The lead article in the sports section of the July 1 New York Times was about an Italian football player of African descent who scored both goals in his team’s defeat of Germany in the Euro 2012 semifinals. It was not an article about racism, but it noted in passing that “he has endured racial abuse, monkey chants from Spanish fans, then more taunting chants from Croatian fans and a banana tossed onto the field.” That is more or less what one expects at many European football matches these days. Virulent expressions of hate have also become commonplace in other aspects of European public life with the rise of political parties such as Jobbik in Hungary, Golden Dawn in Greece, and Geert Wilders’s Party for Freedom in The Netherlands. Also, of course, while not so blatant in their expressions of racism, mainstream leaders such as former Prime Minister Silvio Berlusconi of Italy and former President Nicolas Sarkozy of France have found it politically expedient to provoke agitation against the Roma and against African immigrants.
One need go no further than the “stop and frisk” practices of the New York City police to realize that racism also remains a problem in the United States. Yet so far as the overt expression of verbal racism is concerned, its practice in this country seems to be at a relatively low ebb. When political figures such as Trent Lott or George Allen make statements that have a racist flavor, they are likely to pay a penalty. And it is difficult to imagine that present-day sports events would be regularly marked by displays of racial hate.
It seems odd, therefore, for Jeremy Waldron, a prominent legal philosopher who divides his time between professorships at Oxford and New York University’s School of Law, to publish The Harm in Hate Speech at this time. His elegantly written book argues that the European approach to this issue, in which the law gives primacy to the protection of the dignity—the key term in his book—of those who are the targets of hate speech, is far preferable to the American approach, in which the protection of freedom of speech takes precedence. To be more persuasive, Waldron ought to be able to show that the European way is preventing harms that are afflicting the US. Plainly, that is not the case.
Dignity occupies a central place in thinking about rights in Europe (especially continental Europe) and in some other parts of the world. Its importance in Europe is reflected in The German Basic Law of 1949, the country’s constitution, which begins in Article I with the assertion that “Human dignity is inviolable.” The term has a similar place in The Universal Declaration of Human Rights, adopted by the United Nations in 1948. The preamble begins with a sentence proclaiming the “inherent dignity . . . of all members of the human family.” This is followed by a statement about “barbarous acts which have outraged the conscience of mankind.” That is, of course, a reference to the atrocities of World War II, and it makes clear that much thought about rights in Europe and elsewhere is founded in that experience. American thinking about rights, on the other hand, is rooted in a much earlier period of history. It emerged out of struggles for religious freedom and freedom of speech in England and in the American colonies in the 17th and 18th centuries, and focuses on liberty as the essential value that should be protected by law. The centrality of dignity in European thinking and of liberty in American thinking, although by no means mutually exclusive, often leads to different approaches to the protection of rights.
Waldron’s book performs a useful service in defining the harm that is done by hate speech as an assault on dignity. He differentiates this from speech that causes offense, pointing out that offense is a subjective reaction that varies from person to person and “is not a proper object of legislative concern.” The dignity that should be protected by law, he says, involves the basic social standing of individuals within society. Accordingly, he favors laws such as the statute upheld by the United States Supreme Court in 1952 in the case of Beauharnais v. Illinois, which punished group libel. Though Beauharnais has never been explicitly overturned, it has long been recognized that it is no longer good law. It could not survive present-day scrutiny given the Supreme Court’s subsequent decisions in Times v. Sullivan (1964), which subjected libel laws to First Amendment standards; and in Brandenburg v. Ohio (1969), which held that even racist incitement to violence could only be punished if the circumstances made violence imminent.