Just recently, a federal court in Oregon prevented a public high school from banning an anti-immigration T-shirt from its campus, notwithstanding the shirt’s capacity to be viewed as offensive, even hateful. According to Nadine Strossen’s latest volume, Hate: Why We Should Resist It with Free Speech, Not Censorship, this is an outcome to be celebrated—not merely because it comports with the Constitution, but because so-called “hate speech” bans are unconstitutional and ultimately counterproductive.
Hate is a slim volume, consisting of nine chapters where Strossen, a former president of the American Civil Liberties Union, makes her case. The book presents itself as an accessible legal brief aimed at the social justice left, which appears to be forsaking its 1970s-era robust view of free speech, as well as First Amendment practitioners looking for a distillation of the state of play.
For the practitioner, the book is a workmanlike review of the concept of “hate speech,” grounded heavily in American constitutional precedent. Attorneys and judges will be happy to keep this volume on the shelf for its citations to Thurgood Marshall’s First Amendment legacy alone. In particular, Strossen highlights Police Department of Chicago v. Mosley, a 1972 Supreme Court case that struck down a Chicago ordinance banning picketing and protests within 150 feet of schools. It deserves to be regularly cited in briefs by First Amendment advocates.
But Hate is also a welcome, layman- and liberal-friendly guide to the basic principles behind freedom of speech in the United States, and the dangers of what Strossen calls the “elastic power” that so-called “hate speech” codes entrust to governments. If you have ever wondered what emergencies can actually justify curtailing speech (it’s not merely a matter of “offensiveness”), or what happens in states where such laws are already enforced, Strossen provides exhaustive examples and evidence.
To this end, it is unfortunate that the book does not have much visible sourcing, either in-text, endnotes or footnotes—rather, Strossen’s list of sources is placed online. Perhaps this is the wave of the future, but her arguments, while sound, would ring truer with easy access to the citations.
Furthermore, Hate persuasively argues that going beyond present law and directly banning “hate speech” would be grossly counterproductive. Strossen makes the case that if hate speech laws were on the books throughout the last half of the twentieth century, there would have been no civil rights era, and precious little advance of the gay rights agenda in the twenty-first century.
After all, hate speech laws, like all laws, must be enforced by the state—and in a democratic society, that means the present majority. The law is a blunt and powerful censorial tool that, as Strossen demonstrates using examples from Europe to Africa, is often used in actual practice to silence the minority groups “hate speech” laws purport to protect.
In one particularly damning example, Strossen points to the University of Michigan’s experience with a “hate speech” code in the late 1980s, and informs the reader that the code—designed to shield minority groups—was actually used almost entirely by white students to sanction black speakers.
At a time where free speech is being criticized on social media and college campuses as nothing more than a stalking horse for the “alt-right” or white nationalism, these facts are a vital corrective. Indeed, two political figures that reoccur throughout Hate in opposition to penalizing “hate speech” are Eleanor Holmes Norton and Barack Obama—two Americans very unlikely to be labeled as alt-right or white supremacist heroes.
Strossen concludes that, ultimately, even if one does not buy the constitutional or legal concerns with “hate speech” laws, there are much better ways to advance social justice causes. Offended parties who emulate John C. Calhoun—who once argued that “abolitionists who criticized slavery ‘libeled the South and inflicted emotional injury’” upon its people—make poor advocates.
Better to respond to hateful language with counter-speech, debate, and discussion, rather than shout-downs and shunning. Ultimately, Strossen counsels that people must listen to one another, persuade, convince, and when necessary—without state coercion—apologize. Not only is this more effective than enacting hate speech codes, people of all sides might come to simply “know better.” And people cannot do that if the state gets in the way.
To anyone with a passing interest in free speech jurisprudence or anyone simply piqued by the campus controversies of the stormy present, Hate is—like the First Amendment itself—a pointed, swift read.