Waldron, Jeremy. The Harm in Hate Speech: The Oliver Wendell Holmes Lectures.

Thomas, Paul

WALDRON, Jeremy. The Harm in Hate Speech: The Oliver Wendell Holmes Lectures. Cambridge, MA: Harvard University Press, 2012. vi + 304 pp. Cloth, $26.95--Jeremy Waldron argues that if hate speech is treated as something that tends to defame a racial or religious minority group, and if such speech is disseminated without fear of legal reprisal, it undermines an identifiable public good: the basic principle of inclusion in society for all its members. By being an assault on the dignity of some members of society, hate speech is by extension an assault on all members of society. A free society is one in which everybody "can know when they leave home in the morning, [that] they can count on not being discriminated against or humiliated or terrorized." These assurances provide for the "permanent visible framework of society;" Waldron compares the damage done to this framework caused by hate speech to an "environmental threat to social peace, a sort of slow-acting poison" that robs those who are targeted by hate speech of their dignity and integrity. Seen as a "slow-acting poison," hate speech is characterized by a dangerous indeterminacy; once set in motion, you can never foresee when the damage it entails will kick in, or when things will have gone too far and a point of no return reached.

It is often said by those who would all the same permit a measured amount of hate speech that doing so releases pressure or lets off steam. This rather hydraulic view of the matter presupposes that there is a fixed amount of hatred seething or festering beneath the surface of society, and that once released, it will dissipate or evaporate once and for all. There is no evidence for either assumption; who is to say that letting off steam runs no risk of emboldening or encouraging others to let off--or let out--more of it?

It is unsurprising that many answers to such questions in liberal democratic societies have involved state regulation of hate speech. What is more surprising is that the United States of America is the only liberal democracy in the world without some version of such regulation, or that the United States is by extension the home, the very haven of those who are (with some exaggeration) termed free speech absolutists. However, the idea that regulation of free speech offends the United States Constitution emerged not with the Constitution bur rather later, among its various (and mainly twentieth-century) judicial interpreters, as Waldron does well to show on the basis of historical evidence. In any case, the First Amendment does not protect free speech in the instances of perjury, fraud, or defamation of (individual) character. More to the point, the First Amenchment does nothing to lessen the damage to the social environment caused by hate speech, and this is where Waldron's argument is most telling and effective.

Waldron is aware that hate speech is strictly speaking a misnomer, particularly if its "hate" component is held to imply that what is at stake is primarily how someone feels about something derogatory that is said. But the protection of human dignity is different in kind from, and extends much further than, hurt feelings. As to the "speech" component of hate speech, Waldron allows that it is distinguishable from the more lasting abuse involved in writing, but adds that this distinction is one of degree, not of kind. The harm caused by defamation is enhanced by any increase in the number of Victims it defames.

These points about hate speech are acknowledged in one prominent instance of the kind of hate speech legislation that some prominent United States jurists have shunned: the United Kingdom's Public Order Act. This stipulates that "a person who uses threatening, abusive, or insulting words or behaviour ... is guilty of an offence if (a) he intends thereby to stir up racial hatred, or (b) having regard to all the circumstances, racial hatred is likely to be stirred up thereby."

Against such provisions, the stance of despising what the racist says while defending "to the death" his right to say it smacks of "liberal bravado" or of self-indulgent posturing if the despiser/defender is not targeted by or on the receiving end of the threat(s) involved. But Waldron is not trying in this book to persuade readers "of the wisdom and legitimacy of hate speech laws," nor is he "trying to make a case for [the] constitutional acceptability" of these laws in the United States.

Waldron thinks it "unlikely" that they "will ever pass constitutional muster" in the US. "The point is not to condemn or reinterpret ... United States constitutional provisions, but to consider whether American free speech jurisprudence has really come to terms with the best that can be said for hate speech regulations." Waldron proposes in this book to raise the level of debate, not to settle its terms. He succeeds admirably.--Paul Thomas, University of California, Berkeley.