Hate Speech and Democratic
Responsibility: Rights, Civility, and
Dignity
Copyright © 2024
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 hat in the United States 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 issues.
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
a 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
maintained socially.
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.
[1]Jeremy
Waldron,
The Harm In Hate Speech (Cambridge: Harvard
UP., 2012), p. 105. Emphasis [bold] added
to the passage.
[2] Amy
Gutmann and Dennis Thompson,
Democracy
and Disagreement: Why Moral Conflict Cannot Be
Avoided In Politics, and What Should Be Done
About It (Cambridge: Harvard UP, 1996), pp.
79-80.
Emphasis [bold] added to the passage.
For a quick characterization of
deliberative democracy see my
“A Quick Introduction To Deliberative Democracy
and Democratic Education.”
[3] “In
wake of Ohio University Scandal, Gutmann
Addresses Free Speech,” by Corey Stern,
The Daily Pennsylvanian, March
31, 2015, accessed on/ 04/16/22.
Emphasis
[bold] added to the passage.
[4]
Christopher L. Eisgruber (President of
Princeton),
“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.
Viewed online on 03/29/22.
Emphasis [bold] added to the passage.
[5]
Ibid.
Emphasis [bold] added to the passage.
[6]
Ibid.
[7] Keith
Bybee,
How Civility Works (Stanford: Stanford UP.,
2016), pp. 57-58.
Emphasis [bold] added to the passage.
[8] Annette
Baier, “Claims, Rights, Responsibilities”
in
Prospects for Common Morality, eds. G. Outka
and J.P. Reeder (Princeton: Princeton UP.,
1993), pp. 149-169.
Reprinted in Baier’s
Moral
Prejudices: Essays on Ethics (Cambridge:
Harvard UP., 1994), pp. 224-246, pp. 232-233—all
citations to this paper will be to this reprint.
[9]
Ibid.,
p. 237.
[10]
Ibid.,
p. 238.
[11]
Ibid.,
p. 241.
[12]
Ibid.,
p. 242.
[13]
Ibid.,
p. 243.
Emphasis [italics] added to the passage.
[14] Seyla
Benhabib, “Thinking Without Banisters,”
New York
Review of Books v. 69, 02/24/22, pp. 26-28,
p. 26. The
following two citations are from the same page.
The citation
is to Arendt’s
The
Origins of Totalitarianism (NY: Harcourt
Brace [1951] ,1979), pp. 297-298.
[15] Joseph
Stiglitz,
People, Power, and Profits: Progressive
Capitalism For An Age of Discontent (NY:
W.W. Norton, 2019), p. 10.
Emphasis [italics] added to the passage.
[16] Cf.,
Otto Neurath, “Protocol Sentences,” trans.
George Schick, Erkenntnis v. 3
(1932/1933).
Reprinted in Logical Positivism,
ed. A.J. Ayer (NY: Free Press, 1959), pp.
199-208, cf. p. 201.
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Last revised: 07/27/24