Hate: why we should resist it with free speech, not censorship, Nadine Strossen, OUP, 2018.
Nadine Strossen is Professor of Constitutional Law at New York Law School and she was the national President of the American Civil Liberties Union from 1991 to 2008.
As she points out, "Discussions about 'hate speech' have been clouded by conclusory condemnations, conflating many kinds of expression and action. Instead, we must draw critical distinctions between ideas that are disfavored, disturbing, or feared, which should be protected, and actions that are discriminatory or violent, which should be punished."
So, "violent and discriminatory conduct must be swiftly punished, and speech conveying discriminatory, hateful ideas should be strongly rebutted. But punishing ideas we consider hateful or discriminatory not only violates … fundamental free speech principles … it also may well increase intergroup distrust and discrimination rather than reducing them."
For example, pre-Hitler Germany had hate speech laws, enforced vigorously. Between 1918 and 1933 there were over 200 prosecutions of anti-Semitic speech. Leading Nazis served substantial prison terms. But, as Professor Strossen comments, "rather than suppressing the Nazis' anti-Semitic ideology, these prosecutions helped the Nazis gain attention and support. … The major problem with Germany's response to rising Nazism was not that the Nazis enjoyed too much free speech, but that the Nazis literally got away with murder."
As journalist Glenn Greenwald noted, "Nothing strengthens hate groups more than censoring them, as it turns them into free speech martyrs, feeds their sense of grievance, and forces them to seek more destructivemeans of activism."
Professor Strossen observes that "Someone who negligently conveys stereotyped views is likely to respond more positively to constructive educational outreach than to accusations of and punishment for 'hate speech'. Indeed, … even for people who consciously harbor and express hateful views, educational strategies are more promising than censorship foraltering such views and curbing their influence." A constructive educational approach works better than an adversarial, punitive one.
For example, Megan Phelps-Roper, a grand-daughter of the founder of the homophobic Westboro Baptist Church, started a Twitter account to spread its views. There she encountered people who challenged her views. Extended conversations with two of them changed her views and she left the church.
Professor Strossen sums up, "The reason why I still believe that we should continue to protect 'hate speech' is well summarized by another old saying: 'The cure is worse than the disease.' Even worse than speech's potential power to harm individuals and society is government's potential power to do likewise, by enforcing 'hate speech' laws. Predictably, this elastic power will be used to silence dissenting ideas, unpopular speakers, and disempowered groups."
And indeed, 'hate speech' laws have been used to suppress unorthodox political views, in Turkey, the UK, Austria, Denmark, France, Switzerland, Poland, Canada, South Africa, Australia, Indonesia, Azerbaijan, Singapore, Kenya, and Rwanda.
For example, Danish citizen Firoozeh Bazrafkan was found guilty of 'hate speech' because she had stated that "Islamic codes give men the right to do whatever they want to women and children." The court pronounced that this was a statement "in which a group of people are mocked and degraded because of their beliefs." So, a statement about a belief was equated to mockery and degradation of people holding that belief.
Professor Strossen quotes George Washington University law professor Jeffrey Rosen: "Like universities and media outlets, online speech platforms should not be safe spaces. They should be democratic spaces, with the ultimate victors in the clash of ideas determined by reason and deliberation …"
As Van Jones, an African-American social justice activist, said, "I got tough talk for my liberal colleagues … on campus. I don't want you to be safe, ideologically. I don't want you to be safe, emotionally. I want you to be strong … I want you to be deeply aggrieved and offended and upset, and then to learn how to speak back. Because that is what we need from you."
