On Jeremy Waldron and Martha C. Nussbaum

Whenever there is a discussion about free speech, two things are almost certain to be said. The first is (roughly) ‘I disagree with what you say but will defend to the death your right to say it.’ And the second is (equally roughly) ‘Freedom of speech should not extend to falsely shouting “Fire!” in a crowded theatre.’

While the first sentiment is usually attributed to Voltaire, the second is rarely attributed to anyone. This is unfortunate, because the context is revealing. The source is Oliver Wendell Holmes, Associate Justice of the US Supreme Court, and the case on which he happened to be ruling had nothing to do with shouting ‘Fire!’ but with a Yiddish-speaking socialist who’d distributed an anti-conscription leaflet to military draftees in 1919. The socialist was being sent to gaol, not for causing a stampede on Broadway, but for protesting against US involvement in the First World War.

In The Harm in Hate Speech, Jeremy Waldron describes Holmes’s ruling, and his analogy, as ‘preposterous’. Nevertheless, his principal target is the position ascribed (wrongly but plausibly) to Voltaire. Whether in making the case against that position he opens the door to Holmesian interpretations is the key question to emerge from a reading of his book.

Waldron’s aim is a modest one. Noting that every liberal democracy except the US has laws against hate speech, he seeks not to ‘condemn or reinterpret’ US constitutional provisions but to consider ‘whether American free-speech jurisprudence has really come to terms with the best that can be said for hate speech regulations’. No doubt this tentativeness stems in part from the fact that, in the US at least, anyone arguing for restrictions on hate speech tends to generate a lot of it. Waldron notes how a critical review of Anthony Lewis’s Freedom for the Thought That We Hate earned him a tsunami of abuse in his inbox, including the pithy animadversion ‘YOU ARE A TOTALITARIAN ASSHOLE!’

The aim of hate speech, Waldron argues, is to ‘compromise the dignity of those at whom it is targeted’. In his view, hate speech should be restricted for that reason, and not because it might incite violence. As he puts it:

[P]ublic order means more than just the absence of fighting: it includes the peaceful order of civil society and the dignitary order of ordinary people interacting with one another in ordinary ways … on the basis of arm’s-length respect.

Waldron looks in particular at the case of Beauharnais vs Illinois (1952), when the Supreme Court upheld the constitutionality of an Illinois statute prohibiting any material that portrayed ‘depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion’. This is clearly the kind of thing that Waldron would like to see adopted generally, though he notes that the chances of such a thing occurring are so small as to be invisible. Indeed, he acknowledges that if Beauharnais vs Illinois was replayed today the ruling would be different.

In working through the various objections – philosophical and legal – to hate speech restrictions, Waldron’s tone is affable, even clubbable. Indeed, one has the frequent sense of having walked in on an argument between friends, especially where other legal scholars are concerned. However, the book is marred, for me, by the suggestion of ‘bravado’ on the part of those liberals (‘First Amendment absolutists’) who take what we might call the Voltaire position. The implication is that those who argue for free speech are rarely the target of its nastier manifestations. That may be true, but the argument is reminiscent of the ‘armchair general’ accusation levelled at advocates of military intervention. In other words, it isn’t an argument at all.

Nor do I think Waldron quite succeeds where Justice Holmes so spectacularly fails. His argument that restrictions on hate speech would be aimed at preventing attacks on dignity and not at merely offensive viewpoints is subtle and even persuasive. But since those who are inclined to take offence tend not to recognise such fine distinctions, the potential for mission creep is ever present. Better, in my view, to have the argument and say with British author Kenan Malik (no armchair general, but the victim of plenty of racism in his time), ‘Free speech for everyone but bigots is no free speech at all.’

Waldron concludes The Harm in Hate Speech with a discussion of religious hatred in the seventeenth and eighteenth centuries, comparing the situation today with the one that obtained in the early Enlightenment. Similarly, Martha Nussbaum, in The New Religious Intolerance, revisits the ideas of Locke and others in her analysis of modern ‘Islamophobia’. Her book is something of a tonic to Waldron’s, suggesting as it does that the US and not Europe is better-equipped to cope with the phenomenon.

Nussbaum begins with a tour d’horizon of anti-Islamic intolerance, and suggests that three things are needed in order to counter it: ‘sound principles involving respect for human equality; arguments that are not self-serving, targeting an alleged fault in the minority that is ubiquitous in the majority culture; and a curious and sympathetic imagination.’ This is followed by an analysis of the relationship between fear and intolerance, and – what seems to be all the rage at the moment in the literature dealing with free speech and its excesses – a careful formulation of dignity. The book ends with a discussion of the controversy over Park51 or ‘the Ground Zero mosque’, when various rightwing demagogues in the US sought to use the plans for an Islamic community centre in downtown Manhattan to stoke anti-Islamic feeling and improve their own positions in the polls.

All this is done with care and intelligence, but the sense that something important is missing from Nussbaum’s analysis is too strong to ignore. That something is perfectly caught in the book’s title, where ‘religious intolerance’ could be taken to refer to both intolerance of and by the religious. But not only does The New Religious Intolerance not deal with intolerance in the second sense, it appears determined to avoid the issue. For example, when Nussbaum is discussing anti-Semitism in the context of the relationship between fear and prejudice, she remarks on its prevalence ‘in some quarters today’. What she should have added is that many of those quarters are to be found in the community for which she fears. Islamophobia is undoubtedly a problem, but we cannot begin to understand it if we do not also take account of the various ‘phobias’ engendered by Islam. Not to deal with this issue openly was, I think, an error on Nussbaum’s part.

Again, more speech – more honesty and openness – would appear to be the prescription here. Nussbaum says some excellent things, but other things are left unsaid. And though I will defend to the death her right not to say them, her book would be stronger, not weaker, if she did so.

Jeremy Waldron, The Harm in Hate Speech
Harvard University Press; U$26.95; 285pp

Martha C. Nussbaum, The New Religious Intolerance
Belknap Harvard; U$26.95; 292pp

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First published in The Australian.