“Must We Defend Nazis?” seems to skim the surface of the hate-speech debate

Must We Defend Nazis?:  Why the First Amendment Should Not Protect Hate Speech and White Supremacy”, by Richard Delgado and Jean Stefancic (2018) seems to be a slightly condense reissue of the older “Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment” (1997) by the same authors.

The book largely focuses on racist hate speech, even though there are other groups that can be targeted, and indeed Nazi Germany’s targeting was based on religion first (Judaism does not define a race; most practitioners are white). So that sets up one problem outright:  Does race need special attention today as the object of hate speech?

Then, we have to define what we mean by hate speech.  The book is focused on the fact that U.S. criminal law maintains content neutrality which permits hate speech, whereas other democratic countries have stronger laws against hate speech per se. That’s not totally correct. Some speech in he US is illegal based on content, such as obscenity, child pornography, or terrorist recruiting. And there has been at least one Supreme Court case in the U.S. Bauharnais v. Illinois (1952) that allows the concept of group libel even in criminal law, but it has not had much effect.  And some tort law in the U.S., such as “intentional infliction of emotional distress,” would seem to allow the concept of group hate speech in civil cases.

Generally, hate speech laws abroad define hate speech as any public speech (whether a social media posting or a yard or automobile sign on a property) that tends to promote hatred against a protected group, especially according to race, religion, ethnicity, and sometimes sexual orientation or gender identity, and sometimes a disability.  The group animus is a broader concept in the U.S., where usually there has to be an imminent threat of lawless action (like incitement to riot). This understanding is a slippery slope that can create serious problems for Internet service or social media companies, book publishers and movie distributors. With speech content issues, social context and probable interpretation by the public means everything, and we’ll come back to this later, as the book seems to miss one big point.

A big question would be whether racist speech and especially neo-Nazi speech in the US should get more scrutiny than other “hate speech”.  I understand and somewhat sympathize with their argugment that US history (slavery, segregation, Jim Crow laws, police profiling) make “blacks” especially vulnerable to group oppression in some contexts.  I am rather shocked, given all the progress (having a black president in Obama) that the “whitelash” with the Trump election and alleged Russian meddling seems so severe, much worse than I would have imagined in the middle of 2016.  I do not like to get into a debate as to whether the white supremacy movement (as in Charlottesville) should be condemned more than the violent side of Antifa;  that’s like arguing about whether Hitler was worse than Stalin, Pol Pot, and now Kim Jong Un.  In fact, we should remember that in the 1950s Communism was much more feared “officially” than any resurgence of Nazism, although a tacit political balance allowed the overt racism (and KKK) in the South through the Civil Rights Movement of the 1960s. (That’s an idea in the “How Democracies Die” book that I’ll take up soon.)

When we talk about which groups should get more attention for past oppression, we have to remember that sexual harassment (especially by those with power in the workplace, mostly by heterosexual men against women) is now a sudden and major controversy that can also mediate free speech debates.

The book, to its credit, makes the point that “equality” and “free speech” (content neutrality) have tension between them, which cannot be resolved conclusively by any moral “theorem”;  axioms of choice must exist.  For example, because I have some money (some inherited, a lot saved after being earned  legitimately in the technology workplace for decades with conservative personal investments and little personal debt), and because I am a white male, arguably I have more leverage to have my speech listened to than the average African -American. (I talk about this in my 2014 DADT III book.) I could, however, speculate as to whether I have been discriminated against as a member of the LGBTQ community. My own history would make that claim a dubious one in my case, not necessarily in other LGBTQ people’s stories. It is true, as the authors claim, there is no systematic oppression of whites as compared to non-whites (“people of color”) that I would have had to face.  The authors (like on p. 34) make the point that some balance needs to be struck between “First Amendment free speech fundamentalism” and “legal realism”.  They also try to defuse the idea that “more speech” is the answer to edgy speech perceived (often incorrectly) as “group hatred”.  The ACLU particularly, is caught in the middle, as may also be the Electronic Frontier Foundation. The book seems particularly insulted by the existentialism of some of the libertarian right, which denounces trends  of promoting group-based victimization as somehow justifying personal character weakness.

It’s well to remember that the private sector generally has strong policies against hate speech, as usually understood by its stakeholders.  Books submitted to self-publishing companies generally go through “content review” to make sure they don’t constitute hate speech. Even twenty years ago, you would hear stories of people fired from jobs (“dooced”) for racial remarks in the workplace (in one case in Minneapolis, on a slip of paper).  Very recently, very large tech companies (starting with Cloudflare against Daily Stormer) have started to refuse to do business with entities perceived as hate groups (especially neo-Nazi);  Twitter said it would purge users who belonged to supremacist groups, as if it could spy on them. The advent of personal websites and social media created a novel conflict of interest risk, as I have shown in previous blog posts (and argued in DADT III):  a person with direct reports in the workplace might be considered prejudiced against certain groups by social media comments or self-published remarks uncovered by search engines.

Let me come back to the point the authors perhaps barely hint at in the closing chapter. The “offensiveness” of an item of speech can depend on the identity of the speaker and of public knowledge of the speaker’s circumstances.  There has been a problem with “meta-speech”, where satirical impersonations of the speech of others is not properly understood by some listeners, resulting in takedowns by social media companies (“Facebook jail”). Also, particularly on the far Left, “resistance” has sometimes focused on the idea that a person’s public mention of a controversy means that the issue is still unsettled, especially if the speaker did not have to put his own personal “skin in the game”. This gets to be elaborated to the point that the mere (intellectually motivated but emotionally aloof) mention of some ideas is viewed as recirculating “hate speech”. This observation is related to notions like “gratuitous speech” and “implicit content”, the latter of which got mentioned in the 2007 COPA trial.

A problem then that gets related to this is the “heckler’s veto”.  For example, there has been a case whether College Republicans have to pay increased security costs when a provocateur like Milo Yiannopoulos is scheduled to speak, even though his speech (if read carefully, like his book), actually is not racist.  The far Left, as well as sometimes the alt-right, can use the collective grievances of their base groups to maintain an illusion of hate speech from others whom they see as artificially “elite”.  Appeals to “personal responsibility” along with official “neutrality” are sometimes seen as actually intended but indirect enmity.   There is a good question of legal principal as to whether speakers (especially those without direct “skin in the game”) should bear the (legal or indemnifying) responsibility for causing themselves or those associated with themselves to be targeted by enemies (most of all, foreign enemies – look at the Sony hack case in 2014).  The recent ruling in Washington state is a step in the right direction (pun), I hope. On the other hand, restriction of some individual speakers could be seen by some (especially on the Left) as encouraging more solidarity (individuals could be forced to join groups to be heard at all) and promoting more equality (even forced group-oriented charity or supervised community engagement).

Harvard Law professor Alan Dershowitz criticized this book in this op-ed.

I must say, carrying this book around on the Metro got some quizzical looks from people.  And, whatever the original circumstances of the placement of various Confederate military statues in southern cities, to focus on their presence now as “hate speech” and “oppression” seems rather a stretch.  You have to remember history.

Author: Richard Delgado and Jean Stefancic
Title, Subtitle: “Must We Defend Nazis: Why the First Amendment Should Not Protect Hate Speech and White Supremacy”
publication date 2018
ISBN 978-1-4798-5783-8 paper
Publication: New York University, 8 chapters, 164 pages
Link: Publisher

(Posted: Sunday, February 11, 2018 at 8 PM EST)