Hate Speech and Democratic Responsibility: Rights, Civility, and Dignity

     Copyright © 2022 Bruce W. Hauptli

“Hate Speech” is so socially destructive that we need to revisit our views regarding the right to free speech if we to successfully confront racism.  Jeremy Waldron’s argument in this regard in his The Harm In Hate Speech hinges on distinguishing “undermining a person’s [or group’s] dignity and causing offense to that individual [or group]” [p. 105].  He discusses European Hate Speech Laws and asks:

are hate speech laws supposed to protect people from being offended?  I think not, and in this chapter I shall set out the basis of a distinction between undermining a person’s [or group’s] dignity and causing offense to that same individual [or group].  It may seem a fine line to draw, but…I shall argue that offense, however deeply felt, is not a proper object of legislative concern.  Dignity, on the other hand, is precisely what hate speech laws are designed to protect—not dignity in the sense of any particular level of honor or esteem (or self-concern), but in the sense of person’s [or group’s] basic entitlement to be regarded as a member [or members] of society in good standing, as someone whose membership of a minority group does not disqualify him or her [or them] from ordinary social interaction.  That is what hate speech attacks, and that is what laws suppressing hate speech aim to protect.[1]  

The remaining half of his book is an argument for such restrictions.  I find myself inclined to believe in America we need to have such laws if we are to successfully address racism [and, thus I would amend Waldron’s passage by adding ‘or group’ to each instance of ‘individual’, and would contend that hate speech encompassing groups is even more deserving of legal penalties].  Though it is not clear how effective they have been in the short time they have been in effect in Europe, the current political climate in the United States seems to have torn the fabric of civility asunder.  It seems as if too many of our fellow citizens do not even countenance the political equality of all citizens and don’t recognize the dignity of whole classes of citizens. 

In their Democracy and Disagreement: Why Moral Conflict Cannot Be Avoided In Politics, and What Should Be Done About It Amy Gutmann and Dennis Thompson maintain that making deliberative democracy work requires that each citizen must treat every other citizen reciprocally—that is as a political equal worthy of respect.  When this attitude is present, each “side” in a disagreement can work deliberatively to address, and potentially resolve the issue.  Even where this is not successful, it can yield understanding

the principles of accommodation are based on a value that lies at the core of reciprocity and deliberation in a democracy—mutual respect.  It is what makes possible cooperation on fair terms.  Like toleration, mutual respect is a form of agreeing to disagree.  But mutual respect demands more than toleration.  It requires a favorable attitude toward, and constructive interaction with, the persons with whom one disagrees.  It consists in an excellence of character that permits a democracy to flourish in the face of fundamental moral disagreement.  This is a distinctively deliberative kind of character.  It is the character of individuals who are morally committed, self-reflective about their commitments, discerning of the differences between respectable and merely tolerable differences of opinion, and open to the possibility of changing their minds or modifying their positions at some time in the future if they confront unanswerable objections to their present point of view. 

  Mutual respect not only helps sustain a moral community in the face of conflict but also can contribute toward resolving the conflict.^[2] 

In an interview with The Daily Pennsylvanian when she was the President of the University of Pennsylvania’s Gutmann provided a nuanced discussion regarding “…the balance between fighting racism while protecting free speech.”  The interviewer notes that:

Gutmann conceded…that there are limitations to free speech that must be considered, including threatening others or falsely shouting fire in a crowded theater.  She added that the context in which the statements are taken must be examined carefully. 

Regardless of whether certain speech is protected by the first amendment, Gutmann says that everyone has a responsibility to respond to speech they do not like.[3] 

Effectively she argued that within the University community hateful speech should be met with dialogue rather than being restricted.  A similar claim that the proper response to “hate speech” is “more speech” is offered in “Contested Civility: Free Speech & Inclusivity on Campus,” delivered as the Inaugural Arlin M. Adams Lecture on Law, Religion, and the First Amendment at the University of Pennsylvania Law School on November 12, 2019 by Christopher L. Eisgruber (then the President of Princeton) who maintains that

the remedy for bad speech is more speech, and the “more speech” might include speech indicating that someone else’s “bad speech” was not only wrong but also shameful.[4] 

He contends that

many controversies frequently characterized as being about free speech are better understood as contests about civility norms.[5]  

Such norms

…regulate what it is respectable, polite, or shameful to say....They need not be, and in the United States typically are not, enforced by laws, rules, or formal organizational discipline, but rather through social behaviors: people who violate a civility norm can be shamed or shunned. They lose standing and reputation.[6] 

In his How Civility Works, however, Keith Bybee maintains that:

…ordinary people are at once ethically attuned, willful, and vain.  Civility becomes valuable because it allows us to trade on significant yet often unobtainable moral standards, permitting us to call for expressions of concern and mutual respect without necessarily requiring very much in the way of actual virtue.  Civility does not attempt to untangle the threads of principle and passion that run through each person.  Instead civility provides a code of behavior and a set of conventions that channel human contradictions in socially productive directions, making possible cooperation and mutual benefit where one would otherwise expect empty moral gestures, self-seeking actions, and conflict.[7] 

While I believe that on college campuses and in similar settings a “civility norms”-based approach to hate speech may be effective, the fabric of civility is so threadbare at present in the United States that in the broader contexts of public discourse there need to be legal penalties for intentionally hateful racist speech.  Unfortunately, such penalties would likely require passage of a Constitutional Amendment to modify our First Amendment!  This will not be easy because many of us choose to very strongly privilege the right to free speech.  But we need to discuss such rights while paying close attention to what Waldron would call our collective responsibility to ensure respect for the human dignity of all our fellow citizens—dignity “in the sense of person’s basic entitlement to be regarded as a member of society in good standing, as someone whose membership of a minority group does not disqualify him or her from ordinary social interaction.” 

In fact, the prevalent American propensity to emphasize the right of free speech without an attendant recognition of individuals’ speech responsibilities is an instance of our propensity to believe that rights are primary and privileged, while responsibilities are of lesser importance.  Here Annette Baier’s “Claims, Rights, Responsibilities” is important and very relevant.  In her paper Baier argues that

…the language of rights is the language of language users who are becoming conscious of themselves as individuals….If there is any basic right, it is the right to be heard, to participate in normative discussion.  One’s first claim is the right to a voice, to one’s turn to speak and be listened to…..For disagreement is one of the distinctive cultural products that speech makes possible.  Without speech, there can be (and usually is) conflict, but not disagreement.[8] 

She goes on to discuss what she calls “the peculiar parasitism of rights:”

the language of rights directs attention to individual persons, and to them not as duty-bearers or contributors to the human task but as beneficiaries or claimants to a share of what is produced by the performance of that task….The language of rights pushes us, more insistently than does the language of duties, responsibilities, obligations, legislation and respect for law, to see participants in the moral practice as single clamorous living human beings, not as families, clans, tribes, groups, classes, churches, congregations, nations, or peoples.[9] 

Rights, I suggest, differ from obligations in that they primarily attach to individual persons, whereas parties to a tie of obligation, and responsibility holders can as easily be collectives as individual persons.  Rights differ also in their individuation, since what rights we recognize is affected by this key fact, that we see them as essentially the possessions of single persons, whereas our obligations can be to do things that no single individual could possibly do, things such as repaying a national debt or cleaning up our rivers.  Obligations and responsibilities are what we have collectively or individually, and are to do what can be done either cooperatively or singly.  Rights primarily have individual living persons in their scope, and are to actions that singe individuals can perform or to goods that individuals can possess.[10] 

I think that this popular doctrine that rights define a sort of core morality that demands of mutual right respecters an essential minimum of cooperation and coordination, is half right.  Rights do define a sort of individualist tip of the iceberg of morality, one that takes no extra organization to stay afloat, but that is because it is supported by the submerged floating mass of cooperatively discharged responsibilities, and socially divided labor.  Basic rights, I am claiming are rights of access to self-allocating public goods.[11] 

…my claim is that basic rights are indeed to what individuals can have, exercise, and enjoy, it is not just as single individuals, separate centers of value, sovereign selves but, rather, as individual participants in a cooperative practice that we have basic rights….Rights can be claimed, and when any attempt is made to claim or to “vindicate” any of these individual rights the claim and the vindication themselves have to employ the socially coordinated practice of speech.  The claimants and vindicators must exercise some social powers as participants in discourse.  Such declarers, proclaimers, and vindicators may often shout to the empty air, not to any respectful audience, or may be heard but laughed out of court, or contradicted or heckled or shouted down, but the very attempt to claim rights itself exercises basic hard-to-suppress rights to speak up for oneself and one’s people, rights that the public good of speech itself gives us.[12] 

Drawing these contentions together, she maintains that:

it is only as participants in a cooperative practice that we can have any rights.  The concept of responsibility, of being properly responsive to our fellow cooperators, is the more fundamental one, and its linguistic origins are obvious.  Rights are the tip of the iceberg that collective and individual responsibilities support.[13] 

If one is alone (or conceives oneself, and all others, as wholly without responsibilities to others), then a right to free speech becomes utterly pointless—others have no responsibility (or reason) to listen or to accord one’s words any importance.  All alone Robinson Crusoe can say whatever he wants (though he did need to be a part of a society to learn language.  But if he wants others to listen, to consider what he is saying, to possibly agree and even act on what he says, he not only needs others (who share his language with him) but he needs them to be cooperatively engaged with him (to be in a cooperative community with him).  This means they, and he, have a responsibility to treat the others as fellow “participants in a cooperative practice.”  Were he to believe that the others (or some of them) were not fellow participants with equal status (were he to believe he could have rights without responsibilities), then he might as well give up on talking and resort to brute force and conflict. 

Baier is, of course, not alone in thinking there is a “peculiar parasitism of rights without attendant responsibilities.”  In her “Thinking Without Banisters" Seyla Benhabib cites Hannah Arendt:

“the right that corresponds to [the loss of rights]...cannot be expressed in the categories of the eighteenth century because they presume that rights spring immediately from the “nature” of man....The right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself.  It is by no means certain whether this is possible.” ^[14] 

Benhabib follows this citation with the following statements:

perhaps no other passage captures Arndt’s political thought more sharply than his paradoxical claim that communities may deny certain members rights and belonging but that only humanity itself, and not an almighty ruler of a divine force, can prevent this from happening.  Humanity is both the culprit and the judge. 

Arendt's resolution posed by the right to have rights is that we must build institutions and practices that can sustain equality.  “We are not born equal,” she writes; “we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights.” 

Similarly, in his People, Power, and Profits: Progressive Capitalism For An Age of Discontent, Joseph Stiglitz suggests Enlightenment thinkers developed a new “grounding” for a commitment to democracy (though I think this claim may especially apply to the American founders):

the absence of royal or ecclesiastical authority to dictate how society should be organized meant that society itself had to figure it out.  One couldn’t rely on authority—either on Earth or above—to ensure that things worked out well, or as well as they could.  One had to create systems of governance.  Discovering the social institutions that would ensure the well-being of society was a more complicated matter than discovering the truths of nature.  In general, one couldn’t do controlled experiments.  A close study of past experiences could be informative, however.  One had to rely on reasoning and discourse—recognizing that no individual had a monopoly on our understandings of social organization.  Out of this reasoning came an appreciation of the importance of the rule of law, due process, and systems of checks and balances, supported by foundational values like justice for all and individual liberty.^[15] 

Here I think we have a way of understanding the very strong connection between rights and responsibilities within the democratic American context—neither come from “on high,” are “guaranteed a priori,” or have “species-wide” justification in “human nature”—though the Western tradition has held each of these to be the case.  Instead rights and responsibilities are social constructs which must be socially maintained.  Like trust, they are important for stable social communities. 

These socially constructions don't arise full-blown, however, instead they are developed as communities grow and prosper.  In our American context the view that rights are primary and responsibilities are secondary promotes a failure to appreciate how fundamentally social democracy is, while the reverse prioritization neglects the importance of individual integrity and happiness (and can lead all too quickly to the loss of the very individuality which democracy is intended to promote). 

It should be clear that there are clans and societies where either prioritization is in force, and even that there are clans and societies which don’t consider either fundamental.  Moreover, we reside in a particular country at a particular period, and need to examine and try to improve our political and moral frameworks from within this very unstable and unsatisfactory context.  In social settings where the “rule of law” is held to be important both responsibilities and rights are important.  Here I think it is useful to focus on a metaphor suggested by Otto Neurath:^[16] who thought we needed to conceive of scientists and philosophers (and I contend social theorists and reformers) as onboard shipwrights—all these individuals must revise and improve their theories and institutions from within their current theories and social contexts.  This necessitates carefully considering proposed changes and modifications as they float on a dangerous sea.  There is no dry-dock available for the inquirer (no external, a priori, or transcendental perspective from which they may construct wholly new theories or political communities, and they must use their current conceptual tools as they work to develop improved ones.  Using the pragmatists’ metaphor of our theories, beliefs, and communities being tools: our efforts to devise new tools rely on our use of existing ones—one must utilize existing resources as one develops new beliefs, theories, or communities. 

Of course, one may jump ship (give up on trust, give up on science, give up the connection between rights and responsibilities, or foreswear democracy), but in our current democracy one’s doing so does not obligate others doing so—jumping ship leaves the jumpers in the water on their own (though those onboard the ship may elect to throw them a life-line). 

It is important to note here that truth-telling (like other social responsibilities) generally does not have lawful enforcement procedures—while there are sometimes legal enforcements (in court, in police investigations, etc.), the general “enforcement” or the responsibility of is that liars are not trusted.  Those who lose the trust of their family, friends, business partners, or fellow citizens often suffer tremendously, and may find it difficult to regain trust.  Sometimes those lied to call out the liars and encourage others not to trust them, and here one’s reputation can be seriously impacted.  It is worthy of note that shame (and shunning) is a moral and civic (rather than a lawful) enforcement tool—while it can come about when one reflects on one’s own actions, public shaming has a very important role in enforcing truth-telling and many other responsibilities which have no lawful enforcement mechanisms.  Promising and parenting similarly involve a large number of responsibilities, and some of them have lawful enforcements.  But here again we find that reputation, shame, and civic disapprobation are significant enforcement mechanisms. 

While Gutmann and Eisgruber draw attention to the role which “civility norms” can play in enforcing civic responsibility, I think it should be abundantly clear that repairing the fabric of civility in our society will require stronger sanctions.  Had reconstruction gone differently, perhaps our current ship of state would be a better vessel than our actual one is, but given the implicit and explicit racism of many of the ship’s officers, crew, and passengers, it seems that protecting the dignity of all onboard requires legal restrictions in the case of hate speech.  If this requires modifying the important plank of free speech, then we must take up this modification.  It is well past time for redressing the implicit and explicit racism which arrived on when the slave ships docked (and of course even earlier when the European un-settlers similarly treated the indigenous people as if they were far from being citizens of the land they inhabited before the European un-settlers arrived). 

The question as to what sorts of legal penalties should attach to hate speech is not something I intend to take up here.  I do believe that until we do collectively take this question up, however, we are doomed to limit ourselves to “civility norms,” and to calling for the public shaming of hate speakers—following Senator Margret Chase Smith, we should all be yelling out: “For Shame, For Shame.  Have you no shame?”  Since the hate speakers appear to have no shame, however, their continuing failure to acknowledge their responsibility to treat their fellow passengers with dignity threatens to upend, and perhaps sink our ship of state.