reinforce in its audience beliefs of this kind. (The very familiarity of these ideas may make them appear considerably less incredible to contemporary audiences than they otherwise might.) Messages of this kind may reproduce or reinforce in audiences the belief that Blacks are by nature intellectually simple, (p.243) incapable of complex or fully rational thought. If so, then among the effects of racist hate speech will be to prevent Blacks from communicating their opinions to others in a quite radical way: by preventing them from communicating all but the most simple opinions entirely.

To what extent, if at all, racist hate speech causes anyone to believe that Blacks and other people of colour are literally incapable of entertaining complex ideas or of rational, independent thought is an empirical issue that cannot be settled from a philosopher’s armchair. So far as I am aware, no studies to date have investigated the effects of racist hate speech on comprehension, so we have as yet no firm evidence either way. But racist hate speech certainly could interfere with comprehension in this way, and we should not let our own liberal sensibilities blind us to this possibility. If racist hate speech did cause comprehension failure of this kind, then even

 

 

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skeptics should agree that there is a clear sense in which considerations of free speech would not protect racist hate speech. Like threats and intimidation, words that cause comprehension failure of this kind are not ‘speech’ in the relevant sense.

One might suspect (and hope) from the armchair that cases of such extreme comprehension failure are in fact comparatively rare. The question would then be whether there are actual cases of comprehension failure that are sufficiently close to this extreme to which racist hate speech contributes.

Racist Hate Speech and Consideration Failure

We should distinguish comprehension failure from another kind of silencing that might occur when, for instance, an audience is caused to think that speakers are intellectually limited or otherwise inferior. In this case, the audience grasps what the speaker means to say perfectly well, but ignores it or dismisses it out of hand because they believe the speaker is not the kind of person worth listening to. This constitutes consideration failure. There is considerable evidence that racist hate speech—especially when directed by a member of a dominant group against a member of a historically marginalized group—functions to undermine the attention and consideration that is paid to the speech of those it targets.33

This is not surprising. If certain groups are sufficiently pilloried this may have a purely causal impact on the audience, such that they are less likely to attend to what members of the targeted group have to say or to give it much consideration. Here is Lawrence again:

(p.244) Racist speech…distorts the marketplace of ideas by muting or devaluing the speech of Blacks and other despised minorities. Regardless of intrinsic value, their words and ideas become less saleable in the marketplace of ideas. An idea that would be embraced by large numbers of individuals if it were offered by a white individual will be rejected or given less credence if its author belongs to a group demeaned and stigmatized by racist beliefs.34

The point here is an important, if familiar, one. How much attention and consideration is paid to what a speaker has to say varies in accordance with the esteem in which the speaker

 

 

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is held in a community. Esteem matters less for a speaker’s ability to communicate ideas that conform to established opinion. Accepted opinions bring with them credence of their own; and the credence attached to established ideas may in fact sometimes spill over to confer additional credibility on the speaker in the eyes of the audience. Esteem is absolutely critical, however, when it comes to a speaker’s ability to communicate new or unfamiliar ideas, especially ideas that challenge prevailing orthodoxies. When a member of a respected group in society expresses an unorthodox or unpopular opinion they may not succeed in persuading others to their point of view, but their opinion tends at least to be listened to and given some consideration. This occurs simply in virtue of the fact that, however implausible the idea may at first sight seem, it is the opinion of someone esteemed, someone generally taken to be worth listening to. But when members of a group generally held in low regard express an unorthodox or unpopular view, that opinion is considerably less likely to be attended to or considered—at least, absent a conspicuous counter-veiling reason for thinking that the speaker in question has some special domain-specific expertise regarding the particular subject matter at hand.35

This, I take it, is part of what Catharine Mackinnon has in mind when she notes that powerful and respected members of society get to do more, say more, have their words count for more, than do the powerless.36 The ability (p.245) to have one’s speech attended to and considered by others is both a consequence of occupying a position of social power and part of what constitutes and maintains that position of power, for it is a significant part of what enables individuals to use speech to influence others and so to shape the social and political environment around them. Conversely, the inability to have one’s speech attended to and considered is both a mark of powerlessness and part of what constitutes one as powerless. Those whose speech is widely ignored or unreflectively dismissed cannot use speech, as the powerful can, to influence the beliefs and attitudes of others and, through this, impact on the community around them.

It should be clear why consideration failure is of special concern when those affected are members of historically marginalized groups. It is not that oppressed minorities are more virtuous or more likely to be right, although this may sometimes be true. It is rather that consideration failure can

 

 

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here form part of a self-reinforcing cycle of marginalization. Many of the groups most commonly targeted by hate speech have quite literally been denied a voice in public affairs. Only comparatively recently have many of them been granted the right to vote, for instance. As a result, they live in a society whose dominant culture and institutions have arisen substantially without their input and often without much if any concern for their interests. Effecting social reform by means of rational persuasion requires that members of these groups are in a position to use speech to challenge established patterns of thought and practice. This in turn requires that their views— which are likely frequently to be unfamiliar and sometimes confrontational—stand a reasonable chance of being given some consideration by others. Only then can minority views genuinely compete with established opinion. But the attitudes of intolerance and disrespect that underpin and sustain existing discrimination may themselves prevent the views of those disadvantaged from receiving the fair hearing required to challenge these attitudes. Insofar as racist hate speech functions to reproduce and reinforce in its audience attitudes of hostility and contempt for minority groups it targets, it may operate as a kind of protective buffer to the ideology of racism, shielding it from challenge by sapping the power of minority speech to contest it. This cycle must somehow be interrupted if members of historically marginalized groups are to have a reasonable chance of reshaping the moral and political environment through speech.

Conclusion

In part 1, I suggested that free speech has not one, but three dimensions: production and distribution; comprehension; and attention and consideration. In part 2, I sketched a number of ways in which racist hate speech (p.246) could interfere with communication along each of these dimensions. In determining whether free speech considerations tell for or against permitting racist hate speech we need to balance the benefits of allowing the production and distribution of words of racial hate against its costs, to take into account its likely effects of comprehension and consideration, as well as production and distribution. If permitting the production and distribution of words of a certain kind has the result that other words cannot be comprehended or considered (as in the

 

 

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extreme cases), then restricting those words may enhance, not diminish, free speech.

Notice that these trade-offs are not between free speech and other values, but between various dimensions of free speech itself. Some liberals have argued that regulation of hate speech should be resisted as a matter of principle because our commitment to free speech must be absolute.37 The objection here is to the proposal that free speech can be traded off in the service of other values (e.g. equality). That is not my suggestion here. My point is rather that, even if the commitment to free speech is taken as absolute, we may be faced with difficult questions about how to balance the interest in being able to produce and distribute words of a certain kind against the interest in being able to have words comprehended and considered. Where permitting words of a certain kind to be produced and distributed brings with it the costs that other words can be less well comprehended and considered, we must decide how these costs and benefits should be balanced against each other in order to determine what it is that is deserving of absolute protection. The prospect of such balancing could only be avoided if we insisted that free speech demands that the production and distribution of words must be permitted no matter what the resulting costs to comprehension or consideration—even where the result is that other people’s words stand zero chance of being understood or considered at all. And that, I argued, is implausible—at least, if free speech is to be the value it is presently taken to be. If the dissemination of words of racial hatred functioned to preclude comprehension or consideration of words produced by its targets entirely—if, that is, it functioned like the Meaning Obliterator or the Input Buffer— then a commitment to free speech, however absolute, might seem to require that it be prevented, not permitted. Permitting people to voice their hatred for other people on the basis of their race may allow more words to be produced and distributed, but if the costs of this extra production and distribution is that other speech cannot be comprehended or considered at all (as in the extreme cases), then permitting those words to be produced (p.247) and distributed arguably precludes, rather than promotes, freedom of speech.

 

 

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Suppose it turned out that permitting the dissemination of words of racist hate were to have the effect of reducing production, comprehension, or consideration of the words of the targets of such speech considerably, but not to zero. In that case, it will be much less clear whether permitting the dissemination of words of racist hate diminishes free speech. It will be a matter of deciding what policy strikes the best balance between the various aspects of free speech. This may depend not simply on the degree to which production and distribution of words of racist hate interferes with the chances of comprehension and consideration, but also on the relative importance of the speech interests at stake. We may need to balance how important it is for people to be able to express their hatred for racial minorities against how important it is for racial minorities to have their views on a much wider range of subjects better heard, better understood, and better considered. Perhaps the best balance for free speech requires permitting racist hate speech, or perhaps it does not. Perhaps there are policies other than regulating racist hate speech that would be preferable. These are difficult questions. But it would be a mistake simply to assume that considerations of free speech tell in favour of permitting racist hate speech. That assumption could well turn out to be false.

References

Bibliography references:

Unsigned editorial, American Medicine (April, 1907): 197.

Bean, R. B. 1906. ‘Some Racial Peculiarities of the Negro Brain’, Am J. Anat 5: 353–432, 380.

Braddon-Mitchell, David and Caroline West 2004. ‘What is Free Speech?’ Journal of Political Philosophy 12, no. 4: 437–60.

Brink, David 2001. ‘Millian Principles, Freedom of Expression, and Hate Speech’, Legal Theory 7: 119–57.

Delgado, Richard 1993. ‘Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling’, in Mari J. Matsuda et al. (eds.), Words That Wound: Critical Race Theory, Assaultive Speech and the First Amendment. Boulder, Colorado: Westview: 89–110, esp. pp. 94–5.

 

 

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Diamond, Jared 1998. Guns, Germs and Steel. London: Vintage, p. 19.

Dworkin, Ronald 1993. ‘Women and Pornography’, The New York Review of Books, 21 October 1993, p. 38.

Green, Leslie 1998. ‘Pornographizing, Subordination and Silencing’, in Robert C. Post (ed.), Censorship and Silencing: Practices of Cultural Regulation. L.A., CA: The Getty Research Institute, pp. 285–312.

(p.248) Greenburg, Jeff and Tom Pyszczynski 1985. ‘The Effect of an Overheard Slur on Evaluation of Target: How to Spread a Social Disease’, J. Experimental Soc. Psychology 21: 61–72.

Greenberg, Jeff, S. L. Kirkland, and Tom Pyszczynski 1988. ‘Some Theoretical Notions and Preliminary Research Concerning Derogatory Ethnic Labels’, in G. Smitherman- Donaldson and T. van Dijk (eds.), Discourse and Discrimination. Detroit, MI: Wayne State University Press.

Hornsby, Jennifer 1995. ‘Speech Acts and Pornography’, in Susan Dwyer (ed.), The Problem of Pornography. Belmont, CA: Wadsworth: 220–32.

Jacobson, Daniel 1995. ‘Freedom of Speech Acts? A Response to Langton’, Philosophy & Public Affairs 24, no. 1: 64–79.

Jacobson, Daniel 2007. ‘Freedom of Speech: Why Freedom of Speech Includes Hate Speech’, in Jesper Ryberg, Thomas S. Petersen, and Clark Wolf (eds.), New Waves in Applied Ethics. Basingstoke, Hampshire: Palgrave Macmillan.

Langton, Rae 1993. ‘Speech Acts and Unspeakable Acts’, Philosophy & Public Affairs 22, no. 4.

Langton, Rae 1998. ‘Subordination, Silence and Pornography’s Authority’, in Robert C. Post (ed.), Censorship and Silencing: Practices of Cultural Regulation. L.A., CA: The Getty Research Institute, pp. 261–84, see esp. 276–7.

Langton, Rae and Jennifer Hornsby 1998. ‘Free Speech and Illocution’, Legal Theory 4: 21–37, 25.

 

 

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Lawrence, Charles R. 1993. ‘If He Hollers Let Him Go: Regulating Racist Speech on Campus’, in Mari J. Matsuda et al. (eds.), Words That Wound: Critical Race Theory, Assaultive Speech and the First Amendment. Boulder, CO: Westview: 53– 88, 79.

MacKinnon, Catharine 1987. Feminism Unmodified. Cambridge, MA: Harvard University Press, p. 156.

Maitra, Ishani 2004. ‘Silence and Responsibility’, Philosophical Perspectives 18: 189–208.

Mill, 1975. On Liberty, reprinted in Three Essays. Oxford: Oxford University Press; originally published 1859, p. 65.

Nielsen, Laura Beth, this volume. ‘Power in Public: Reactions, Responses, and Resistance to Offensive Public Speech’.

Schauer, Frederick 1982. Free Speech: A Philosophical Inquiry. Cambridge: Cambridge University Press.

Sumner, L. W. 2004. The Hateful and the Obscene: Studies in the Limits of Free Expression. Toronto: University of Toronto Press, pp. 14–15.

Taylor, Jerome and Malick Kouyate 2003. ‘Achievement Gap Between Black and White Students: Theoretical Analysis with Recommendations For Remedy’, in G. Bernal (ed.), Handbook of Racial & Ethnic Minority Psychology. London: Sage Publications, pp. 327–56.

West, Caroline 2003. ‘The Free Speech Argument Against Pornography’, Canadian Journal of Philosophy 33, no. 3: 391– 422.

Notes:

(1) Thanks to David Braddon‐Mitchell, Robert Bezimienny, Ishani Maitra, and Mary Kate McGowan for helpful comments and suggestions.

(2) Leslie Green attributes this conception to some feminist theorists: in particular, Rae Langton and Jennifer Hornsby. (Green 1998: 285–312. The quotation appears at p. 303.) Langton rejects this interpretation of her view in her

 

 

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contribution to the same volume (Langton 1998: 261–84, see esp. 276–7).

(3) For instance, it is no part of my argument here that members of minority racial groups targeted by racist hate speech could have a First Amendment claim against racist hate speakers. This claim seems problematic, not least because the First Amendment has generally been understood by the courts to protect the speech of individuals only against state, not private, action; and racist hate speakers are generally not state actors. Rather, I claim that considerations of free speech might not justify permitting racist hate speech as speech, if racist hate speech were to silence its targets in the ways that I discuss in part 2.

(4) Given the debates in First Amendment jurisprudence about exactly what ‘speech’ is and isn’t protected by the First Amendment, it might be more accurate to say that the First Amendment offers not one view of free speech, but rather one family of views.

(5) MacKinnon 1987: 156. MacKinnon favours regulation of pornography by civil, rather than criminal, means.

(6) Dworkin, ‘Women and Pornography’, p. 38. Dworkin is here discussing the coherence of a silencing argument against pornography, but his remarks would apply mutatis mutandis to a silencing argument against racist hate speech.

(7) loc. cit. For a similar line of objection see Green 1995: 64– 79.

(8) West 2003: 391–422.

(9) For an excellent discussion and overview of the various justifications for free speech see Schauer 1982.

(10) Langton 1993.

(11) Braddon-Mitchell and West 2004: 437–60.

 

 

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(12) This is narrower than Langton and Hornsby’s ‘minimal receptiveness’, which requires ‘that a hearer has the capacity to grasp what communicative act a speaker might be intending to perform’ (‘Free Speech and Illocution’, 1998: 21–37, 25). Notice that, as stated, there is no requirement that the interference be that of a government agent. Of course, a comprehension requirement could be restricted in that way; but it does not strike me as very plausible to include this restriction as part of an account of what it takes in principle for speech to be free. The Meaning Obliterator would prevent communication regardless of whether it was implanted by a private agent or by a government one; and it is not clear why government intervention with speech is distinctively intrinsically bad. If the issue of who instigates interference with comprehension matters, it matters only indirectly and contingently, insofar as agents of the government happen generally to be better able or more likely than private actors to interfere with speech in this way in virtue of having the special powers of the state at their disposal. I take the same point to apply to interference with comprehension and consideration of words.

(13) This and other kinds of cases are discussed in more detail in Braddon-Mitchell and West 2004.

(14) This may be a case in which the commonsense meaning of ‘free speech’ may come apart from the quasi-technical sense. A society in which a dictator implants Input Buffers is perhaps a society in which there is ‘free speech’ in the ordinary sense, but not, I suggest, in the technical sense relevant to moral and political discussions of free speech.

(15) Mill 1975: 65.

(16) It would be a synoptic task well beyond the scope of this paper to attempt to explore what each of the justifications that have been offered for free speech imply about the need for audience attention and consideration. But it is worth noting that a Millian justification does not seem to be alone in supposing the value of speech to lie partly in its capacity to influence the deliberations and decisions of others. Dworkin’s own view, for instance—which holds that equal concern and respect demands that every citizen be permitted a chance to influence the moral and political environment around them through speech, no matter how misguided or disagreeable

 

 

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what they say may seem to others—also seems to require that there are no significant barriers to consideration. For speech that is systematically and dogmatically ignored, or that would not enter anyone’s deliberations even if it were listened to, can influence no one—except perhaps the speaker.

(17) See Sumner 2004: 14–15.

(18) See, for instance, that offered by Brink 2001: 119–57.

(19) Lawrence 1993: 53–88, 79.

(20) These and other examples are discussed in Lawrence 1993.

(21) This deserves fuller consideration than I have space to give it here.

(22) Lawrence 1993: 68.

(23) Commenting on these effects, David Brink notes that ‘Insofar as hate speech, like fighting words, expresses visceral attitudes and elicits inarticulate reactions, it doesn’t engage deliberative values central to Millian and constitutional principles that normally protect speech’, 140. Racist hate speech, he argues, may for this reason constitute a ‘well- motivated exception to the usual prohibition on content- specific censorship’, 141, n. 47.

(24) For a sustained and empirically grounded criticism of the ‘more speech’ response, see Nielsen, this volume.

(25) For further discussion of this point see Delgado 1993: 89– 110, esp. pp. 94–5.

(26) Summer (2004), p. 160.

(27) In research summarized by Taylor and Obiechina, about one in three Blacks endorse racist stereotypes about Blacks as mentally defective (intellectually, morally, emotionally) and physically gifted (athletically, sexually). One hypothesis is that these expectations are linked via the latent belief that ‘Blacks are animals’, which is used to ‘explain’ why Blacks are mentally defective and physically gifted (Taylor and Kouyate: 327–56). Since much racist hate speech quite explicitly labels

 

 

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or likens its targets to animals, it would not be surprising if it contributed to producing or reinforcing that latent belief.

(28) See Langton, ‘Speech Acts and Unspeakable Acts’ and Jennifer Hornsby, ‘Speech Acts and Pornography’, in Dwyer 1995: 220–32.

(29) For a nice discussion of how the production and distribution of pornography could be responsible for silencing, see Maitra 2004: 189–208.

(30) Jared Diamond claims that the belief that non-whites are innately biologically inferior to whites persists among ‘many (perhaps most) Westerners’, although few feel comfortable acknowledging it. In the absence of an obviously better explanation for differences in technological and other achievements between white and non-white societies, Diamond says, ‘most people will continue to suspect that the racist biological explanation is correct after all’ (1998: 19). Diamond cites laying this suspicion to rest as the most important reason for seeking to develop a better, alternative explanation.

(31) Bean 1906: 353–432, 380. Readers may recall Himmler’s chilling speech to the SS group leaders at Potsdam which made similar claims about Jews. Although extreme, these are by no means historically isolated examples.

(32) American Medicine, April 1907, p. 36.

(33) See Greenburg and Pyszczynski 1985 , and Greenberg, Kirkland, and Pyszczynski 1988.

(34) Lawrence, pp. 78–9.

(35) Esteem may function in complex ways. Some speakers may be members of a social group generally held in comparatively low regard, yet be judged to have special competence in a particular, limited domain. For instance, it could be that women’s speech in general is paid less attention than the like speech of men, except in domains where women are assumed to have a special expertise—such as on the merits of washing powder, where women in general may be judged as more credible than men (except perhaps when compared with a man in a white laboratory coat). Not so, however, when a woman expresses an unorthodox opinion about political or

 

 

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economic policy. In these domains, critical to effecting social and political change, women as a group may be judged less competent than men and their views correspondingly judged less likely to be correct.

(36) MacKinnon 1987.

(37) See, for instance, Jacobson 2007.

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