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.

If you'd like to get email from CJR writers and editors, add your email address to our newsletter roll and we'll be in touch.


Aryeh Neier , a former executive director of Human Rights Watch, is president of the Open Society Institute.