[This article, with minor changes not reflected here, appeared in the Spring 2003 issue of The Mankind Quarterly, pp. 335-352.] 

 

Conceptual Issues in Prohibiting "Hate Speech"

Dwight D. Murphey

Wichita State University 

                        "Hate speech," variously defined, has come to be prohibited in several countries and, despite the U.S. Supreme Court's sweeping support for free speech, is the subject of campus speech codes on many American university campuses.  The author is among those who see the prohibition as a threat to serious scholarship in particular and freedom of speech in general.  Unless "hate speech" is defined narrowly as virtually equivalent to what the U.S. Supreme Court calls "fighting words," he says, it is a concept that is in a number of ways profoundly flawed.

  

          Key words: Hate speech, hate literature, prohibited speech, scholarly freedom, freedom of speech, censorship.

             The widespread prohibition in recent years of "hate speech" and "hate literature" is so fraught with ambiguities, intellectual shallowness, and double standards that it poses a serious impediment to scholarship and to the values of an open society.  The United States, with its Supreme Court that has long championed the strongest possible affirmation of the freedom of speech, is a notable exception to what elsewhere has been a powerful trend toward the punishment of certain forms of expression.  This article will explore several aspects of the "hate speech" issue:

            .  Some leading examples of its use against scholarly endeavor;

  .  The varied definitions of "hate speech";

            .  The legislation and speech codes prohibiting it; and

            .  The category's many conceptual difficulties:

                      .  A failure to comprehend the vast extent of, and justifications for, human animosities;

                      .  The extent to which the world Left has made the concept a weapon against competing ideas; and

                      .  A wide assortment of other intellectual failures that flow both the concept and its application. 

1.  Use of the "Hate Speech" Concept Against Serious Scholarship

            A little over a half-century ago, the world intellectual community was outraged when Stalin's Soviet Union made science an instrument of ideology.  In 1948 the Lenin Academy of Agricultural Sciences endorsed the theory formulated by biologist Trofim D. Lysenko that an organism passes environmentally-acquired properties on to the next generation.  All teaching of Mendel's theory of heredity-only-through-genes was thereafter suppressed in the Soviet Union until more than a decade after the death of Stalin in 1953.  Mendel's genetic insights were denounced as "bourgeois science."

            The "Lysenko Affair," as it came to be known, scandalized the scientific world.  The inconsistency of such an ideological manipulation of scientific inquiry with the nature of science as an on-going inquiry into facts and their implications, conducted in good faith and with strict honesty, was widely understood.

            Today, in contrast, we find that broad areas of inquiry are sealed off from even the most objective and careful study.  With regard to those areas, ideology, backed by the prohibiting powers of the state, reigns supreme.  In the circumstances of today's world, there is no international outcry against the censorship.  In its place, there exists a near-universal desire to conform thought to what respectable opinion considers ideologically acceptable (euphemistically known as "politically correct").  Given such a milieu throughout the Western world, today's threat to scholarship and true science is far greater than it was in Lysenko's day.

            This was brought home forcefully to the author by a personal experience.  I wrote a legal studies monograph, Lynching: History and Analysis—only to see Canada ban it as “hate propaganda.”  I was attracted to the subject of lynching twenty years ago while doing the background reading for my history of liberal thought.  The research involved reading, among many other things, all issues of The New Republic (except one three-month volume that was missing from the shelves) from the time of the journal’s inception in 1914 until early 1985.

            I added the subject of lynching to my list of topics to research in the future when I found some surprising facts.  One was that The New Republic ran an annual editorial until the mid-1930s recounting the number of lynchings in the United States, but that the editorials stopped because by that time lynching had virtually disappeared from American life.  This ran counter to my impression that significant lynching had continued until it was beaten back by the Civil Rights Movement after World War II.  I was also surprised to find that lynching had not been confined to the South, but instead took place throughout the United States.  Further, its victims had by no means all been black.

            Whether I achieved an objective study of lynching is best judged by readers who peruse the enter monograph.  I found that there is a "conventional wisdom" about the subject that is simply not supported by the facts.  It is alleged, for example, that lynching is unique to American society, born out of Americans' putative inclination toward violence; but the facts show that lynchings have occurred throughout the world.  There were a reported 500 lynch-mob executions in Brazil in 1991 alone. 

            And, as counter-intuitive as it may seem to those conditioned by today's perceptions, the history reveals as fallacious the charge that "lynching was Southern whites' way of suppressing blacks."  What the author found was that lynching has been the way frontier communities (including those in a frontier-like South after the Civil War) have reacted to outrages when those communities have felt themselves free from constraints imposed by a broader polity.  Black leaders themselves, such as W.E.B. DuBois, acknowledged that the post-bellum South was confronted with a significant criminal element among its black population, committing acts of extreme cruelty.  At a time when people in the West and even the North were hanging their desperadoes, it is, I reasoned, far more sensible to explain the lynchings in the South by relating them to communities' response to the high crime rate among blacks than to lay it at the doorstep of "Southern racism."

            These and other views stated in the monograph ran counter, of course, to "politically correct" thinking. Just the same, the monograph contained a reasoned and in no sense malevolent analysis of historical records.  Whether it was correct is subject to debate.  Canada, however, has not permitted that debate.  A representative of the Canadian ambassador to the United States confirmed to me that "as we understand, Customs prohibited the entry into Canada of a copy of your monograph that an individual was attempting to import because, taken as a whole, it was considered to incite hatred against an identifiable group in Canada."

            What is significant about this for purposes of the present article is that the category of "hate propaganda" was used against a work of serious scholarship.  That this is so is especially significant today because Americans' image of their past has been placed in issue by the "culture war" in which virtually every aspect of their past is asserted to have been depraved. 

            If people in otherwise-open societies condone the prohibition of "hate speech" because they think it relates only to egregious and salacious outpourings of bigotry, they don't fully appreciate the sweep of the prohibitions and of their potential abuse against legitimate inquiry.  What is most at issue is objective, careful  scholarship.

            While Americans' memory of their past is vastly important, there are other areas of scholarship and scientific research, also very important, that are today barred from discussion.  If, say, one studies "global warming," one finds much ballyhoo and fakery in the predominant literature.  Those whose findings disagree with what is ideologically acceptable are largely shouted down or ignored.

            There is a taboo, often enforced with violence, against those who wish, in even the most careful scientific manner, to study intelligence, genetics and racial characteristics.  These studies often challenge the premise that certain ethnic groups are “victims of the majority society.”  It is a mistake to think that “only neo-Nazis study those subjects”; despite the taboo, those areas have continued to be subjects for study by scientists of high standing who have no affinity to Nazism.

            Needless to say, the most insistent taboo is applied against those who question the standard account of what is known as the Holocaust by the Nazis against the Jews.  Those who have never read the competing literature necessarily consider it outrageous to doubt that standard account, which stands largely on three assertions: a killing of six million, the existence of gas chambers, and a systematic policy of extermination.  The author of this article is no expert on the subject, and is inclined not to discuss its merits until he has completed his own study; but I have read much of the work on both sides, and I would be less than forthright if I were unwilling to report my honest opinion of it: that the "revisionist" literature is serious, calm, free of "hate," and intellectually rigorous.  It can be denounced as "hate literature," and its authors sent to jail (as they are in, say, Germany and France), only by those who are convinced that the Jewish experience under the Nazis must be off-limits to continuing  inquiry. 

            This is something for the proponents of a free society (Popper's "open society") to ponder.  Are there to be limits to critical inquiry that is conducted in a scholarly and reasoned tone?  If so, how and by whom are those limits to be determined?  The argument is made that it is ridiculous and vicious per se to examine the evidence about the Holocaust.[1]  That argument contains, at the very least, a significant pocket of totalitarianism, much as someone suffering from retinitis experiences blocked-out spots in his vision.    

2.  The Concept of "Hate Speech"

            The author of this article has read many of the recent books, law review articles and Web publications on "hate speech."[2]  It will be instructive to see how those sources define "hate speech."  As we do so, let us note some of the conceptual problems in the definitions, even though much of the remainder of this article will also be devoted to conceptual flaws.

            One source says "hate speech...can be defined as extremely offensive personal insults and characterizations that are directed against an individual's or group's race, religion, ethnic origin, gender, or sexual preference, and which may incite violence, hatred, or discrimination."[3]

            This definition is more or less typical, although there are often variations in the list ("race, religion...") that is included.  Several things stand out about the definition just quoted:

            .  The definition would in no reasonable application extend to the serious scholarly work we have mentioned above, since it limits itself to "extremely offensive personal insults and characterizations."  This would encompass the "fighting words" that might occur in a barroom or in a demagogue's speech, but not reflective intellectual work.

            .  The definition contains several words that are so ambiguous that they can be stretched or compressed at will.  "Offensive," "directed against," "hatred," and "discrimination" have variations of meaning; but notice especially the ambiguity of "extremely" and, most particularly, of "may."  In American law, a punitive statute that is ambiguous is unconstitutional for several reasons: it gives wide discretionary power to the prosecutor and the trier of fact; it is conducive to double standards in application, something that lends itself to unequal justice and political abuse; and it doesn't adequately place individuals on notice, either before they act or as they defend themselves, of what is lawful and what is not.

            .  The litany of "race, religion, ethnic origin, gender, or sexual preference" must be understood as ideological, reflecting the Left's championing, since World War II, of a number of unassimilated or disaffected groups against the main society.  Before World War II, the Left's primary focus was on championing the "proletariat," at which time it spoke of "exploitation" as society's central problem.  When for a number of reasons that emphasis was given up, the alienated intellectual culture that lies at the heart of the Left sought other allies against the predominant culture in Europe and America.  Most of the ideological developments of the past half century can be best understood as the elaboration of superstructures of ideas to champion those "outsider" groups.  "Victimization" has taken the place of "exploitation" as the central concept; and much of the world is seen as the victim of Western civilization in general and the United States in particular.

     .  It should be noted that very few such litanies include "class" hatred.  The list is geared only to what the Left cares about, even though millions were executed in the name of "class struggle" during the twentieth century.  This reflects the ideological double standard that persists to this day between the much-perceived abuses of "the Right" and the profoundly ignored abuses of "the Left."

            .  Special attention should be given to the idea of the words' being "directed against" someone.  Another source's definition speaks of "language that is targeted...."[4]  Again, this relates most appropriately to rabble-rouser speech; i.e., to "fighting words."  To say, as Canadian Customs says about the monograph analyzing the history of lynching, and as German and French courts do about the research that questions aspects of the Holocaust, that the ideas are "targeted" against someone is to commit a major logical fallacy.  It falls within the realm of the "material fallacies" whereby attention is focused not on the validity of, and support for, an idea, but on extraneous factors.  The material fallacies include such things as appeals to pity, to force, or to whether the proponent of an idea is likeable.  When seriously proposed ideas are taken to be "directed against" someone, the argument is personalized.  With the context shifted, the idea can be written off without ever having reached a discussion of its merit.   

            The argument that ideas such as research into the Holocaust are "verbally aggressive acts hurtful to many people"[5] is a similar personalization that locks the research into a compartment where it is no longer necessary to consider its merit.  There are times when the uttering of words is properly considered, in fact, the commission of an act, such as when one person tells another "don't go near my daughter or I'll shoot you."  But this must be kept in its proper context. The transformation of scholarly inquiry into "an act" is singularly anti-intellectual.

            It is especially important to realize this in connection with the drive against "hate speech."  The drive acquires an outer sheen of legitimacy from the fact that no decent person wants the civility and peaceful relations that should exist among people to be destroyed by slurs and insults.  But the drive against "hate speech" goes well beyond that.  The relatively new concept of "political correctness" arises from the general European and American acquiescence in the Left's worldview and in the Left's insistence (a la Herbert Marcuse) that its outlook is the only one that deserves moral standing to be heard.  

            .  We reach, then, a paradox.  If legitimate reflection and research can be wiped away without considering their merit, is this not in itself precisely a manifestation of "hate" against the person who is attempting a civilized discourse?  Those who study intelligence, say, have suffered many violent assaults.  Is the researcher the "hater"?  Or is it not, rather, the persons who will bloody his head to keep his results from being heard?

            The paradox that those who seek to silence speech may be the "haters" was illustrated in 2001 when the "American Indian Movement of Colorado" opposed the commemoration of Columbus Day.  A spokesman for the movement wrote a Denver paper speaking of "Christopher Columbus, a man personally responsible for the genocide and enslavement of Native Americans, and a hated symbol for Native Americans."  At the same time, the letter urged people to see "the ‘celebration' of Columbus for what it is: hate speech...."[6] (emphasis added).  We see that the spokesman first expressed hatred and then charged those who celebrate Columbus Day with being haters.

            Although this may seem a paradox, it relates to our later discussion of the fact that there are many deeply-felt animosities in the world, often quite well-founded; and that it should not be surprising to find emotions strong on both sides of a contested issue. 

3.  The Legislation and Speech Codes

            This article is intended mainly to discuss the conceptual issues raised by the category of "hate speech."  It would side-track us too greatly to examine extensively the specifics of the prohibitions.  In what follows, they will be reviewed only to the extent needed to "flesh out" the existence of such censorship.  The review will be valuable because unless the concrete reality of such prohibitions is grasped, the discussion may seem purely academic.

            Prohibitions against "racism" and "xenophobia."  These come from multiple sources, which include but are by no means limited to: the International Convention on the Elimination of All Forms of Racial Discrimination; the International Convention on Civil and Political Rights; the European Union's "Action Plan Against Racism"; Part III of the Public Order Act of 1986 in the United Kingdom; the "Human Rights Act" in British Columbia; Section 319(2) of the Canadian Criminal Code; Section 13(1) of the Canadian Human Rights Act; and in the United States, it is said, "a number of colleges and universities decided to restrict hate speech and adopted codes of student conduct penalizing forms of expression based on race, gender, religion, marital status, sexual preference, and physical capacity."[7]  We are told that "as many as 70 percent of the more than 3,500 institutions of higher learning in America may have some sort of code designed to place restrictions on speech deemed offensive."[8]

            Prohibitions against opposing immigration.  In a case arising in the Netherlands, the European Commission on Human Rights upheld a "conviction for inciting racial discrimination by urging the removal of immigrants from the Netherlands."[9]

            Prohibitions against criticizing homosexuality.  By a close vote in June 2002, "Swedish lawmakers approved a constitutional amendment that bans speech and printed materials opposing homosexual lifestyles."[10]  The amendment was to be voted on again three months later.

            Prohibitions against "denial of genocide," "excusal of crimes against humanity," and "Holocaust denial."  The Fabius-Gayssot law in France, enacted in 1990, declares it a crime to "contest" the "crimes against humanity" as they were found to have occurred by the Nuremberg International Military Tribunal in 1945-6.  Germany, Austria, Belgium, Spain and Switzerland have followed suit.[11] In 1999, there were other laws in Israel, The Netherlands, Poland, and Lithuania outlawing skepticism about the Holocaust.[12]  The Austrian law has made it illegal to "deny, grossly play down, approve of, or seek to justify..." genocidal acts by the Nazis.[13]

            A number of individuals who have argued a scholarly case that, in effect, the Holocaust account has been grossly exaggerated or falsified, but who have in no sense been "skinheads" or "neo-Nazis," have been prosecuted and punished under these laws.  David Irving, for example, is one of the world's most exhaustively careful historians, basing his writings on a meticulous examination of archives.  He was fined 30,000 marks in Germany for pointing out that the "gas chamber" shown to tourists visiting Auschwitz isn't authentic.  It was held that in such a prosecution "truth is not a defense."  Arguably the leading "revisionist" historian, among several who might qualify, is Robert Faurisson, whose writing clearly falls within the realm of serious and legitimate scholarship by someone who is not seeking to present a pro-Nazi position.  Numerous prosecutions have been brought against him.  Whatever we may ultimately conclude about the merit of their arguments, it is testimony to the great personal strength, courage and mental stability of these individuals that they continue to present their findings in reasoned tones despite what amounts to an intellectual pogrom of long standing against them.           

4.  Conceptual Problems: A Selective Dip into a World of Endless Animosities

            We have already commented, and will see further in the next section, that many of the "hate speech" proscriptions are selective, reflecting the Left's worldview.  That is a reason for objection, of course, but before we examine that more deeply it is worth considering what even a non-selective ban on any articulation of "hate" would entail.

            Civilization would not exist if there were not an enormous amount of cooperation, orderly competition, civility, friendship, affection, and constructive building.  At the same time, the world is one in which there are countless animosities, many intensely felt.  It is naive to think, as much current ideology suggests in its blatant reductionism, that the great bulk of this feeling is gratuitous, based on ill-informed racial or ethnic stereotypes.  Rather, it arises from many sources. 

            An especially significant source is conflicting perceptions of outrages mutually inflicted, sometimes in what seems infinite regress, by one group upon another.  Imagine having seen your mother or brother's arms hacked off by a machete.  Would the rage against those who did that ever leave you?  We see the dimensions of this rage when we recall that in just the recent past there have been 500,000 to 800,000 killed in Rwanda, more than a million and a half in The Sudan, 30,000 to 50,000 in Tajikistan, 70,000 to 80,000 in Algeria...and that just starts the list.  Thirty million people are reported (belatedly by Public Television in the United States) to have been starved to death by Mao under his insane "Great Leap Forward." It is too much to imagine that the rage does not burn within the souls of the survivors.  We are aware of that continuing anguish and rage among the "survivors of the Holocaust" because of the on-going dramatization given to their pain, but we need to understand that there are hundreds of millions of others in the world who feel every bit as much rage.

            Nor is it just rage over horrors committed.  Behind those horrors lie conflicting ideologies, religions, myths, interests and cultures – all supported by a complex web of ideas.  What we need to note about this is that these teeming ideas are the very stuff from which the more important issues within human discourse are formed.  When we consider that "open societies" value "freedom of speech," what we should most especially keep in mind is the speech that deals with the things about which people feel most deeply.  Discourse is often about things that are in no sense trivial.  To characterize large segments of that discourse as "hate speech" is not only to militate strongly against the "freedom of speech," but is to attempt the impossible, baling water from the ocean.

            It is true that constructive building among human beings requires an eventually transcending of rage about wrongs, actual and perceived; and mental health requires a great deal of "forgetting and forgiving."  Someone seeking to act as a peacekeeper will tend to take the view that the adversaries "should get over it."  But to demand that is often to demand more than human beings are able to give.  And to say that the feelings may not be expressed is presumptuous almost beyond belief.

            A mentality that is so naive about the complexities of the world that it would attempt that presumptuousness is reminiscent of the mentality that produced the Kellogg-Briand Pact after World War I outlawing aggressive war.  The assumption was that the world had reached a stasis in which all would agree, throughout the world, that existing boundaries and polities were just, to be changed over the millenia only by mutual agreement.  The root of this is arguably an incredible ignorance of the world as it is, and a smug moral self-assurance that admits of no dissent.

            If conflicting human animosities and aspirations constitute, as we may well think they do, a virtual "ocean" from which the prohibition of "hate literature" seeks to eliminate certain selected species of fish, it should be apparent that this inherently invokes double standards; which is to say, "selective enforcement."  That is the stuff from which further injustice, hatred and political-ideological abuse is made. 

5. The "Hate Speech" Category's One-sided Invocation of the Worldview of the Left

            Dr. Timothy Jay, a psychology professor at Massachusetts College, endorses the concept of "hate speech," but tells us this about its origins: "The idea of hate speech has developed since the ‘60s and ‘70s – it's come from the civil rights movement, the women's movement, the gay and lesbian movement –...."[14]  This shows clearly the origin of the idea in the Left, in its various permutations championing a number of "victimized" groups.  Of course, we have seen that the leftist-inspired taboos go somewhat further than Jay's examples may suggest, extending to such things as the study of intelligence and genetics.  The taboo directed against study of the Holocaust cannot itself be said to arise singularly from the Left, because people on both sides come from a wide range of persuasions.

            It was Herbert Marcuse during the 1960s who gave what is perhaps the most extensive rationale for a leftist control over speech. In his essay on "Repressive Tolerance," he argued in direct opposition to John Stuart Mill's concept of an "open marketplace of ideas."  Marcuse said that a democratic society's "tolerance" of competing views simply constitutes a manipulative device by which the masses are lulled to sleep.  He called for a "liberating tolerance" that would encourage all views from the Left and suppress all conservative expression.  "Liberating tolerance," he wrote, "would mean intolerance against movements from the Right, and toleration of movements from the Left" (emphasis added).[15]

            If one considers the typical professional person within what Samuel Francis calls today's "ruling class" (a person who intuitively gives no intimation that he does anything other than agree fully with everything that is "politically correct"), it is doubtful whether that person is specifically conscious of Marcuse's rationale.  But it is the weight of that "ruling class," which lies heavily over all opinion in Europe and America (and peoples of European origin elsewhere) that has become the primary "enforcer" of Marcuse's formula.  We live in a time of very strong taboos.  Virtually no breathing room is given to those who dissent from the prevailing ethos.

            And yet, the "politically correct" perception of things reverses this.  It sees the mainstream middle-class culture as the suffocating element; it isn't non-Left dissenters who are repressed, it is "minorities."  This is the "conventional wisdom" that takes no account of the ideological incubus that today dictates what is and is not acceptable opinion.  In his 1999 article in the William and Mary Bill of Rights Journal, Sionaidh Douglas-Scott exemplified this when he wrote that "Middle America is large and secure, whereas minority groups are small in number, and often vulnerable."  Later in his article, he said that "society must attempt to ensure that its more powerful elements, particularly those with greater access to the media, do not dominate, shout down, or silence weaker but possibly truer voices."[16]  This may be a good prescription in a theory devoid of context, but typically he fails to see who is shouting down whom.

            We should not leave this section – on the leftist bias behind much of the "hate speech" concept – without noticing some illustrations of how the Left allows itself to voice much vituperation, applying a double standard that frowns on some "hate" but relishes the expression of other animosities, however intense.  In the City Journal published by the Manhattan Institute, Brian Anderson has written that "the insults most often come from the left: ‘racist,' ‘homophobe,' ‘sexist.'...It has become a habit of left-liberal political argument to... redefine mainstream conservative arguments as extremism and bigotry."[17]

            Phil Brennan of NewsMax.com cites examples given by CBS newsman Bernard Goldberg in Goldberg's book Bias: A CBS Insider Exposes How the Media Distort the News.  One example tells of "PBS's ultra-left-wing Nina Totenberg's" saying about conservative U.S. Senator Jesse Helms: "[I]f there is retributive justice [Sen. Jesse Helms] will get AIDS from a transfusion, or one of his grandchildren will get it."  Another example quotes "USA Today's Julianne Malveaux's" comment about conservative U.S. Supreme Court justice Clarence Thomas: "I hope his wife feeds him lots of eggs and butter and he dies early like many black men do, of heart disease."  And it was Los Angeles Times contributor Karen Grigsby Bates, Goldberg tells us, who said this about Republican Senate majority leader Trent Lott: "Whenever I hear Trent Lott speak, I immediately think of nooses decorating trees.  Big trees, with black bodies swinging from the business end of nooses."[18]

            These examples are significant because they illustrate the extent to which the "hate speech" concept lends itself to ideological, political double standards.  This destroys its legitimacy as an objective concept. 

6.  Other Conceptual Problems in the "Hate Speech" Idea

            The "hate speech" category is on such shaky ground that it gives rise to a number of other conceptual problems:

            1.  Libertarian author Pierre Lemieux says "Canadians have been hearing more and more calls to use hate laws in linguistic or ethnic politics – for instance, against Mordecai Richler's anti-Quebecer statements."  He points to the "slippery slope" of ever-degrading rights, saying "hate speech" will "soon be extended to cover ‘crimes' its original designers never dreamt of."  He points to the underlying reason it is a slippery slope: "‘Parchment barriers' [such as a constitutional guarantee of free speech] are incapable of stopping the tyrants once public opinion does not believe in individual liberty" (emphasis added).[19]

            2.  Lemieux makes another salient point: Instead of leading to improved civility and respect for each other's rights and dignity, as the "hate speech law" proponents think they will, the prohibitions run afoul of one of the recurrent facts of history, that "censorship... is one of the surest ways to victimization, political confrontation, intolerance, and violence."[20]

            3.  The literature contains many instances of the term "hate speech" being used without any reflection at all.  These authors sense no problem of delineation in a world of intense animosities and no problem of ideological misuse of the concept.  They simply accept the category at face value.

            4.  Sionaidh Douglas-Scott cites the argument that "free speech as a means sometimes must yield when autonomy and respect for personality are supported better by its restriction, as the German judgments illustrate."[21]  But consider this about a taboo against skepticism toward the Holocaust, which is largely what the German judgments have related to: What if the declaring of a certain set of views as sacrosanct is actually shielding, as the skeptics contend, a set of gross exaggerations?  Would that not be, in itself, an almost unspeakable attack on the personality and dignity of millions of people, whom the exaggerations would be declaring utterly befouled?  To know whose "personality and dignity" is impaired requires a judgment about the merits of the argument.  But an objective judgment is made impossible where only one side of the argument is allowed to be heard.

            5.  The literature on "hate speech" is a fertile source of nonsense in a variety of forms.  Consider the statement in one law review article that "freedom of expression enjoys the status of customary international law and is universally protected as such."[22]  One wonders about the naivete of such an observation.  Consider, too, the strangely perverse emphasis by the same author: "Since the September 11 tragedy at the World Trade Center, a new stigma towards ‘potential terrorists' has spread the seed of hate and discrimination towards Middle-East Muslims."[23]  Might we not think that the killing of 3,000 people in multiple terrorist attacks might elicit some comment running in the other direction; i.e., about the "hate" that the terrorists felt toward their victims?  The author's concern is purely selective, taking advantage of the "victimization of minorities" perception of American society. 

7.  The Intellectual Imperatives of an Open Society

            There have been many "closed" or "insular" societies during human history.  Many of these have had much to contribute to the richness of the human experience. We can think, for example, of the values and institutions championed by Samuel Johnson in the eighteenth century when he saw merit in social hierarchy and the prohibition of expression that would subvert the existing order.  He was essentially championing the medieval system that was on its way out.

            The ideal of a free or open society differs markedly from those more "organic" cultures.  To this ideal, individual freedom is central, and this includes scholarly and scientific freedom.  Great dynamism, and the satisfaction of much that is humane, is thought to flow from the openness.  It is from this perspective that scientists will be outraged by the forced imposition of Lysenkoism, even when it appears in a closed society.  Our review of the flaws in the notion of "hate speech" has reflected that point of view.

            At the same time, however, even a free society, as a social order, is based on a number of preconditions and cannot be "existentially open," as much libertarian thought seems to think it can be.  It requires an elaborate foundation of law, morals, acculturations, institutions and values, all directed toward establishing and safeguarding the realm of personal freedom. 

            The result is that there is, even in a free society, a tension between freedom and order, unless perhaps they are rationalized into an overall system that is understood as accommodating both.  This is a very delicate matter, and seems to require more subtlety and conceptual clarity than humanity is wont to give. 

            The United States Supreme Court has been a primary fount of what is called the "maximalist" view of free speech.  One would think that, in light of the analysis made in this article, the author would fully endorse that maximalist position.  The difficulty, however, is that even a free society must protect itself, while simultaneously affirming the fullest possible realm of open expression.  Most recently, the Court has held that any regulation of speech must be "content neutral";[24] and before that, it held that the abstract advocacy of violence and even revolution could not be banned, since such advocacy had not arrived at the point of actual "incitement."[25] 

            I would suggest that such positions are appropriate only to a free society that faces no serious threats to its existence.  When the Yates decision in 1957 held that membership in the the Communist Party could not be made illegal because the Party was engaged only in the abstract advocacy of revolution, it failed entirely to appreciate the context of a nuclear-armed Soviet Union and a worldwide Communist movement.  If there had been a world war, an organization engaged in "abstract advocacy" would have been rapidly available for far more than abstract discourse.  The distance between advocacy and action must be measured with discernment, realistically considering the imperatives of the society.  Under other, more benign, circumstances, "abstract advocacy" may well be protected without danger.  "Content neutrality" likewise ought not to be a timeless absolute, but must be considered in the context of circumstances.

            The difficulty is that anything short of a naive maximalism opens the society up to the sort of charade that Canada is engaged in: a constitutional guarantee of the freedom of speech, but with exceptions that are applied in a way that militates even against serious scholarship.

            The matter is not subject to easy resolution, since a mature and sensible balance seems so elusive.  One thing is sure: an appropriate resolution will not come unless the dross of ideological and conceptual self-deception is cleared away.  That has been an aspiration of this article.  Additionally, there must be a fully-aware appreciation of the value of open discourse and especially of honest scholarship.  We are far removed from such an appreciation in the world today.

Endnotes

    [1]  See, for example, Deborah Lipstadt, Denying the Holocaust (New York: Plume Books, 1994).

    [2]  Prominent among these, from widely varied points of view, are Samuel Walker, Hate Speech: The History of an American Controversy (Univ. of Nebraska Press, 1994); Milton Heumann and Thomas W. Church, ed.s, Hate Speech on Campus (Boston: Northeastern University Press, 1997); Ralph D. Clifford, ed., Cybercrime (Durham: Carolina Academic Press, 2001); Janine S. Hiller and Ronnie Cohen, Internet Law & Policy (Upper Saddle River, N.J.: Prentice Hall, 2002); Sionaidh Douglas-Scott, "The Hatefulness of Protected Speech: A Comparison of European and American Approaches," William & Mary Bill of Rights Journal, February 1999, p. 305; Negin Salimipour, "Notes and Comments: The Challenge of Regulating Hate and Offensive Speech on the Internet," 8 Southwestern Journal of Law and Trade in the Americas 395, 2001/2002; "Religion, Free Expression and 'Hate Speech,'" American Atheist Forum, July 30, 2001 (www.americanatheist.org/forum); "Hate Speech from the Left," Capitalism Magazine, January 26, 2001 (www.capitalismmagazine.com); William Jasper, "Politically Correct Hate Speech," The New American, July 8, 2002 (www.thenewamerican.com); David Goldstone and Betty-Ellen Shave, "Essay: International Dimensions of Crimes in Cyberspace," Fordham International Law Journal, June 1999, p. 1924.

    [3]  Dan Rud and Nick Sexton, "Hate Speech Defined," www.unc.edu/courses/law357c (1999).

    [4]  Interview with Dr. Timothy Jay, "Hate Speech: Words that Hurt," www.safe-learning.com/0101jay.shtml (2000).

    [5]  Sionaidh Douglas-Scott, "The Hatefulness of Protected Speech: A Comparison of the American and European Approaches," William & Mary Bill of Rights Journal, February 1999, p. 333.

    [6]  "Transform Columbus Day," www.transformcolumbusday. org/lettermc1.htm (2001).

    [7]  Samuel Walker, Hate Speech: The History of an American Controversy (Lincoln: University of Nebraska Press, 1994), p. 6.

    [8]  Milton Heumann and Thomas W. Church, Hate Speech on Campus (Boston: Northeastern University Press, 1997), p. 3.

    [9]  Douglas-Scott, "The Hatefulness...," William & Mary Bill of Rights Journal, p. 341.

    [10]  Middle American News, September 2002, p. 11, citing a report from Focus on the Family.

    [11]  The Journal of Historical Review, March/April 1998, p. 14.

    [12]  The Journal of Historical Review, March/April 1999, p. 31.

    [13]  The Journal of Historical Review, September/October 1995, p. 30.

    [14]  An interview with Dr. Timothy Jay, "Hate Speech: Words that Hurt," www.safe-learning.com (2002).

    [15]  Herbert Marcuse, essay entitled "Repressive Tolerance" in A Critique of Pure Tolerance (Boston: Beacon Press), p. 109.

    [16]  Sionaidh Douglas-Scott, "The Hatefulness of Protected Speech: A Comparison of the American and European Approaches," William and Mary Bill of Rights Journal, February 1999, pp. 317, 336.

    [17]  Quoted by Jeff Jacoby in "Hate Speech from the Left," Capitalism Magazine, January 26, 2001.

    [18]  Phil Brennan, "Goldberg Exposes Fellow Liberals' Hate Speech," NewsMax.com, January 3, 2002.

    [19]  Pierre Limieux, "In Defense of Hate Literature (Sort Of)," www.pierrelemieux.org (Fall 1994).

    [20]  Ibid.

    [21]  Sionaidh Douglas-Scott, "The Hatefulness...", p. 338.

    [22]  Negin Salimipour, "Notes and Comments: The Challenge of Regulating Hate and Offensive Speech on the Internet," 8 Southwestern Journal of Law and Trade in the Americas, p. 395, et. seq.

    [23]  Ibid.

    [24]  R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

    [25]  Whitney v. California, 274 U.S. 357 (1927); Yates v. U.S., 254 U.S. 298 (1957); Brandenburg v. Ohio, 395 U.S. 444 (1969).