Q: do prohibitions of hate speech harm public discourse?

Paul Gottfried

A frequently heard complaint among civil libertarians and old-fashioned scholars concerns the rise of speech codes on American campuses. As reported by Glenn Ricketts, research director of the National Association of Scholars, more than 300 colleges and universities have introduced speech rules, usually disguised as behavior codes to ban "offensive" ideas and language. This practice has not been turned equally against all users of insensitive speech. It does not keep feminists from insulting males or African-Americans from venting hatred on whites.

But speech-behavior codes have had an observable effect. At Yale University and the University of Michigan, faculty of my acquaintance take pains to express themselves in politically correct language. The failure to do so can be costly. It has led to the summary suspension of student-newspaper editors, such as Greg Pavlik at the University of Pennsylvania in 1992, and to removal of learned works from college bookstores, such as The Bell Curve, by Charles Murray and Richard Herrnstein. Politically incorrect utterances have driven some professors from their courses. In 1988, William Irons of Northwestern University was forced by the administration to abandon his upper-level course on evolution and sexuality after he had spoken about innate gender differences in a lecture and campus feminists protested.

Two years ago, the Department of Education's Office of Civil Rights imposed its own behavioral guidelines on American universities and colleges by banning a "hostile environment" for racial minorities. This year new guidelines are expected to mandate a verbally comfortable learning environment for women. As with earlier guidelines, these directives will require educational institutions to take a "constructive notice" of all speech uttered on campus. The institutions therefore will be liable for all infractions against the guidelines, even those committed by visitors.

These administrative actions are not unprecedented in the Western world. In Europe and the British Commonwealth, political correctness has been pursued in a way that may foreshadow the way the United States will be pushed by sensitizing lobbies. Since the 1970s, almost all Western countries have introduced and applied laws against hate speech. These laws prescribe penalties that include fines and even imprisonment for those found guilty of defaming or disparaging ethnic, racial or (in some cases) religious groups. Some of these laws have been attached to more general antidiscrimination codes, as is the case in England, the Canadian province of Ontario and Australia; other laws--such as those in France, Holland, Austria, Germany, Switzerland, Poland, Sweden, Italy and Belgium--are intended specifically to bar Holocaust revisionism. French legislators passed codes against group defamation in 1972 and 1990, expanding a 19th-century law prohibiting journalistic libel in order to criminalize defamatory speech against ethnic and racial groups and the practitioners of unconventional "lifestyles."

Many of the codes have been passed and applied with the conspicuous support of Jewish organizations. Although some of their most outspoken critics, such as the late French historian Annie Kriegel, also have been Jewish, in most Western countries prominent Jewish spokesmen have pushed for the suppression of unwelcome speech and offensive scholarship. The French chief rabbinate, the French B'nai B'rith, and all leading French Jewish newspapers enthusiastically backed these antidefamation laws and openly allied themselves in the process with the Communist Party. (Indeed, the chief sponsor of the anti-Holocaust-revisionist law of July 1990 is a Communist deputy in the National Assembly.) In Ontario, as journalist Barbara Kulaska points out, over 40 percent of the lawsuits brought against individual authors or against the distribution of particular books under

No: Such rules make campuses and workplaces user-friendly to all.

At the University of Wisconsin, a fraternity sponsored an annual "Fiji Island" party, as part of which it erected a 15-foot plywood caricature of a black man with a bone through his nose. At Dartmouth College, four members of a conservative campus newspaper compared the university president, James O. Freedman, a Jew, with Adolf Hitler. At the University of California at Berkeley, fraternity members shouted obscenities and racial slurs at a group of black students; later, a campus disc jockey told black students who had requested that the station play rap music to "go back to Oakland." In Mississippi, a lesbian couple trying to establish a rural retreat was hounded by threatening messages and phone calls, and a dead chicken with an obscene note was attached to their mailbox.

These cases are not atypical. More than 300 American universities have experienced racial incidents serious enough to be reported by the media, and every year the FBI reports thousands of hate crimes and violence directed against Jews, gays and members of racial minorities. It is unlikely that the number of incidents is merely the result of increased sensitivity on the part of minority groups or better reporting, since it occurs at a time when other Western nations are reporting a wave of Holocaust revisionism and attacks on Jews and minorities.

More than 200 American universities have responded by enacting student-conduct codes penalizing face-to-face insults and epithets, while courts have developed sexual-harassment doctrine for women badgered and insulted in the workplace. Are these measures a good idea? Emphatically, yes: Racist and similar taunts convey little of value. They demean the victim while communicating to all who hear the message that equal personhood is of little value in American society. Campuses and workplaces wherein a climate of racial or sexual terror thrives are unattractive and unwelcoming for members of the victimized groups. Minority enrollment at many campuses drops in the months and years following well-publicized incidents of racial insult.

Rules against hate speech, homophobic remarks and misogyny serve both symbolic and institutional values -- increasing productivity in the workplace and protecting a learning environment on campus. It has been argued that such prohibitions operate in derogation of the First Amendment's guarantee of freedom of speech, but that amendment already is subject to dozens of exceptions -- libel, defamation, words of conspiracy or threat, disrespectful words uttered to a judge or police officer, irrelevant or untrue words spoken in a judicial proceeding, copyright, plagiarism, official secrets, misleading advertising and many more. The social interest in deterring vicious racial or sexual vituperation certainly seems at least as great as that underlying these other forms of speech deemed unworthy of First Amendment protection.

Some argue that speech codes are not as good a remedy to racist speech as talking back to the aggressor. According to this view, talking back will teach minorities not to rely on whites for protection while educating the utterer of a racially hurtful remark so that he or she will refrain from repeating the offense. But talking back can be futile or dangerous, especially when racist remarks are hurled, as they often are, in many-on-one situations or in cowardly fashion -- a leaflet slipped under a black student's dormitory door. Talking back cannot be the sole remedy for a victim of racist hate speech.

A third argument for tolerance of offensive utterances is that they serve as a kind of pressure valve, allowing tension to release itself before reaching a dangerous level. Forcing racists (homophobes, etc.) to bottle up their emotions means that they are more likely to do or say something even more harmful later. Anti-hate-speech rules, then, would increase, not reduce, minorities' jeopardy.

This argument is simplistic. Hate speech may well make the speaker feel better, but it does not make the victim safer. Social science teaches that permitting a person to do or say something hateful to another increases, not reduces, the chance that he or she will do so again. Moreover, others may feel that they can follow suit. Human behavior is more complex than the laws of physics that describe pressure valves, tanks and other mechanical things. Instead, society uses symbols to construct a social world, one that contains categories and expectations for terms such as "black," "woman," "gang member" and "child." Once these categories are in place, they govern perception and a sense of how folks may act toward others. Allowing persons to stigmatize and revile others makes them more aggressive toward those others in the future. Once a speaker comes to think of the other as a deserved victim, his or her behavior may escalate to bullying and physical violence.

Stereotypical behavior often generalizes: Action teaches others that they may act as well. Pressure valves may be safer after letting off steam; human beings are not. The experience of Canada, England, Germany, Sweden, Italy and other European countries that have enacted laws against racial revilement shows that incidents against minorities do not increase, but decrease, in the wake of passage.

Other critics of speech codes argue that the First Amendment has been a great friend and ally of social reformers. The national president of the American Civil Liberties Union, for example, has argued that without free speech the Rev. Martin Luther King Jr. could not have moved America as he did -- and so also for the environmental movement, women's rights and gay liberation. This argument is paternalistic: If minorities understood their best interest, the argument goes, they would not limit speech. the provincial hate-speech code can be traced to three Jewish organizations: the Simon Wiesenthal Centre, the Canadian Jewish Congress and the Canadian B'nai B'rith. Most of the charges brought by these groups fall into the category of inferential anti-Semitism: politically incorrect views to which anti-Semitic motives are arbitrarily ascribed.

In 1994, the Canadian Jewish Congress brought a suit against, and managed to stop the circulation of, a monthly that had been put out by the French Catholic Pilgrims of Saint Michael in Rougemont, Quebec. The Michael Journal urged readers to establish a distributist economy in accordance with Catholic social teachings. The Canadian Jewish Congress, in its lawsuits and successful appeal to Public Works Minister David Dingwall insisted that the journal's real intent was to keep Canadian Catholics from doing business with Jews. Though the editor emphatically contested this undemonstrated charge and proved that his own publication did business with Jews and other non-Catholics, the Canadian government nonetheless caved in: Dingwall promised not to allow mail delivery of any more issues of a publication full of what he called "vile and disgusting expressions of hate." Having seen the journal, it is impossible to figure out to what this charge refers, except to a pre-capitalist mind-set that the Canadian Jewish Congress should have a right to reject but not to keep others from expressing.

What is profoundly vile about the hate-speech codes is that they ban the free discussion of ideas and open the door to statist mischief, recalling the heyday of Soviet tyranny. As Kriegel, who has written the definitive study of French Communism, pointed out in Le Figaro, it does not befit Jews as one-time victims of totalitarians to be leading a witch-hunt in the company of French Stalinists. The same comment can be applied to other minorities who imagine that their group dignity can be best protected by jailing those who commit so-called "criminal offenses of opinion."

Kriegel noted with alarm that "associations of vigilance" have been formed at French universities, including both students and faculty. These groups undertake to police opinion and to bring to the attention of the state prosecutor's office the public circulation of insensitive statements. Martine Valdes-Boulouque, a French judge who is vice president of the European commission against racism and intolerance attached to the Council of Europe, warned in Le Monde that the laws against racism would be lifted unless new actions were taken. Valdes-Boulouque called for "tight police surveillance of bookstores in Paris which live only for the diffusion of an unwholesome food, racism and for its variant, Holocaust revisionism."

Particularly troublesome in trying to understand the popularity of therapeutic censorship in Europe is the vagueness of the crimes condemned. As in the United States, all forms of insensitivity are imagined to be the same--or at least to dovetail. In France, Holocaust revisionists routinely are lumped together with anti-immigrationists as racist enemies of humanity. This linkage crops up in the pronouncements of the French League Against Racism and Anti-Semitism and is characteristic of polemics against the "extreme right" in Le Monde.

Eric Delcroix, a legal scholar who frequently has represented those accused of hate speech, argues that the prohibitions against Holocaust revisionism in France and elsewhere in Europe often are legal abominations. They seek to ban the questioning of a received historical account, and for want of another legal authority on which to found this account, they enshrine as infallible the judgments about crimes against humanity rendered by the Nuremberg Tribunal in 1947. But the judgments of that tribunal were sometimes flawed as in its condemnation of Germans rather than Russians for the slaughter of 10,000 Polish officers in the Katyn Woods in 1941; nor did the tribunal provide definitive answers on the number of Jews killed or on the manner in which the Nazis killed their victims. It is even doubtful, explains Delcroix, whether the Nuremberg Tribunal's judgments can have the standing of a duly registered French law. Unlike such a law, the hundreds of pages of text containing the tribunal's decisions did not become part of the Official Journal of the French Republic and therefore do not have the status of binding legislation.

These legal arguments aside. it seems foolish to try to settle historical discussions by threatening one side with imprisonment. Such action does not seem likely to help the course of scholarship and it may leave the modern state with terrifying power that there is every reason to believe it will seize. Europeans already have been jailed and financially ruined as real or imagined Holocaust-deniers or revisionists, and intellectuals have shown a truly ugly side in instigating political authorities against those suspected of holding revisionist opinions.

Whereas in Europe and the British Commonwealth hate-speech laws have been enacted for minorities by accountable legislative bodies, what is more likely in the United States is speech policy by administrative fiat. This is the way America's "captive public," in the phrase of Benjamin Ginsberg, becomes scientifically socialized. The political imposition of behavioral codes requiring anxiously weighed language, for the benefit of some and for the terror of others, has begun nondemocratically through a freewheeling but insulated office of the Department of Education. This way the sensitizers can muzzle whomever they choose without facing electoral consequences. And, as long as they engage in the fiction of controlling social behavior, their friends in government and the universities do not have to concern themselves with the actionable charge of suppressing speech.

Hate-speech laws represent the attempt of the modern state to destroy dissent, and the reckless support for these efforts coming from various spokesmen for "victims" makes the battle for liberty even harder to wage. Take notice that the crusade against intellectual tolerance being packaged as a war against hate is not the work of isolated communities upholding tradition. It is the project of a modern, centralized state seeking to reconstruct human behavior and suppress unwelcome thought. One should think twice before picking this side as the side of reason and kindness.

But the relationship of the First Amendment to social advance is not nearly so straightforward as some thank. True, in the 1960s, King and others did use speech to kindle conscience. As often as not, however, the First Amendment, as then understood and interpreted, did not protect them. They marched, were arrested and convicted; sat-in, were arrested and convicted; rallied and sang, were arrested and convicted. Their speech was deemed too forceful, too disruptive. To be sure, their convictions sometimes would be reversed years later on appeal, at the cost of thousands of dollars and hundreds of hours of gallant lawyering. Speech may have been a useful tool for racial reformers; the free-speech clause was not.

Would hate-speech laws inevitably lead to reverse enforcement? Would authorities overlook the more serious offenses of the sort mentioned in the first paragraph of this essay, while cracking down with a vengeance on the black motorist who utters something mildly disrespectful to the cop who stops him for a routine offense? This concern is plausible, because some authorities do overcharge blacks and other minorities with various offenses, including loitering. But the American experience with hate-speech rules shows that this has not been the usual pattern. Nor has it been elsewhere. A host of Western democracies have instituted laws against hate speech and crime. Some, such as Sweden, Great Britain and Canada, have traditions of respect for free speech and inquiry rivaling ours. In none has there been a noticeable erosion of the spirit of free inquiry nor a wave of prosecutions against blacks and immigrants.

If reverse enforcement occasionally happens, it is not necessarily a bad thing. If, in fact, a black or Mexican has terrorized or harassed a fellow student who is white, gay, or Asian, universities should bring charges: Minorities need to learn to speak respectfully, too. And if the fear is that college deans and administrators are so racist that they will invent or magnify charges against minority students in order to punish or hound them off campus, this is entirely implausible. Figures from US. News and World Report show that college administrators and faculty harbor less antiblack animus than the average American, even than the average college student. Indeed, it is the very concern of college administrators about dwindling minority enrollments and a worsening campus climate for minorities that underlies enactment of most hate-speech rules.

It also has been claimed that hate speech should not be driven underground but allowed to remain out in the open, since the racist one does not know is more dangerous than the one whom one does know. This argument ignores a third alternative -- the racist who is cured, or at least deterred by official rules and the fear of sanction from exhibiting the behavior he or she once did. Since most conservatives (indeed most people) believe that laws and penalties change conduct, they ought to concede that institutional guidelines against hate speech and assault would discourage those behaviors.

A final objection is that prohibitions against verbal abuse and assault encourage minorities to see themselves as victims. Instead of running to campus authorities every time something wounds their feelings, persons of color ought to learn either to confront or ignore the offensive behavior. A system of hate-speech rules proclaims that minorities are weak and in need of protection, that their lot in life is to be victimized rather than to take charge of their own destinies. Will hate-speech rules have these effects? No, because other alternatives, such as talking back, will remain. No gay or minority student is required to file charges under the rules when targeted by abuse. The rules merely provide one more avenue of recourse for those who wish to take advantage of them. Filing a complaint might, indeed, be seen as one way of taking charge of one's destiny: One is active instead of passively "lumping it" when invective strikes. It is worth noticing that we do not raise the victimization issue with other offenses we suffer, such as having a car stolen or a house burglarized, or tell the victim to "rise above it." Could it be because we secretly believe that the black targeted in this fashion has not suffered a real harm? If so, this is quite different from saying that filing a complaint increases victimization. Besides, it is quite untrue: Racial invective harms; filing a civil complaint does not.

None of the arguments against hate-speech rules, then, holds water. The rules are straightforward, wholly laudable ways of protecting values society holds dear. The right of the bigot to spew racial venom, like the right to punch someone in the nose, must yield in the face of other interests. Canada, Sweden, France, Italy and many other advanced societies have come to the same conclusion. Hate-speech rules are wholly consistent with the spirit of free inquiry. Indeed' by demoralizing the victim and excluding him or her from the human community, hate speech reduces participation and dialogue. Far from diminishing the values of the First Amendment, hate-speech rules may be necessary for their full flowering and effectuation.

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