Vol. 29 No. 10 (November 2019) pp. 127-130

HATE: WHY WE SHOULD RESIST IT WITH FREE SPEECH, NOT CENSORSHIP, by Nadine Strossen. New York: Oxford University Press, 2018. 199pp. Hardcover $24.95. ISBN 978-0-19-085912-1.

Reviewed by Keith E. Whittington, Department of Politics, Princeton University. Email: kewhitt@princeton.edu.

Although there are several free speech controversies swirling around these days, the argument over hate speech has recently been one of the most persistent, emotional and contentious. On college campuses, hate speech remains a flashpoint, more than three decades after the first wave of campus speech codes were adopted and in many cases struck down by the courts. Hate speech is often the rubric used to push controversial figures off social media and other Internet platforms. While the United States holds fast to a fairly libertarian set of constitutional rules regarding hate speech, many other advanced democracies have embraced a more regulation-friendly framework. Facebook workers tried to get Donald Trump kicked off the platform during the 2016 presidential election campaign on the grounds that he engaged in hate speech. A few months later, former presidential candidate Howard Dean confidently, if wrongly, asserted that hate speech was unprotected under American constitutional law. Dean may have been wrong in 2017, but his tweets might eventually prove prophetic. There is an active intellectual, legal, political and cultural debate over the future of the First Amendment and the status of hate speech in American law, and there is no reason to think that civil libertarians will always find themselves on the winning side in coming years.

Nadine Strossen has been fighting that fight for a while now. As president of the American Civil Liberties Union (ACLU) through the 1990s and much of the first decade of the twenty-first century, Strossen has been on the front lines of legal and political struggles over free speech in addition to other issues involving civil liberties. In the 1990s, she was often defending the civil liberties side in debates over the regulation of pornography and hate speech. Those particular debates seemed to cool off for a bit in the years following 9/11, but the hate speech debate, at least, is now back with a vengeance. Hate speech has often been a contentious issue inside the ACLU and among civil libertarians as well. Famously, the ACLU angered many of its own members when it came to the defense of the neo-Nazis who wanted to march in Skokie, Illinois in 1977. In the aftermath of the white supremacist rally that broke into violence in Charlottesville, Virginia in 2017, the ACLU once again found itself internally divided on how to position itself regarding such demonstrators. Strossen is among those who would plant the ACLU firmly on the side of those wishing to march in the streets, even when the cause and message of those marching is deplorable.

Strossen has a new book focusing on the hate speech issue, and continues to come down firmly against the effort to legally regulate such speech. It is a timely, forceful, and much needed book. It would make for excellent reading and discussion in undergraduate classrooms. Hate is published as part of the impressive Inalienable Rights [*128] series, edited by Geoffrey Stone (most recently of the Chicago Statement on the Principles of Free Inquiry fame) at the Oxford University Press. The books in the series are designed to be accessible to general audiences on contentious constitutional topics and offered on the market at affordable prices. HATE: WHY WE SHOULD RESIST IT WITH FREE SPEECH, NOT CENSORSHIP is no exception. It is short, punchy and engaging. It eschews the usual scholarly apparatus (more so than I would prefer); there are no endnotes, bibliography, or suggestions for further reading, and quoted sources, most often Supreme Court opinions, are simply described in the text itself. This is a work of advocacy, and there is less engagement with critics than scholars might like. It gets the point across, and there is plenty there for students to dig into and argue with. It should add to our broader cultural conversation about how best to respond to hate speech, but it might not satisfy those looking for a denser text for graduate students or academic research.

The book proceeds through nine brisk chapters that progressively build the case against relying on legal regulation (whether the formal governmental kind or the administrative campus code of conduct kind) to respond to hateful groups and expression. The book begins with an introductory chapter that sketches out the main points of the argument, emphasizing how the costs of hate speech regulations outweigh their benefits and that alternative strategies are available and more productive for countering campaigns of hate.

Subsequent chapters further expand those basic points. Strossen begins with a very brief sketch of the rise of modern First Amendment jurisprudence. As she notes, something like hate speech regulation would have been relatively easy to reconcile with First Amendment jurisprudence back when the government routinely arrested anarchists, socialists, labor organizers, civil rights activists, feminists, artists and pornographers for advocating political and social doctrines that the government thought dangerous and that might have a tendency to produce bad societal effects. The shift in constitutional jurisprudence expanded the realm of both freedom and equality by sharply restricting when the government could intervene to shut down speech that government officials found disturbing or disruptive. As a result, American discourse became more unruly and more democratic, with all the good and bad features of, and risks involved in, popular engagement with contentious issues. Pace Howard Dean, hate speech is constitutionally protected in the United States.

“Hate speech” itself is a shifting, shapeless thing. It is sometimes used in a fairly restrictive sense, but often morphs into something much more wide-ranging and ill-defined. Chapter Three tries to tease these various aspects of hate speech apart, with an eye toward specifying when and how something that might be called hate speech can in fact be regulated. Some of these might involve specific situations, such as when employees of a private employer are addressing members of the public as part of their duties (Strossen would endorse narrow and precise corporate regulations in such situations). Some of these might involve specific kinds of speech, such as the government regulation of true threats or harassment. Strossen tries to show those who might be sympathetic to hate speech regulation that there is a great deal that they could reasonably regulate, but that the hate speech framework as such is a clumsy and overly expansive way of trying to do so. [*129]

Chapter Four walks through the intrinsic ambiguity of hate speech regulations as such and the problems that can flow from that. Strossen notes that hate speech regulations have proven to be extremely difficult to draft in a way that will not open the door to problematic applications, and indicates how the actual administration of hate speech regulations has often led to the suppression of the very speech that the proponents of the regulation would want to protect. Her examples here are partly drawn from the American context, such as the drafting and implementation of campus speech codes, but much of the discussion focuses on how hate speech laws have been used in other countries where American constitutional restrictions are not an obstacle. She contends that foreign jurisdictions do not provide happy examples of good hate speech laws, but have instead been plagued with many of the problems that American civil libertarians would expect.

After showing in the previous chapters that actual examples of hate speech laws have often been vague and broad, Strossen asks in Chapter Five whether it might be possible to more carefully draft a narrowly tailored hate speech regulation that avoids the worst of those problems. This chapter tests out a few alternatives, ranging from efforts to build some standard of harm into the regulation to efforts to hone in on speech from certain kinds of speakers or directed to certain kinds of audiences. She ultimately argues that they all come up short.

Chapter Six takes a different argumentative approach and asks a different kind of question: how harmful is the kind of hate speech that is constitutionally protected in the United States? This chapter argues that the evidence suggesting that hateful speech actually causes much significant harm is quite limited. Much like the speech suppressed under the old bad tendency test, Strossen argues that the speech that would be suppressed under a hate speech regime is mostly just assumed to have bad consequences because the would-be regulators really do not like that speech and do not like the social and political ideals that such speech is intended to advance. The regulators take it on faith that the speech they think is bad is also actually harmful, but Strossen does not think they could demonstrate those bad effects if we used a legal standard with any kind of teeth.

Chapter Seven similarly questions whether hate speech regulations are actually an effective means of reducing the alleged harms. Even if you accept that there are genuine harms being caused by hate speech, it does not necessarily follow that hate speech regulations would effectively reduce those harms in any significant way. Again, Strossen thinks the evidence for the efficacy of hate speech laws is thin, and, what is worse, they might even be counterproductive.

Chapter Eight offers some alternative strategies for countering hate speech other than empowering censors to try to suppress such speech. The emphasis here is on counter-speech, empowerment, advocacy, and education. Rather than trying to suppress those who would engage in hate speech, Strossen urges us to build up countervailing forces to resist their impact and countervailing movements to win the battle of hearts and minds so as to isolate and marginalize the haters. The final chapter offers a brief conclusion.

Strossen offers a lot to chew on. She engages serious and important arguments, recognizing the genuine concerns that hateful social movements raise while trying to suggest that hate speech regulations are [*130] not the only, and may not even be the best, way of responding to such movements. Not everyone will be persuaded, of course, and the brevity of the argument will leave some questions unanswered, but these are serious arguments worth engaging. For those of us inclined to think that all right-thinking people should gladly take any opportunity to punch a Nazi, Strossen provides a needed explanation for why progressives have a stake in extending legal protections even to Nazis.

© Copyright 2019 by the author, Keith E. Whittington.