Waldron concedes that American history is replete with examples of laws restricting speech that were implemented abusively, citing the 1798 Sedition Act, the World War I experience (by which he means the various federal and state espionage acts), and the World War II-era Smith Act. Yet in the two sentences that follow these examples, he dismisses their importance as precedents by asking, “But why would anyone think this was true of hate speech legislation, or laws prohibiting group defamation? Why is this an area where we should be particularly mistrustful of our lawmakers?” His answer is that this is an area where we should be especially trusting of government because hate speech laws are examples of “a legislative majority bending over backwards to ensure that vulnerable minorities are protected against hatred and discrimination.”

It is not a response that would satisfy many of the First-Amendment proponents with whom Waldron has his imaginary debates. Laws regulating speech, no matter how well motivated the lawmakers, must place a great deal of discretion in law enforcers. That is because there is an infinite number of ways to express any thought. New ways of conveying any point of view can readily be made up on the spot. It is easy to use code words, or to come up with nonverbal forms of expression that make a point (think of the football fan who threw the banana on the field where an Italian player of African descent was playing). The law may forbid portrayals of depravity, criminality, unchastity, or lack of virtue, but it is unnecessary for anyone imputing those characteristics to members of a given race, color, creed, or religion to use any of those words in their communications. It will always be up to law enforcers to interpret whether the actual words used violate the statute.

If Waldron had his way, he would limit the enforcement of hate speech laws to attacks on the dignity of vulnerable minorities. Yet he cites approvingly the laws of Canada, Denmark, Germany, New Zealand, and the UK, though none of them is limited in that way. All would punish defamation of groups of persons based on race, nationality, ethnic origin, or religion. That means that members of a minority protesting discrimination and, in the process defaming the group they hold responsible, are equally subject to such laws. Waldron’s focus on protection of vulnerable minorities may be preferable, but it is hard to imagine that a legislative body would restrict the application of such laws in that way. If it did, a court might well overturn such a restriction. Waldron’s modest attempt to reduce the discretion of the law enforcers is sure to fail.

Hate speech can have a devastating impact. Waldron deserves credit for identifying the harm and for requiring advocates of freedom of speech to think again about these issues. Yet by failing to identify an approach that is both effective in curbing hate speech and can be safeguarded against abusive enforcement, he leaves the debate where it was roughly half a century ago, when laws against group defamation went out of fashion in the United States.

 

Aryeh Neier is the president emeritus of the Open Society Foundations.