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Tolerating Intolerance: Why Hate Speech Is Free Speech This is of course a Tinseltown vision. What if the speaker were advocating that the state return all black people to pre-Civil War slavery? What if he were calling for a second Holocaust? Such notions represent so-called hate speech, which critics seek to criminalize. They argue that speech is a form of social power, which the historically dominant group, namely, male WASPs, employs to stigmatize and institutionally harass the Other. In this way, mere epithets can inflict acute anguish, such that certain words become more than words. Nigger, for instance, according to Merriam-Webster’s Collegiate Dictionary, “perhaps the most offensive and inflammatory racial slur in English,” is abusive, intimidating and persecutory. Referring to anti-Semitism in Nazi Germany, Daniel Goldhagen argues that we should view “verbal violence . . . as an assault in its own right, having been intended to produce profound damage—emotional, psychological, and social—to the dignity and honor of the Jews. The wounds that people suffer by . . . listen[ing] . . . (particularly, in front of their children) to such vituperation . . . can be as bad as . . . a . . . beating.”[1] Now, that words are never just words, critics are right. With words, an orator can touch your very soul, inciting a people to insurrection or moving a mob to vigilantism. Yet words are always just words, since the breaking of sound waves across one’s ears is qualitatively different from the breaking of a baseball bat across one’s back.[2] Simply put—and it is clear-cut, despite pretentious complications by so-called critical race theorists—sticks and stones may break my bones, but words can never hurt me. Specifically, where words are nonphysical, deeds are physical. Deeds entail consequences over which one has no control; the harm is not a matter of one’s volition. By contrast, one can control one’s reaction to words; to what extent an epithet harms one ultimately depends on how one evaluates it.[3] Sure, our emotions often get the better of us, but in the end, we always retain the capacity to check, and to exaggerate, their force. After all, taking responsibility for one’s feelings—thinking before speaking or acting—distinguishes adults from adolescents. Banning hate speech, then, as the legal scholar Zechariah Chafee puts it, “makes a man a criminal simply because his neighbors have no self-control.”[4] Moreover, with torture chambers in Iraq, genocide in the Balkans, and suicide bombing in Israel, equating words with violence is odious. Yet hurling forth opprobrious language silences people, critics assert. It deprives them of the equal opportunity to express themselves, and thereby victimizes them. But our laws should not promote the message, “Peter cast aspersions on Paul. Ergo, Paul is a victim.” That lesson says that one should lend considerable credence to the opinions of bigots. To the contrary, one should recognize that the opinions of bigots are the opinions of bigots. Hate speech victimizes only if one grants the hater that dispensation. Granted, this fortitude is idealistic; so is it naïve? Does it trivialize the weight words carry? I am hard-put to concede, because the law should be neither a psychiatrist nor a babysitter. I deny neither the sincerity nor the seriousness of one’s pain, but I believe it is mostly psychological, and largely psychosomatic. As Ayn Rand showed in her novel The Fountainhead, although protagonist Howard Roark endures adversity that would shrivel most men, “It goes only down to a certain point and then it stops. As long as there is that untouched point, it’s not really pain.” Am I intellectualizing or universalizing a profoundly personal response? Alan Keyes, former Assistant Secretary of State, does not think so. The push to ban hate speech, he discerns, derives from “patronizing and paternalistic assumptions. Telling blacks that whites have the . . . character to shrug off epithets, and they do not. . . . makes perhaps the most insulting, most invidious, most racist statement of all.”[5] Similarly, despite resurgent anti-Semitism—including conspiracy theories, burning cemeteries across Europe, and the equation of Israelis with Nazis—Jews have not hidden behind a government gun. Rather, alongside those who chant “Six million more,” they have formed numerous organizations to combat media bias and produced several major movies about the Holocaust. Instead of sheltering themselves from such animosity, these victims have challenged it head-on. Such self-reliance is the American way. Still, critics contend that hate speech exceeds the pale of reasonable discourse, and so banning it fails to deprive judicious people of anything important. As our fellow Western countries have recognized, people can communicate con brio sans calumny. Human history is full enough of hate; let us now cease tolerating intolerance. Of course, that others ban hate speech is morally irrelevant; that somebody else does or does not do X makes X neither right nor wrong. Further, working toward “the tolerant society,” as the free speech scholar Lee Bolinger calls it, by banning intolerance, institutes a do-as-I-say-not-as-I-do, free-speech-for-me-but-not-for-thee standard; our means corrupt our end. “Verbal purity is not social change,” one commentator discerns.[6] Instead, we should practice extreme tolerance in the face of massive intolerance. We should roll up our sleeves in the proverbial marketplace of ideas and engage our enemies. We need not give them microphones, but we need to give ourselves a society where, as a 1975 Yale University report describes it, people enjoy the unfettered right to think the unthinkable, mention the unmentionable, challenge the unchallengeable.[7] That means, in the words of Justice Oliver Wendell Holmes, “freedom for the thought we hate.”[8] Indeed, that progress thrives in a free atmosphere of critical dialogue is one of the essential principles of Western success since the days of Socrates.[9] As Thomas Paine noted, “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it”;[10] the bruises we bear are the price we pay. This, too, is the view of the U.S. Supreme Court, which has ruled that if some speech offends one, one bears the burden to avert one’s attention.[11] And yet, as a recent incident at Hamilton College illustrates, wherein one student, face-to-face with another, called him a “fucking nigger,” the black students on campus, rather than recoil, reacted with a vengeance. Just as the American Civil Liberties Union (A.C.L.U.) predicted ten years earlier: “[W]hen hate is out in the open, people can see the problem. Then they can organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance.”[12] And sure enough, with a newly formed committee, a protest, a petition, discussions, letters to the editor, articles in the school newspaper, this is exactly what ensued. As if stung, democracy sprung into action and bottom-up, self-censorship obviated top-down, state censorship. Furthermore, censorship the state enforces is a zero-sum game, which disfranchises one group to shelter another; since free speech rights are indivisible, the same ban one group uses to silence bigots, bigots can use to silence them. Conversely, if we tolerate hate speech, we can use the First Amendment for a nobler good, to defend the speech of anti-war protesters, gay-rights activists, and others fighting real injustice. For example, in the 1949 case Terminiello v. Chicago, the A.C.L.U. successfully defended an ex-Catholic priest who had delivered a racist address. That precedent then became the basis for the A.C.L.U.’s successful defense of civil rights demonstrators in the 1960s and ‘70s.[13] They say that free speech is free only as long it is ineffective. Once it becomes effective, that is, once it effects change, we invent a special category to criminalize it. In 1973, regarding the five recent Supreme Court “obscenity” cases, Ayn Rand observed this theory in practice. The transition to tyranny begins with the infringement “of a given right’s least attractive practitioners.” But the vileness of their offense makes a perfect “test of one’s loyalty to a principle.”[14] [1] Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans the Holocaust (Knopf, 1996), 124. [2] Stephen Hicks, “Free Speech and Postmodernism,” Navigator, October 2002. [3] Stephen Hicks, “Free Speech and Postmodernism,” Navigator, October 2002. [4] As quoted in Nadine Strossen, “Regulating Racist Speech on Campus: A Modest Proposal,” in Gates, et al. (eds.), Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties (New York: New York University, 1995), p. 198. [5] Alan L. Keyes, “Freedom through Moral Education,” Harvard Journal of Law and Public Policy, Winter 1991. [6] As quoted in “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994. [7] Report of the Committee on Freedom of Expression at Yale, January 1975. [8] Oliver Wendell Holmes, United States v. Schwimmer (1929). [9] Chris Matthew Sciabarra, “Interviews and Notices,” Dialectics and Liberty. [10] Thomas Paine, “The Crisis,” No. 4, September 11, 1777, in Moncure D. Conway (ed.), The Writings of Thomas Paine, Vol. 1 (1894), p. 229. [11] See for instance Erznoznik v. Jacksonville (1975) and Cohen v. California (1971). [12] “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994. [13] “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994. [14] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.
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