Protecting the thought that we hate but unable to express the thought
An exercise in the paralogisms of tolerance
Richard Stengel has a column for the BezosPost where he bemoans the lack of hate speech laws in the United States. This is a reply.
First, Stengel opens with his liberal democratic society bona fides: sure, he agrees with Justice Holmes (NOT a friend of free expression, at least if you were a draft-dodging communist) and Holmes’s statement in dissent that free speech must protect not only the thoughts with which we agree but the “thought that we hate.” See United States v. Schwimmer, 279 U.S. 644 (1929).
First, a brief history lesson on this case. Rosie Schwimmer, a Hungarian immigrant, was denied citizenship because she told her immigration officer that she would not take up arms in defense of the United States, citing her feminist and pacifist beliefs. The majority, which did not include Justice Holmes, upheld the denial, reasoning that even though Scwhimmer was a middle-aged woman and unlikely to receive a draft notice, it was the principle of willingness that mattered, particularly since pacifists could influence general opinion and therefore “be more detrimental than their mere refusal to bear arms.”
Holmes, joined by Justice Brandeis, argued that free speech and free thought must include the freedom to think the things that polite society despises.
Of course, this is somewhat undercut by Holmes’s majority opinion a decade earlier which upheld the conviction of Eugene Debs because the “intent and general tendency” of Debs being a socialist might make people not sign up for the draft. But hey, potato, po-fuck-the-commies, right?
The digression into history has a point here: even the vaunted Holmes was never REALLY a fan of protecting the speech that he hated. That takes an altogether rarer species of character, that someone might be willing to defend speech they find detestable in every sort of way just to defend the principle that the government ought not to have the power to lock you in a cage for expressing the thought.
Stengel then gives an (altogether fictional, but whatever) example of an anonymous but “sophisticated” Arab diplomat who could not understand why the First Amendment would protection Quran-burning, as the “sophisticated” diplomat suddenly did not understand 400-year-old liberal values.
At the outset, let’s marvel at the implicit racism and xenophobia in Stengel’s statement. No, this was not one those barbaric Disney caricature Muslims with a shamshir ready to chop off the hands of an errant thief, Stengel assures us. This was a suave and worldly sophisticated Arab prince, emerging in thoub and keffiyeh from his Mercedes AMG to ask pointed philosophical questions.
The status of this phantasm as rhetorical device aside, the proper rejoinder to said diplomat would be, “why shouldn’t we protect that?” and “what you do to punish this?”
For example, let’s say that I am sitting down with Abdul. He says to me, “Lane, why would you permit anyone to deface the Holy Quran?”
I might rejoin, “is your objection to the Quran specifically, or any holy book?”
Abdul, being “sophisticated,” would of course say that all blasphemy is equally bad in the eyes of the faithful. While he, for example, might not shed tears over the destruction of the Upanishads or the Avesta, he can certainly see how a Hindu or a Zoroastrian might. And so he would say any destruction of a sacred tome would be bad, and subject of course to punishment within the law.
I would nod sagely, and then point out someone like General Mike Flynn. “See that lunatic over there?” I would ask. “Up until a few years ago, he had the ear of the United States President. And here he is calling for the expulsion and extermination of all religions from the United States save Christianity. Do you want HIM determining who to punish and what punishment to mete out for an offense to Christianity?”
Abdul would of course pause here, thinking that if his son, sitting in class at an international high school in Washington, D.C., were to state that he believed it to be blasphemy to say that God had a child, could be jailed or punished for doing so. Abdul would have to concede to me, as he is my rhetorical device, that he would not want General Flynn determining blasphemy laws in the United States.
And so it must be generally; what I find erstwhile progressive and well-meaning folks like Stengel to forget is that across broad swathes of this country and in alternating election cycles, they do not pull the levers of power. It’s easy for some ensconced in the neoliberal bubbles of D.C. and New York to forget that outside of these little islands of “sophistication,” the rest of the US does not share their values, their ideals, their general level of education, or their literacy. And it is in those benighted pockets of humanity that “hate speech” would suddenly include shouting the phrase “Black Lives Matter!” but not “hang that *****!”
“Oh but Lane,” the Stengels of the world rejoin, “that’s setting policy based on the fact that bad people will misuse it. You can’t run a country that way; you have to empower people to do the right thing and then trust that the system will work out.”
Which, when I was 20, I might have agreed with. After all, logically there’s no reason to suppose power will be abused. But at 38, having done the job I’ve done for the past 13 years, I cannot be so sanguine. I watch abuses of power happen every day by “well-meaning” people who are just trying to preserve order, but doing so according to the dictates of their own conscience, a conscience often at odds with my own and even the general tenor of society.
As I sat in voir dire this week, the prosecutor asked us whether we could recommend a minimum punishment of 25 years to a maximum of life in prison for evading arrest. I answered I could not; several others agreed with me, but the majority of panel members stated that they could send someone to prison for the rest of their lives as long as the state proved that someone had two previous felony convictions. It’s a strange world we live in, populated with strange people, but there are those out there what would gladly and happily empower abuse of that power so long as it flattered their own desire for safety.
Stengel then provides a litany of examples of protected speech that had bad outcomes, but leaves it up to the reader to join him in his hidden premise that speech that leads to bad outcomes is speech we should avoid. This kind of default-consequentialism is a perennial problem with Anglophone philosophy, as we have been inundated by utilitarianism so thoroughly that we cannot conceive of any moral system apart from it. If A leads to bad things, our default reasoning goes, then we should prefer not-A to A.
But this is less than obvious upon serious philosophical reflection. We should not prefer good outcomes to bad outcomes if good outcomes require too great a sacrifice. For example, it could not be denied that there would overall be less crime if we executed people for even the smallest infraction. Of course, this would reduce our population significantly, as we would likely murder half our people or more, but it would lead to a “good outcome” of reducing crime, right? So why not do it?
Obviously because there is a second-order metaethical rule which says that reducing crime isn’t worth it if we have to kill a bunch of people. The same reason we scoff at environmentalists who suggest massive population reduction through targeted viruses or presume that Marvel movie villain Thanos is indeed a villain though he just wants to reduce population to more manageable levels. At some point, there is a cost to our values that is too great to sustain even a “good” outcome.
Likewise, just because free speech can be abused does not mean we must abandon this value in an effort to combat bad outcomes. One of the great policy mishaps we constantly blunder into is treating symptoms rather than diseases. When something bad happens, we screech “THERE OUGHTA BE A LAW!” and then make a law making that bad outcome illegal. This is rarely effective, but it makes us feel like we did something, and the next time something bad happens, we can then go get societal revenge and feel satisfied, rather like a toddler who has crapped his diaper because mother won’t let him have a cookie. He still has no cookie, and he has to sit in a shitty diaper, but at least mother has to clean it up.
That kind of mentality would be something you’d think we would have left behind about the time we started building cities, but it’s endured for five thousand years, and I see little reason we will abandon it now.
Stengel argues that the First Amendment was drafted in a “simpler era,” though he gives no analysis of how 1780 was simpler than 1980 or 2020. He traces the “marketplace of ideas” language to John Milton (though perhaps John Stuart Mill would be the more appropriate citation), although the Paradise Lost author did write a polemic against censorship and prior restraint. This is in tune with the general liberal tendency of the Anglophone world in the early modern era to promote individual liberty at the expense of tradition and societal cohesion, but I do not think that the nature or shape of the marketplace has much changed, just the amount of people participating in it.
Stengel believes that there is no good criterion for distinguish truth from nonsense, and in this regard, he is probably correct. Every language game we have invented for the legitimization of rational discourse has failed to deliver precisely because such narratives are self-undermining. You cannot, sadly, use rationality to prove why you should be rational in any non-circular way, which of course violates one of the prime tenets of rationality.
This sort of postmodern approach to truth-telling admits on the one hand that rationalism as a language game is never going to be as all-encompassing and provide us with as sure an epistemic footing as Mill and his cohorts hoped. But Stengel et al. stop only at the pessimistic realization that telling the truth is not remotely akin to proving the truth and fall back on the “well if you don’t believe me then I’ll use the force of the State against you” canard.
Which, it’s tempting. There are many times when I, conversing with an interlocutor, think that my job of trying to persuade them would be much improved if I could strike them repeatedly until their willfulness ceases. But this is a juvenile state of mind, the sort of rough-knuckled chicanery on which I’d fall as an adolescent dealing with a particularly stupid colleague who couldn’t see my brilliance. It’s ultimately self-undermining; that if truth cannot win on its own, we must resort to force and punishment to ensure its victory.
What Stengel et al. fail to realize about this redoubt is that “truth” then becomes exactly what the mightiest say it is, and sadly for the liberal intelligentsia, they have never been quite as mighty as the cocksure and arrogant. If truth is meted out by state backing, then truth will serve the State’s wishes and not our own.
Stengel then begins his great legal argument: if it is currently the law that we can prohibit speech which is calculated to and reasonably likely to incite imminent criminality, then we should be able to restrict speech which “creates a climate where [unlawful acts] are more likely?”
While this has a certain intuitive appeal, it elides over the causation element. How does one prove that expressing a given idea “creates” such a climate? How much more likely must a given bad outcome be?
Stengel offers no answers to this, he merely wants to open the floor for debate on such a question. Which, granted, that is the purpose of such a debate. But Stengel has already conceded that robust debate is insufficient to get us near enough to truth to matter. This is inconsequential, he argues, in face of the great damage that hate speech can do: it diminishes tolerance and enables discrimination, thereby undermining the great liberal project embodied by the First Amendment. States, he argues, should be able to penalize speech that “deliberately insults people based on religion, race, ethnicity, and sexual orientation.”
Which sounds good if you’ve lived your adult life in northern Virginia or New York city where everyone around you basically agrees with the proposition that “insult based on religion, race, ethnicity, or sexual orientation” means one thing. But what would you say to a DFW-area soccer mom who thinks it is hate speech for a student of color to tell her precious little darling child that they’re privileged? How would you respond to the Alabama pastor who says the happy gay couple in town eating dinner by themselves at the restaurant insults his religion by “shoving their sexuality down his throat?”
“Oh that’s preposterous!” Stengel says. “No one would ever call that hate speech.”
And yet.
That is precisely what would happen in the Texas and Alabama Legislatures. After all, it’s what happened in Utah where the legislature created a “anti-police” hate crime statute.
The power you give the government today to use against your enemies will tomorrow be used against you. That is the nature of power. The great overarching value of the liberalization of the modern period was not the championing of individual rights or the freedom from stultifying tradition; it was the notion that the sovereign’s power might be limited from the outset, and in that shadow cast by the limits on his power, liberty could flourish. You can protect free speech in only one way: by telling the sovereign “hands off.”
After all, we cannot police a man’s innermost thoughts. They remain his alone. But to say that you would protect his thought but not the right to express it is backward. Absent the expression of a hated thought falling within a narrow range of categories we as a society have established are so contrary to society that we can forbid them, such as child pornography or incitement to criminality, any greater erosion of free speech narrows that scope of denied authority and encroaches upon the fragile blooms of individual liberty.
And if you would grant that power to try to stave off outcomes of speech you don’t like that you see as bad, then realize that it will also be used against speech you do like and outcomes you see as good.