[LOW TONE] DENISE CASSARO: OK, good afternoon. I am Denise Cassaro, event liaison. I'm here representing Cornell University. I want to welcome you to this event. On behalf of the university, I wish to remind all participants that Cornell values responsible speech and expression and maintenance of public order. As provided in the campus code of conduct, the speaker has a right to speak without intimidation, and the audience has a right to hear what the speaker has to say.
Audience members who disagree with the speaker may make their views known so long as they do not interfere with the speaker's ability to be heard and the right of others to listen. All participants are cautioned that actions which prevent a speaker's ability to be heard or the right of others to listen are a violation of the code and may be referred to the judicial administrator. Thank you for giving me this opportunity to review this important information. Thank you.
That's sobering. Good afternoon. Thank you.
And for those of you visiting here from elsewhere on campus, and for those of you watching online, welcome to Cornell Law School. My name is Eduardo Penalver, and I'm the Allen R. Tessler Dean of the law school. I'd like to thank you for coming out this afternoon for this second and final event in this year's presidential speaker series on free speech, sponsored jointly by President Martha Pollack and Cornell Law School. This event is also co-sponsored by the law school chapters of the American Constitution Society and the Federalist Society. And I'd like to thank them for their support of this series.
Since her arrival, President Pollack has made the importance of freedom of expression a centerpiece of her vision for Cornell. And the law school has been delighted to coordinate this speaker series with her. Discerning the appropriate boundaries of free speech in a pluralist society is a complex challenge for which there is ample room for reasonable disagreement. The questions become even more difficult when we broaden our focus beyond the use of coercive state power to punish or suppress speech and consider the question of free speech within private communities.
When we think about private universities in particular, the questions are complicated by the multiplicity of goals that pull universities in a variety of directions where, at once, community is dedicated to the production of new knowledge, but also transmitting existing knowledge to a new generation. We're places for vigorous debate. And so we are like the public square. But we are also, for both faculty and staff, workplaces where people earn their daily bread. And we are, for many of our students, places of residence and repose.
Like private clubs, we are selective about our membership and invested in our stature. Some private universities are dedicated to the promulgation of religious doctrine. Some choose to define themselves by reference to specific academic disciplines. To use our own community as an example, Cornell University is dedicated to becoming an institution where any person can find instruction in any study.
How do we foster an educational environment that welcomes students from different racial and economic backgrounds, any person, while at the same time protecting the freedom of expression that is so essential to our fearless pursuit of the truth, any study? These are the sorts of challenging questions that this speaker series was intended to grapple with. And it's no accident that many of the scholars studying these questions reside in law schools, where we spend a great deal of our time thinking about the basic infrastructure of communities, both public and private.
And we're fortunate to have with us, this afternoon, two guests and a terrific moderator who have thought extensively about the freedom of speech and its limits. Professor Nadine Strossen is the John Marshall Harlan II Professor of Law at New York Law School. She graduated Phi Beta Kappa from Harvard College and magna cum laude from Harvard Law School, where she was an editor of the Harvard Law Review.
Before becoming a law professor, she practiced for nine years in Minneapolis and New York City. And throughout her career, Professor Strossen has written, taught, and advocated extensively in the areas of constitutional law and civil liberties. From 1991 until 2008, she served as president of the American Civil Liberties Union. She was the first woman to head the nation's largest and oldest civil liberties organization.
Professor Strossen is currently a member of the ACLU's National Advisory Council, as well as advisory councils of EPIC, the Electronic Privacy Information Center, and FIRE, the Foundation for Individual Rights in Education. In 2017, the American Bar Association presented Professor Strossen with the Margaret Brent Women Lawyers of Achievement Award, which celebrates the accomplishments of women lawyers who have excelled in their field and have paved the way to success for other women lawyers. The National Law Journal has named professor Strossen one of the hundred most influential lawyers in America. And Vanity Fair included her in America's 200 most influential women.
Her most recent book, Hate-- Why We Should Resist It with Free Speech, Not Censorship-- we're going to do that for both-- is being published by Oxford University Press. And in the book, she argues that our political and campus discourses are increasingly filled with charges and countercharges of hate speech, charges that serve primarily to suppress speech whose ideas are viewed as hated and hateful. Speech as divergent and important in our democracy as endorsing a candidate for president, Donald Trump, and advocating for Black Lives Matter, she observes, have been denounced as hate speech.
Because of the vagueness of the term, she argues hate speech provisions are, at best, ineffective and, at worst, counterproductive. They invest the officials charged with enforcing those prohibitions with excessive discretion that is often turned against the politically vulnerable. The best remedy for hate speech, she concludes, is vigorous counter-speech.
Professor Jeremy Waldron is University Professor at New York University School of Law, where he teaches legal and political philosophy. Professor Waldron was born and educated in New Zealand, where he obtained degrees in both philosophy and law at the University of Otago. He was admitted as a barrister and solicitor of the Supreme Court of New Zealand, and then went on to earn his doctorate in legal philosophy at Oxford. Since then, he has taught at Oxford, the University of Edinburgh, Berkeley, Princeton, Columbia, and NYU. Somewhere in there, he found time to be a visiting professor here at Cornell in 1989 to 1990.
Professor Waldron has written and published extensively in jurisprudence and political theory. His books and articles on theories of rights, constitutionalism, the rule of law, democracy, judicial review, property, torture, security, and homelessness are all well-known, as is his work in historical political theory. In April 2011, he was awarded the American Philosophical Society's Phillips Prize for lifetime achievement in jurisprudence.
In his 2012 book, The Harm in Hate Speech, Professor Waldron provides a thoughtful account-- thank you-- of the damage that group libel does to the socially ecology of pluralist societies, a distinctive form of harm that, he argues, undermines the dignity and inclusion of minority groups. He takes on those who argue that the notion of hate speech is hopelessly vague and provocatively asks why it is consistent with freedom of expression to allow lawsuits against someone who falsely accuses an individual of criminal behavior, but not against someone who smears an entire race as comprised of criminals. And both of our speakers will be out in the breakout space outside this room after the talk signing copies of their book.
Finally, our moderator this afternoon is Professor Sherry Colb. Professor Cole earned her bachelors degree from Columbia College, where she was valedictorian, and her JD from Harvard Law School. After law school, she clerked for Judge Wilford Feinberg of the United States Court of Appeals for the Second Circuit, and then went on to clerk for Associate Justice Harry Blackmun on the US Supreme Court.
She was a member of the Rutgers Law School faculty in Newark until she joined the Cornell faculty in 2008. She's also held the position of visiting professor at the University of Pennsylvania and Columbia Law Schools. Her research and teaching interests center on issues of constitutional criminal procedure, animal rights, sexual equality, and evidence. She's a prolific author who's written several books and dozens of articles. Most recently, she co-authored a book about animal rights and abortion rights entitled Beating Hearts-- Abortion and Animal Rights, published in 2016 by Columbia University Press. We don't have a copy of that one to show.
She also composes a bi-weekly column at Verdict.Justia.com as well as regular posts on the blog Dorf on Law. Please join me in welcoming our participants for this afternoon's conversation. And I will now turn over the podium to Professor Colb.
SHERRY COLB: Thank you, Eduardo. So for today's event, here's the plan. I just want to give you the schedule. First thing is I'm going to give each speaker the opportunity to give a sort of opening statement-- it's not a debate. It's just a conversation-- but opening statement in the conversation. And during the opening statement, I'm hoping that I'll hear how each speaker defines hate speech-- because it'll make it easier to follow what the points of agreement and disagreement might be-- how we should approach it, in that person's view, and why that's the best approach.
The speakers are both well aware that First Amendment doctrine leaves little room to regulate hate speech when it's a state actor. And they know, also, that the First Amendment doesn't apply beyond state actors. So it doesn't apply to Cornell Law School, which has been deemed, by courts, to not be a state actor, notwithstanding land grant features and so on. Anyway, so any disagreement between the two, I think, will have to be about what the law should do rather than what it does. Because they pretty much agree on what it does.
After their opening statements, if the first person who speaks wants to respond to the second one's opening statement, that's fine. And then I'll pose a question. It'll just be one question for each speaker. And then the speakers will take questions from the audience. And if you don't have any questions, I've got a whole boatload of them. So don't worry. All right, so let's start.
Professor Strossen, why don't you begin with your opening statement? And then we'll go to you, Jeremy, and go to questions.
NADINE STROSSEN: [INAUDIBLE].
SHERRY COLB: Did you push the thing up?
NADINE STROSSEN: Oh, sorry.
SHERRY COLB: Don't be sorry. It's fine.
NADINE STROSSEN: It's on on.
JEREMY WALDRON: I think it'll-- when--
NADINE STROSSEN: When I start talking-- oh wow, that's magic. How long would you like the opening statement to be?
SHERRY COLB: Probably under an hour.
Between-- I don't know-- five and-- but probably, it can be shorter than that too.
NADINE STROSSEN: I'll aim for short in the hope that we'll have an opportunity to embellish later on. So first of all, I do have to thank everybody who has organized this wonderful event. It's an honor to be sharing the podium again with Jeremy and to have such a wonderful moderator. Jeremy, hats off to you for having the foresight to choose the Cornell colors for your book cover. I mean, what are the chances that would happen?
I'd never even heard of the color carnelian until I looked up the Cornell website. But so starting with the question, "what is hate speech," this is actually something that Jeremy and I agree on. I reread his book coming up here today. And he makes the point, as do I, that it is a term that is bandied about widely and used, basically, to denounce and stigmatize whatever speech the person using the term hates and considers something worthy of suppression.
I think the core way in which most people use it is speech that conveys hateful, or discriminatory, or insensitive ideas on the basis of certain personal characteristics including race, religion, gender, and so forth. It's defined quite differently in the laws in various countries around the world that criminalize some subset of hateful speech. But that is the core way in which it's used in public discourse.
It's really important to stress that it is not a constitutional law term of art for this reason-- that the Supreme Court never has defined and labeled a particular category of speech, based on its content, its viewpoint, or its message, as "hate speech," which is therefore, because of that content, excluded from First Amendment protection. So it's distinguished from obscenity, which is a constitutional law term of art applied to a certain defined subcategory of sexually oriented expression, which the court has-- controversially, I will say-- but has excluded from First Amendment protection.
In my book, I reach two basic conclusions, which I think we lawyers can call independently sufficient bases for supporting the current US law treatment of hate speech. In my book, I use quotation marks throughout to keep reminding people that it's not a term of art. I won't bother you with air quotes all the way through. But please just imagine that I am making those every time I use that term.
So hate speech is-- the current US law treatment of hate speech-- first of all, I want to say one other legal point. Even though hate speech is not excluded from First Amendment protection because of its viewpoint, right-- that's consistent with the cardinal, so-called, viewpoint neutrality principle. For those who have not yet studied the First Amendment, the Supreme Court has said that is the bedrock principle of our First Amendment jurisprudence, that government may never suppress speech just because the community, even the vast majority of the community, dislikes, or even despises, the viewpoint, the message, the idea of the speech.
However, consistent with a principle that I like to call the "emergency principle"-- a reference to Justice Louis Brandeis, who was one of the first to come up with the idea, or to articulate the idea originally in dissent-- if any speech with any message, including hate speech, in a particular context, poses an emergency that can not be averted by any means short of suppressing the speech itself, then it can be punished under existing First Amendment principles. And the sad fact is a lot of hate speech does satisfy the emergency principle. It constitutes either a genuine threat, or targeted harassment, or hostile environment harassment, or an intentional incitement of imminent violence.
And in fact, as I read arguments that are made by various folks to outlaw hate speech in the United States, a lot of the examples they give are already punishable under US law, because they satisfy the emergency principle. So one conclusion in my book is I have a heightened appreciation of US law, which is often described inaccurately in a binary way. Either we hear, including lawyers, who should know better, saying, hate speech is not free speech-- you know, it's automatically unprotected. That's false, as I've explained-- or on the other hand, we hear statements that suggest that hate speech should be absolutely protected, or is absolutely protected. And that's also false. Because in particular contexts-- and most importantly, in the context where it already poses the greatest risk of harm-- it is already appropriately subject to suppression.
And my book explains the important principles, not only of the First Amendment, but also of equality, that undergird that legal approach. I can comment more on those later. But I'll proceed-- because I think my time is wasting-- to the second independently sufficient basis for my conclusion that US law gets it right. And that is, as a matter of policy, pragmatism, strategic concerns, that based on the actual track record of hate speech laws around the world, based on the track record of US law before we started robustly enforcing the viewpoint neutrality principle, as well-intentioned as these laws are to advance the crucially important goals of equality, and dignity, and societal harmony-- and here, Jeremy and I completely agree on what the goals are of those who suppress hate speech. And we also agree that hate speech, in my view, at least potentially causes harm.
But we disagree about what is the effective way to reduce the incidence and potential harmful impact of hate speech. When I look at the laws around the world and the past history in the United States, I see, as many, many critics from many other countries and international organizations have increasingly observed, that the track record is to disproportionately single out speech that represents dissident views, that represents minority speakers, that represents minority groups. And that is not an accident. That is not a coincidence.
After all, these laws are enforced by the government, or by the university if we're talking about a public campus, which is accountable to the majority, not accountable to minority groups. We have so much sad, tragic evidence about systemic structural racism and other forms of discrimination in our society, including in the criminal justice system, including in the civil justice system. We have so much evidence about the implicit unconscious bias to which all of us individuals are susceptible, not surprisingly, given the society and culture in which we live.
So why in the world, given those realities, would we turn over to the powers that be who are representative of and accountable to the majority, the status quo-- why would we give them this inevitably subjective discretionary power to decide what speech is sufficiently hateful and hated that it should be suppressed? It should be no surprise that that power is not used any more than any criminal law is used in a way that is helpful to minority groups and to marginalized groups in our society.
Just one more point, because my book is-- the subtitle is, Why We Should Resist It-- and in other words, hate-- why we should resist hate with free speech, not censorship. And the "what we should do" is at least as important a part of my message as what we should not do. I believe that hate, and discrimination, and division is a very serious problem in our society. I believe all of us conscientious individuals who believe in equal rights for all under law and liberty and justice for all have a moral responsibility to resist hatred and discrimination in every way that we can, including by raising our own voices. And I have a whole chapter that gives a lot of detailed suggestions as to what we can do, and should do, and what our government, and what civil society can and should do that, in my view, is not only more consistent with the First Amendment and equal protection principles, but at least as importantly, will actually, I am convinced, do more to counter the scourge of hatred.
SHERRY COLB: Thank you. Jeremy.
JEREMY WALDRON: Thank you. I think this is on. I, too, want to thank President Pollack, and Dean Penalver, and Sherry for making this occasion possible. Nadine, I've never been on a platform with you, except that I've learned something and found it productive. So it's a real pleasure to be here today. And just listening today, I realized, yet again, how much we agree even in the midst of our disagreement about some of these issues.
So I'm going to follow the same sort of trajectory and talk a little bit about the definition of hate speech at the beginning, which, I agree, is a term that gets bandied around and used in all sorts of ways. I'm going to try and pin it down in a particular way which represents the way it has been used by legislators around the world in designing the kind of legislation that we don't have, but they do, and the way it might be used by college authorities in designing speech codes. Because that's the second thing I want to say something about, which is the specific characteristics of the college setting and the campus setting in relation to hate speech so that we can relate these concerns that Nadine and I both have about society in general to the particularity of the campus context.
So it's tempting to say, as Eduardo said, that hate speech is speech that is hated and speech that is hateful, right-- so speech that's hated by right-minded people, speech that's hateful in the sense of expressing the attitudes of the speaker. Sometimes we use the term "hate speech" in the way that lawyers use the term "hate crime." A hate crime, like a crime of murder or assault can-- a crime like murder or assault can be called a hate crime because of the motivation of it. And it's tempting to think that we would define hate speech in terms of the motivation, in terms of what's expressed.
If you look at the legislation on hate speech that is characteristic of most advanced democracies in the world, they do it the other way around. They talk about speech that is likely to elicit hate, or generate hate, or incite hate, or cause hate. So for example, Eduardo mentioned that I'm a New Zealander. So the New Zealand hate speech legislation says that it shall be unlawful for any person to use, in any place, words which are threatening and abusive or insulting if the person using the words knew or ought to have known that they were words likely to excite hostility against-- excite hostility in the audience-- or bring into contempt any group of persons in New Zealand or who may be coming to New Zealand. It's a lovely phrase for a country of immigration.
But the point is that it's looking for the effect of speech and the impact that it's going to have on the community rather than it just being a cathartic expression of hatred by the person speaking, which already indicates, I think, what the legislative concern is. The legislative concern, in a way, is somebody might be speaking in a way which will poison the environment of the community, maybe generate more intergroup hatred than already exists, maybe exacerbate whatever tensions there are in the community. And the suggestion is that people have a responsibility not to do that.
It does also mean that we don't ask ourselves how hateful the person was who did this. We don't ask ourselves, necessarily, how hated the speech is that is expressed. We ask what it's effects are. And we make a legislative judgment. And despite-- this is one area where we do disagree. Despite Nadine's concerns about majoritarian use of this legislation, I think it's a reasonable task to put before our legislators that they do what they can to prevent the fomenting of intercommunal hostility between social or religious groups.
Because if you move into a situation-- a situation we see sometimes in countries like India, or Nigeria, or maybe, in some moods, Northern Ireland-- where you get large-scale intercommunal hostility, because people have whipped up hatred against other groups and irresponsibly used their speech to incite contempt against other groups, then there might be a sense that that sort of poisoning of the social atmosphere is something that legislators have a responsibility to worry about. So I'm going-- in everything I say in response to your questions, Sherry's questions, Nadine's questions, I'm going to hammer away at this point, that the best understanding of hate speech, the one reflected in most-- not all, but most-- in most actually existing hate speech legislation refers to speech that has a certain effect in terms of hatred rather than speech that has a certain expressive function in terms of hatred.
Now I said I wanted to say just a little bit in these opening remarks, also, about the specificity of the campus setting. Because we are talking about hate speech, free speech. But we are also wanting to focus on the particular movement to develop campus codes, not just campus codes about how visitors should be heard, which we heard at the very beginning today when we were warned against misbehaving in our demeanor as an audience, but also about whether university authorities ought to have a particular concern about free speech and hate speech in this setting.
Much of what Nadine and I talk about in our respective books, much of what we agree about, is the concern that arises in the community in general when, I don't know, neo-Nazis are marching through Skokie, or through Charlottesville, and so on. And everybody has reasonable concerns about that. What difference does it make when we ask about campus? And I think it makes a difference in at least two ways.
One is we have to accept that a campus community is a community of free inquiry. We have to accept that it's a place for speaking. It's a place where professors like me speak and disclose our views to captive audiences in the lecture theaters. But it's a place where students speak in seminars and classrooms. And it's a case where students involved in the political life of the campus speak in pursuit of their own convictions and their own views, and listen, and respond to others, and so on.
So the first thing that's special about a campus is that it seems to be a place where free speech should, in some sense, be privileged. And I accept that. And even just today in the events that preceded this event, I learned a lot from those involved in some hard work on the Cornell campus about the concerns that might reflect that side of the matter.
But there's another side of the matter as well, which is that a campus is a community which faces issues of vulnerability and inclusion. We don't live in a perfect world. We live in a world where, within living memory, university settings-- some university settings-- have been segregated. Within living memory, mobs have screamed ugly epithets at people trying to enter universities to get an education. Within living memory, people have been told that they and their kind are not appropriately bought into college. And these are not aged and encrusted individuals like me who are being told this, but young, vulnerable students in their first and second years, or even in their graduate years or their law school years.
People are sensitive about that. People are worried about that. And again, it would be a abdication of responsibility, it seems to me, for college and university authorities not to take that specific aspect of the campus into consideration as well, particularly with regard to the kind of definition of hate speech that I was giving a moment ago. That is, what the university authorities have to concern themselves with is not just the expression of hateful speech, not just the expression of hated speech, but the expression of speech which is intended to, or could reasonably be expected to, poison the atmosphere on the campus against a particular group, try to convey to the group themselves that they are not wanted, or try to convey to the others surrounding them that it should be made clear to them that they are not wanted.
And just as in the concern that a legislator might have to avoid the growth of social and intercommunal hostility, so I think, on campus, campus administrators might reasonably think that they have to balance their obligations to free speech, which are important-- they have to balance those obligations with this possibility that the environment might be polluted, poisoned in this way that might defeat the claims of inclusion. So I hope we can take this into consideration as we proceed.
NADINE STROSSEN: May I comment.
SHERRY COLB: Yes.
NADINE STROSSEN: Oh sorry, [INAUDIBLE] microphone. This is bringing back a memory, Jeremy, that last time we did this-- no offense, Sherry-- we didn't have a moderator. I'm sure you will add to the discussion. But we could go back and forth for a long time. But just two quick comments-- one point that I think really needs clarification in terms of definition-- I'm glad Jeremy brought it up-- unlike hate speech, hate crimes, sometimes called bias crimes, that is a legal term of art. It does have a specific definition.
And it is attached-- it's a type of law that exists in all but one state in this country, and at the national level, where you take something that is already a crime, right, having absolutely nothing to do with ideas or expression-- let's say an assault or vandalism-- when the reason for selecting the particular victim is discrimination-- let's say vandalism of a house of worship or assault on a racial or sexual orientation minority. The courts have held, and I agree, that society can treat that as a more serious crime because it inflicts greater harm on both the individual victim and on society as a whole.
Now I do have to add here, this makes me not quite as much of a free speech absolutist as some who have opposed the whole idea of hate crimes or bias crimes, saying, well, the evidence that you use to show that there is a hateful or discriminatory motive is inevitably expression or ideas. And so therefore, the added punishment constitutes, in effect, a thought crime. I disagree with that. And if anybody's interested-- but just to let you know, I'm not as absolutely absolute. And I do support that concept. And I think it is one of the countermeasures that I consider to be consistent with First Amendment principles.
Since Jeremy mentioned the example of India as one of the countries that, of course, had a positive motive in enacting hate speech laws to stem intercommunal violence, I just want to note that my book has quite a bit of discussion from observers in India itself, including government and civil society people, who say that, well-intentioned as that law was, it has a negative impact. It actually foments hate rather than reduces it. And one scholar-- Asian scholar-- who teaches in Hong Kong named Cherian George actually wrote a whole book in which he studies India and a number of other countries that have hate speech laws. It's called Hate Spin.
And he coined that term to describe this phenomenon that politicians have a stake in lobbying hate speech charges against other communities, right, whipping up the hatred and the frenzy in order to claim-- to seek redress and prosecution under the law. So he sees the laws, ironically and tragically, as having done more to stir up intercommunal violence than to alleviate it. And again, I think we have to be clear about the intent of the law and its actual impact.
SHERRY COLB: Thank you, both of you. Did you want surrebuttal or any--
JEREMY WALDRON: No, only to say one thing. I think it's certainly worth paying attention to these consequences. But I believe, in the end, it has to be a matter of legislative judgment, yeah? These are hard questions about social consequences. And to have these judgments just made by judges on the basis of some 18th century calligraphy rather than being made by legislators in a way that's responsive to the concerns on-- I agree, on either side, is a problem.
SHERRY COLB: OK, so now I'm going to pose one question for each of our speakers. And then we'll turn it over to you. I mean, they'll answer the questions first. OK, so here's a question for Nadine.
Nadine, in your book, you suggest that even if hate speech codes worked-- which, you're concerned that they don't-- it would be better to address hate speech with social self-help, which would involve the victims of hate speech calling out the abusive words and having friends and classmates condemn the offenders. And if these-- but if these measures worked, then speakers would be chilled from expressing their hate speech. Why aren't you concerned about this chilling effect, which could stifle not only hate speech, but unpopular or dissenting viewpoints as well? If you would protect hate speech to avoid this chilling effect, why is it acceptable when it is a product of social pressure rather than official pressure, which is, itself, ordinarily a product of the majority's will in a democracy as well?
NADINE STROSSEN: That's a very interesting question. And I do draw a complete distinction between official-- that is, through the power of government, through the power of law-- official suppression of speech versus civil society exercising pressure and persuasion to try to persuade somebody not to say certain things, to try to persuade people not to have certain ideas. And you're absolutely right that the bottom-line impact can be the same-- something is not said.
But as I think about it, that's what all of education and all of advocacy-- which we, here, at a law school are engaged in both-- is about, right? We are trying to change people's minds, to enlarge their understanding in the case of education, to disabuse them of certain misconceptions. As advocates, we try to persuade them what is true, right, and just, and to dissuade them from pursuing paths, including through expression, that we believe are inconsistent with our highest ideals of liberty and justice for all.
Now we're-- and let me just add something, an observation by Flemming Rose, a Danish journalist, free speech advocate and practitioner, who has worked and traveled in the United States and in many other countries around the world. And he said, you know, in the United States, you don't have any law against hate speech. But you do have much more social pressure than in other countries. And not only is that, in his view, more consistent with freedom of speech, but he thinks it's actually more effective, that we really are affected by our peers, by our teachers, by our surrounding culture.
And one of the things I learned from writing my book is how much support there is for the United States' approach. I mean, we hear about American exceptionalism. That's not necessarily a bad thing. And I certainly-- if I thought it was the right position, and we were still unpopular and the only ones in the world to have it, I would still defend it.
But I was struck by how many human rights activists and lawyers in so many other countries that do have hate speech laws and international agencies have increasingly been calling for something closer to the American system. Because they think that the effects of counterspeech and of civil society are more powerful in reducing hatred and discrimination. In fact, the European Commission Against Racism and Intolerance-- ECRI is the acronym-- a few years ago, issued a report in which it said counterspeech is "much more effective" than censorship in attacking the root problems of discriminatory attitudes and actions.
Now I think that-- so when people complain about the chilling effect of social pressure-- and critics sometimes use the-- oh, it, to them, is a stigmatizing term of political correctness for self-censorship-- because it's not only trying to persuade other people not to think certain things and not to say certain things. But we also exercise self-censorship or self-restraint. I think that's something that is positive.
We should not suppress an idea merely because we think that idea is going to be offensive to somebody. But in my view, if we can avoid expressing that idea with language that is insensitive, or may appear to be insensitive, we should do that. And I think that there is more to be gained than lost through that kind of voluntary civil society, and individual pressure, and self-pressure to watch what we say to avoid hurting people, but without stifling our ideas.
SHERRY COLB: I don't know if you want to respond or get my question.
JEREMY WALDRON: I'd like to get your question. I do have a [INAUDIBLE].
SHERRY COLB: OK.
JEREMY WALDRON: Well, I mean, I think Nadine is right about the issue of persuasion against coercion, that there is a big difference between them. Although it's worth noticing that our great patron saint on all these matters, John Stuart Mill, was not particularly concerned about the legal sanction against free speech, but about the social sanction, and about the way in which we socially coerce each other into conformity and majoritarian when we treat him as though he were a First Amendment scholar, despite writing in England on the 1860s. But the whole argument is an argument about the dangers of social pressure and social persuasion. I don't think that, in any way, refutes Nadine's point.
And the second point doesn't refute it either, that these are not either-or propositions. Nobody who believes in hate speech legislation thinks that, therefore, we should stop speaking out against speech that's stirring up hatred. They want to do both. Or they want to have the legislation to deal with the most egregious, and the most dangerous, and the most poisonous cases. But they want the legislation to, as it were, help marshal the social reaction. And certainly, many of the countries, all the European countries, Australia, Canada, New Zealand, they all have very, very powerful advocacy organizations of an anti-racist, and anti-homophobic, and anti-Islamophobic sort that complement, rather than substitute for, hate speech. So that was all I wanted to say in response to Nadine.
SHERRY COLB: OK, thank you. So Jeremy, here's my question for you. OK, a number of years ago, an organization called PETA, or People for the Ethical Treatment of Animals, created a poster campaign called Holocaust on your plate. The posters had photographs juxtaposing the confinement of Holocaust victims and piles of their bodies with the confinement of animal agriculture victims and piles of their bodies. The European Court of Human Rights upheld Germany's decision to censor the campaign on the theory that such censorship protected, quote, "the reputation or rights of others."
In your book, you suggest that true hate speech should fall into a category of group libel, and that one sure sign of group libel is a comparison between the group and non-human animals. I regularly compare human animals to non-human animals in my own writing, though not with the same style that PETA has. Was Germany right to censor Holocaust on your plate?
JEREMY WALDRON: Thanks, Sherry. I mean, I wouldn't want for the world to second-guess what Germany does in relation to the sensitivities that surround the Holocaust. They are still coming to terms with this great episode of horrendous criminality in the life of their nation. They have Holocaust denial laws that very few other-- some countries have, but very few. They have some concerns that certain things must not be forgotten. And they have an insistence that, in some sense, the memory of the Holocaust is sacred, or the memory of the horrors, and the memorialization of the victims, and the memorialization that these crimes took place is something that is sacred.
So I would be very, very hesitant to condemn the German reaction to the PETA poster. I understand what the PETA poster is about. If the PETA poster is-- if the views of the animal rights movement, and People for Ethical Treatment of Animals, and other such groups-- if their views are even remotely in the ballpark of the correct-- which, as a carnivore, I rather guiltily acknowledge they are-- then we are faced with something that is akin to a holocaust-- that is, the slaughter and enslavement of large numbers-- and we're talking millions upon millions-- of sentient beings, in some cases intelligent beings.
It's always amazed me-- and this is a complete diversion. It's always amazed me that people who believe strongly in animal rights are willing to indulge the rest of us and treat it just as a matter of taste. I know, Sherry, you have a--
SHERRY COLB: For now.
JEREMY WALDRON: For now, that's right-- as though some of us wanted to be served dinner by slaves. And the abolitionists at the dinner table would say, you want slave or no slave, you know? These are deep concerns, I think. And it's, in some ways, admirable that people are willing to pull their punches a little bit in favor of animal rights. This poster is a kind of in-your-face concern. And I respect that as well. I respect what's being done.
Now on the question of beastialization, when you are attempting to degrade human beings, when you are attempting to libel them, reduce the esteem in which they're held in the audience, you can perhaps-- and we talked about this already-- accuse them, accuse the whole group of criminality. And that's a human trait. But you can go way beyond that.
My views on this matter were formed very strongly by blundering into a courtroom in Oxford in 1979 where a neo-Nazi organizer was being tried under the Race Relations Act for having festooned the streets of a little village near Oxford with posters depicting people of African descent as apes, and gibbons, and chimpanzees, and so on. And I think one can say, without prejudice to the rights of apes, and gibbons, and chimpanzees, that this was seen as, and received as, an intended as a radical degradation of the humans who were being presented in that way. I wish, in a way, that beastialization wasn't a motive of degradation, but it is.
You can beastialize people. You can demonize people. You can infantilize people. There are all these ways of trying to dehumanize people. And although I can understand the concern that advocates for animal rights would have against the automatic equation of any comparison between humans and animals as a degradation, I think the defenders of animal rights, knowing what they know about the existing situation, can also recognize-- also recognize-- the element of degradation involved in these portrayals.
The group libel issue is a very important one. And a lot of good work has been done in European jurisdictions-- used to be done in American jurisdictions-- to use group libel as a motif for understanding hate speech. Because again, hate speech, like any form of defamation, seeks to reduce the reputation of the members of a vulnerable group in the eyes of the general public-- so stirring up hatred against them, stirring up contempt against them, stirring up feelings that these people are not to be trusted, that they are inherently criminal, or bestial, or demonic.
This notion of group libel is extremely interesting one. And I believe very strongly that, just as individual libel, within limits, should be regarded as a exception to free speech protection, so I don't see any particular reason why the libel of a whole group, which is just a large number of individuals, each being, as it were, damned in the eyes of the public by the presentation of some attribute that he or she shares with other members of a group-- by somebody saying all Muslims are terrorists, for example, or all African-Americans are criminals, something like that-- this seems to me to be as much of a libel, as much of a reduction of respect, and dignity, and esteem in the community as individual, by individual libel, would be as well.
But I certainly take on board the unease about the animal example that Sherry has mentioned. Can I say one more thing about Germany in this regard? Because people often get very up in arms about Holocaust denial statutes, which, for the last 50 years or so, in Germany and in Austria, have prohibited publications of the-- of any attempt to deny that the Holocaust happened or that these millions upon millions of Jews and others were slaughtered in this event.
Think of a very brief time when American forces enforced a similar Holocaust denial strategy in the occupation immediately after the liberation of some of the camps. General Eisenhower gave a general order that the citizens of nearby cities were to be marched through the camps, at bayonet point if necessary, so that they would not be in a position to deny what there was to be seen in those camps. But sometimes a question of keeping memory alive can require those extraordinary coercive measures. So people were not invited in with an option, but marched through without the option so they would see the piles of bodies, and so that this would be imprinted on their consciousness. And again, I respect that move on the part of the American generals, just as I respect the Holocaust denial legislation.
SHERRY COLB: Nadine, did you want to respond? And then we'll--
NADINE STROSSEN: Yeah. Since the subject of libel has come up, I have to thank Jeremy for something I learned and knew when I read your book again today, which is that both his book and my book could be called libels, because it literally means "a small book," right? So we're both equally guilty of libel. As a point of personal privilege, and also directly relevant to a number of the comments that Jeremy just made, I do want to talk about the situation of Germany and the Holocaust. Because my father is a Hol-- was a Holocaust survivor. He died in this country, fortunately, having been liberated by the American military.
But he was-- and I can say that I am the daughter of somebody who was enslaved. He was born in Berlin as what the Nuremberg laws defined as a "half-Jew." So he was not sentenced to an extermination camp. But he was sentenced to a forced labor camp, where he worked, toiled as a slave in very dangerous salt mines, which my husband and I visited, in Buchenwald. And he was scheduled to be sterilized literally one day after American military forces liberated him. So I literally owe my life to the American military. And I could not hate Nazism and genocide and feel more strongly about the Holocaust than I do.
So I will associate myself with somebody who had even more direct experience, namely Aryeh Neier, who was the executive director of the ACLU at the time of the famous Skokie case, which I think we haven't yet mentioned. So I will briefly summarize it as-- and it kind of epitomizes the viewpoint neutrality principle of American law. A group of neo-Nazis wanted to demonstrate in Skokie, Illinois-- this was in 1977-- a town that had not only a large Jewish population, but also, many of them were Holocaust survivors.
And that case was a slam-dunk winner in the courts of law all the way up to the US Supreme Court, because it clearly involved the viewpoint neutrality principle. And the ACLU, which, of course, absolutely loathed the viewpoint of the Nazis-- it couldn't be more inconsistent with civil liberties-- was carrying forward on that great maxim attributed to Voltaire, we may detest what you say, but we defend, to the death, your right to say it. Aryeh Neier, himself, was born in pre-Nazi Germany. His entire extended family was murdered by the Nazis. He and his immediate family escaped.
And so people associate him with this enormous stalwart defense of free speech, even for those who advocate Nazi ideas, may be surprised that, in his wonderful book that he wrote about this experience, the Skokie case, called Defending My Enemy-- The Risks of Freedom, he said something that I absolutely agree with. He said, much as I love free speech, I loathe the Nazis even more than I love free speech. So if I believed that censoring them through hate speech laws would have been a way to prevent their rise to power, to prevent the genocide in the Holocaust, I would be all in favor of it.
And I agree with Jeremy that I don't want to be a carpetbagger and tell people in other countries what they should do. But it's very interesting that there are many Germans, lawyers, and journalists, and human rights activists, and others who deeply oppose the hate speech laws, including the Holocaust denial laws. Here in the United States, Noam Chomsky said that he considers the Holocaust denial laws to be a poor way to preserve the memory of the victims of Nazism, namely by propagating one of its centerpieces, which was censorship.
SHERRY COLB: Thank you, Nadine. OK, so audience-- Ste-- or did-- OK.
JEREMY WALDRON: No, we're done.
SHERRY COLB: Steve. Professor Shiffrin. Microphone coming your way.
STEVEN SHIFFRIN: It's on? Is it? OK. It strikes me that the law respects the principle of no-viewpoint discrimination except when it doesn't, so that, with respect to obscenity, we look to see if there is serious literary, artistic, political, or scientific value. That involves viewpoint discrimination. With respect to defamation, defamation has-- you have to look at the viewpoint to determine whether it's defamatory. And when it causes harm, the First Amendment doesn't protect. It's subject to a series of rules. But I agree, the idea of no-viewpoint discrimination is a strong principle. It's just that there are many exceptions.
The question I have for Jeremy goes to the second point that Professor Strossen was making, which is how these laws operate in practice. And I'm not convinced by your-- I'm on your side. But I'm not convinced by your response to this yet. Mary Matsuda, in her famous Michigan article, spoke to the second argument made by Strossen by saying that, historically-- groups that have been historically persecuted and victimized are the ones that should be protected by a hate speech law. And the advantage of that was that if an African-American said white people are racist, white people are honkies, you couldn't go after them, which speaks to the question of the leaders of the society can't be prosecuting the victims of the society.
That could work on a college campus in the United States. But I was thinking, in a place like Northern Ireland, you could hardly say that you'd have a one-way principle. You'd have to say the Protestants can't defame the Catholics. The Catholics can't defame the Cathol-- the Protestants. But the Protestants control Northern Ireland. So the concern that Strossen raised, it seems to me, would apply there. Seems to me it would apply in India and in many other countries.
So I know you don't want to control other Western democracies. But I'm wondering how well this travels to other countries, and what you would recommend for the United States, and what general principles you would apply in other Western democracies.
JEREMY WALDRON: Thank you, Steve. On the quick point that you made at the beginning, I'm inclined to agree with you. And I actually want to take back something that I said in the book. In the book, I acknowledged upfront-- I thought it was a moment of great honesty and insight-- that hate speech laws do involve viewpoint discrimination. But now I want to think that they involve something subtly different from viewpoint discrimination. The laws that I'm talking about are interested in discriminating speech which has certain tendencies, or speech that has certain effects. And of course, it has those effects on account of the viewpoint.
But whether speech stirs up hatred or not, whether the speech incites contempt or not is not a matter just of the viewpoint. It's a matter of the likely effects in society. And so some of the exceptions to viewpoint discrimination that you mentioned have the same shape and require a more subtle view.
Now on the question of how these laws operate, like you, I'd be very nervous about any attempt to confine the benefit of these views to historically disadvantaged groups. I believe, perhaps, for rule of law reasons, or generality reasons, they have to be used across the board to outlaw any egregious attempt to defame or stir up hatred against majority persons or minority persons, against Christians or against Muslims, in the Northern Ireland situation, exactly as you said. So, so far as the formulation of the laws are concerned, I think it's very important to take that view.
You ask, and Nadine asked, about the likely aspects of the exercise of prosecutorial discretion under these laws, that they do tend to be used mainly to vindicate majoritarian concerns. This is something on which we do disagree, because I think that's largely false in at least many of the democracies that we're talking about. Partly, it's false because there are a great many filters on the use of these prosecutions.
So for example, in the British race relations legislation and religious hatred legislation, no prosecution can be brought simply as a result of majoritarian enthusiasm. It has to be endorsed or permitted to go forward by the Attorney General. And the Attorney General exercises a power that's regarded as a neutral, non-political power in giving that consent or withholding that consent from prosecution. And we have to understand that there are good-hearted men and women who will make decisions based primarily on the egregiousness of the case either way, stirring up hatred against members of a minority, stirring up hatred against members of the majority, rather than just making it a reflex of their majoritarian sentiments.
So I don't buy this account that, by and large, in most cases, that hate speech laws have been enforced primarily against members of minorities to protect the reputation or the social standing of members of majorities. It is true that if you enforce hate speech laws against neo-Nazis, you are enforcing them against the minority in this sense, because mercifully, neo-Nazis are relatively few and far between. It is their aim-- it was their aim in Skokie to try to encourage the emergence of more Nazis, to get the honest anti-Semites to come out of the woodwork and be numbered.
It is true that sometimes, hate speech laws will be used by-- will be used to prosecute the members of one minority for attempting to defame the members of another minority. There was-- Nadine drew my attention to the fact that a Illinois ordinance, the one at stake-- and we'll talk about this case later, I hope-- Beauharnais against Illinois, that the same ordinance was used to prosecute Jehovah's Witnesses, I think, for things that they had said about Catholics. So often, the dynamics are minority versus minority, or the dynamics are majority versus minority. And I believe that in most of the countries where these laws exist, there are enough good-hearted public officials to pay-- to ensure that these are not simply used as tools of majoritarian repression.
NADINE STROSSEN: If I could make just a couple of comments, first of all, I want to be very clear that I am not contending that these laws are used primarily to suppress minority voices. So Jeremy, I apologize if I wasn't clear enough about that. I said that they have disproportionately been used toward that effect. And it was precisely the awareness of that inevitable pattern and past pattern that prompted not only Mary Matsuda, but also the other early pioneering advocates of campus hate speech codes to suggest that they-- to recommend that they should only be enforced against those who wield dominant majority power. That was the way Chuck Lawrence phrased it.
And interestingly-- I mean, to me, I understand where they're coming from. I applaud their effort, their recognition of this inevitable danger of disproportionate enforcement. Indeed, Lawrence gave examples from Stanford, where he was teaching, of where he said that existing speech control regulations were being disproportionately enforced against minority students or those advocating on their behalf.
But I think that approach causes more problems than it solves, both with respect to freedom of speech and with respect to equality. And Matsuda, to her credit, has-- spends a huge-- a big percentage of that article giving what she calls are very difficult cases. How could they be resolved under her proposed standard, including when one member of a minority group insults another?
With respect to the-- so let me just give you-- I've got a whole chapter here on how-- so I recommend it-- on how hate speech laws have, in fact, been enforced disproportionately to target dissent and minority groups. And let me read just one example. Because Jeremy alludes to Europe. This is from the 2015 ECRI report-- again, the European Commission Against Racism and Intolerance "concluded that European hate speech prohibitions have been disproportionately or unjustifiably used against those whom they are intended to protect." And that's just one of many examples.
With respect to Jeremy's interesting effort to say that hate speech laws are not viewpoint-based, I applaud your re-examination of something you've said before. And I invite you to re-re-examine. Because it is viewpoint discrimination in so far as Jeremy wants the law to be able-- government to be able to outlaw and punish speech that does not satisfy the strict emergency test, right? If it satisfies that because it poses such an imminent danger of causing specific imminent harm, it can already be punished. So he is embracing a concept that would allow punishment of speech when it has a more indirect, attenuated, speculative possible connection to harm.
And that brings us back to the test that we used to have before the Supreme Court during the Civil Rights Movement-- no coincidence. Because it was the speech of civil rights demonstrators that was seen to pause-- to pose-- a potential danger sometime in the future. The Supreme Court, at that point, jettisoned what it had enforced, the so-called bad tendency test, that the fact that it might, over time, cumulatively add up to something that would cause some danger, some harm. And it was under that bad tendency test that not only was Martin Luther King forced to write his famous letter from the Birmingham jail, right, because speech of civil rights activists was seen as posing a very dangerous bad tendency.
But that's also why advocates of the right to contraception such as Margaret Sanger and Emma Goldman were imprisoned. It's why dissidents of every stripe, including those who have opposed wars throughout our history, have also been imprisoned because of this very loose broad tendency test. Although the government tries to justify the punishment in terms of the potential harm, right-- violence, undermining national security, undermining respect for the law, and so forth. It becomes a way for government to, in effect, punish the viewpoint.
JEREMY WALDRON: May I just respond?
SHERRY COLB: OK, I just want to make sure, at least, we get one more question.
JEREMY WALDRON: No, no, abs--
SHERRY COLB: Go ahead.
JEREMY WALDRON: Well, lots more questions. But I don't think substituting indirect-- concern with indirect harm for a concern with imminent changes a non-content-based discrimination into a content-based discrimination. The mode of causation can't do that alone. It may certainly be used, as Nadine says, as a sort of cover for introducing content-based discriminations.
But if I'm concerned with harm, and the concern is sincere, and it just so happens that I'm concerned with long-term causation, a slow-acting poison being introduced into social relations as opposed to immediate fighting words, these are both ways of responding to speech in terms of its tendency rather than responding to it in terms of its content. Now you may not be satisfied with the second. But that doesn't convert it into a content-based restriction.
SHERRY COLB: OK, Professor Dorf.
MICHAEL DORF: I can shout [INAUDIBLE]. So I have a question for-- oh yes, OK. Can't shout onto the internet. So I've got a two-part question. Part one's for Professor Strossen. Part two is for Professor Waldron.
So you talk a lot about the emergency principle. But many of the well-known exceptions to freedom of speech are not about emergencies at all. My favorite case, for example, is Zacchini against Scripps-Howard. It involves a case-- involves a local broadcast on the news of a human cannonball's performance. This man billed himself as a human cannonball. He charged admission into a tent for people to see him get shot out of a cannon. And the local news put it on the air. And he sued them, saying, hey, you've stolen the value of my performance.
And the Supreme Court agreed with the human cannonball and against the news organization. So that's a kind of commercial exception to the-- to free speech. It's not about an emergency. Defamation, which is the one that Professor Waldron points out, is also not about an emergency, right? Summer Zervos, who is currently suing President Trump for defamation for calling her a liar for reporting on their-- his alleged sexual assault, right, it's not an emergency. And yet we allow that. So my question for you would be, given there are all these non-emergency exceptions, why do you fall back on the emergency example in the case of hate speech?
And putting aside your second point, right, which I think is a fair one-- and I'm going ask Professor Waldron about that in a second-- is there a reason, in principle, why you want to resist group defamation? And if your answer is, well, group defamation is viewpoint-based in a way that ordinary defamation is not, first, I'd fall back on with Professor Shiffrin said. But even if not, imagine a viewpoint-neutral group defamation statute. Would you oppose that in principle? Or would you have to fall back on your second objection?
OK, for Professor Waldron-- so suppose Professor Strossen is right about the second point. I understand you want it to be a matter for legislative judgment. Suppose you're a legislator. If you were persuaded that hate speech laws are either ineffectual, or worse, counterproductive, would you nonetheless vote for them, and on what basis?
NADINE STROSSEN: OK, so I don't want to put too much weight-- and I'm sorry if I overstated it-- on the emergency principle. I'm talking about that specifically in the context of saying when viewpoint can be taken into account because of its potential slow-acting poison. So I'm specifically engaging with that. The examples that you gave involve speech not being punished because of disagreement or disapproval of its viewpoint, right?
And it is, to the contrary, causing specific harm at that moment, namely stealing somebody's property in the case of individual defamation, harming that person's reputation in a way that the law demands be proven through specific economic consequences, right? So it is a justifiable exception that is not in the same ballpark as saying, because we think-- we despise the idea, that alone is enough to suppress it, as happens under hate speech laws.
With respect to group libel, the problem that I have with that is, unlike individual libel, you don't have to show specific, demonstrable, tangible harm to your reputation that has specific, demonstrable consequences, as you have to do when it is a matter of individual libel. Conversely, group defamation is much more akin to an expression of opinion rather than involving a statement of fact, which the Supreme Court has also defined as an essential element of an individual defamation claim, right? It has to be a statement of fact that is false and does specific damage.
And the Supreme Court has said that-- said it more eloquently than I'm going to remember-- but there's no such thing as a false opinion, right, that it can't be proven or disproven one way or another. And we may totally disagree with, you know, obnoxious opinions such-- I think the exam-- I don't even want to repeat them as examples, but saying despicable things about various groups of people. But that is at the core of discussion about matters that are central to public policy, issues about race, issues about gender, issues about religious groups, issues about immigrants. To make a racist statement about a whole group, to make a disparaging statement about a whole group is something that is often, if not always, said in the context of discussing what public policy should be toward those groups.
SHERRY COLB: Thank you, Nadine. Jeremy, would you like to answer?
JEREMY WALDRON: Thanks, Michael. The answer to your question is only ever so slightly complicated. If Nadine persuaded me, and if the people that she cites-- if the accounts were persuasive that these laws either do nothing good or do more harm than good, then of course, as a legislator, I should be inclined to vote against them or to vote for their repeal. And if I were convinced of that in a campus setting, I should not be voting to institute them.
The one qualification-- and it's a slight qualification-- is that not all laws are justified by their immediate consequences. Some laws are justified by their expressive power, and that, as it were, by enacting or upholding a not unreasonable hate speech statute, we express a certain solidarity with regard to those who suffer under that. But that would be something to be weighed on the balance against the counterproductive tendency. So I'm entirely willing to concede that. I don't want to be a sort of hate speech laws come what may person.
Can I just say something about the group libel point? There's a lot in what Nadine says about the different ways in which we prove group libel as opposed to how we prove individual libel. Some libels-- some statements made against people are per se libelous. And you don't necessarily need to prove economic damages. If I say of somebody in a long disquisition that this person is a terrorist or a murderer, you know, you'll only have to say-- you know, the judge will only say, well, sometimes he could be a murderer, and be called a murderer, and not suffer any damage, and so on.
But here's the point. And I think it's worth putting the group libel idea back into circulation if only to rebut it. Because there was a time around the 1950s when people were concerned to approach these matters through the idea of group libel. At Columbia, where Michael and I used to teach together-- at Columbia, in the 1950s, there was an attempt by a clinic to draft a model group libel statute. In the case of Beauharnais against Illinois, which was the last time that the Supreme Court of the United States upheld a hate speech statute, many of the justices did so in terms of the idea of group libel.
And in generally, when minority groups have sought to defend their reputations, and their standing, and their dignity in society, they've often done it through vehicles like the Anti-Defamation League, you know, these-- so it's not entirely out of the question to leave this in play. Although I entirely accept what Nadine says, that we have to look very carefully at how it operates and look very carefully that it's not just a surrogate for a content-based prescription.
SHERRY COLB: Is there time for one more, or no? OK, there was a hand. Rebecca. Oh.
SPEAKER 1: So with regard to group defamation cases, I think we've talked a lot about harms and some sort of practicality issues. But I'm also wondering if there's, potentially, a standing issue as with the specificity of the harm. I'm kind of thinking back to you I'm like Lujan v. Defenders of Wildlife-- or maybe it was "Lu-jin." I actually don't know how to pronounce it. But I think I learned about it in admin. And we talked a little bit about standing.
And the court actually required that the plaintiffs have purchased a ticket to go to-- I think it was Africa to see this species of potentially threatened animal if they wanted to have standing. The suit was over whether these rules that had been passed would affect these animals, and potentially threaten them, make them go extinct. And they said, oh, no, no, no, for you to have standing, you need to have purchased a ticket.
So even in a environmental-type suit, generally, we're more willing to accept wide-reaching but diffuse harms, or potential future harms. Even there, the individual plaintiffs needed to have a set standing. So I'm wondering if there's potentially concern with that as well, with a group-defamation-type claim.
JEREMY WALDRON: It's a very good question. I think, certainly, if it was seen as a civil claim, there would be questions about standing. Whether one had to show that one had an interest over and above any other member of the group would be a matter of doctrine. There is a case from the end of the Civil War when a newspaper report that a particular company, a particular military unit, had been cowards. Even though it was accepted that doesn't necessarily imply that they were 100% cowards, nevertheless, any member of that group could have had standing to pursue that claim.
But mostly, the kind of group libel statutes I'm interested in operate as criminal statutes. Many, many countries have criminal libel statutes so that there are forms of egregious individual defamation that rise to the level of a criminal offense and not just a civil offense. And if it rises to the level of criminal offense, then the action can be brought by regular prosecutors rather than by any particular member of the relevant group.
NADINE STROSSEN: I would just like to add two special concerns-- well, one general and one special concern-- about the unintended adverse consequences of a group libel approach, even putting aside the principled arguments. So the general one is it is such a tool that can be used against minority speakers. And the Supreme Court decision was five to four. It was a point that was stressed by all the separate dissents. Justice Black said, for any minority who considers this is a victory-- and he called it a-- it's a Pyrrhic victory, "another other such victory and I am undone." Justice Douglas, a great champion of civil rights, gave many examples of where the statute could be used against critics of discrimination.
And as I think about it, I'm thinking of one-- an analogous situation that happened under France's very strict anti-hate speech law just a couple of years ago. The head of a Parisian gay rights organization was criminally convicted under France's hate speech law. Fortunately, she didn't receive a prison sentence, but a very steep fine, for calling-- it was sort of like more individual libel now that I think about it. Well, she was probably describing the group as well. So she used the term "homophobe" to describe both the leader of an anti-gay organization, a so-called "traditional family" organization, and to describe that organization. So "homophobe" obviously was considered to be a defamatory slur, earning this very strong fine.
The other terrible consequence of either a criminal prosecution or a civil lawsuit is in order to prove that it's libelous, you have to show that it's false. So you're just giving a platform to the hatemongers to trot out whatever evidence they assert they have, and to substantiate their discriminatory views. You're playing into the strategy that hatemongers have always used, starting with the-- including the Nazis in Germany and in this country.
They love the opportunity to go before the world, spewing their venom, and then claiming the role of being a persecuted martyr under the laws. It worked for the Nazis, by the way, who were repeatedly prosecuted in Weimar, Germany under the existing hate speech laws at the time.
SHERRY COLB: Well, thank you both so much. This has been fascinating. And thank you all for attending. And I thank you.
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Does our constitutional guarantee of freedom of speech go too far? In an era when hateful messages demeaning entire ethnic or religious groups go viral, when hate groups have become more numerous, students and faculty on some campuses are advocating “hate speech codes” to punish those who express hate. Attempts to impose such codes, however, run up against not only legal barriers but the difficulty of clearly defining hate speech.
Two scholars bring different points of view to a dialogue on this polarizing topic: Jeremy Waldron (NYU School of Law), author of The Harm of Hate Speech; and Nadine Strossen (New York Law School), former president of the American Civil Liberties Union and author of the forthcoming Hate: Why We Should Resist It with Free Speech, Not Censorship.
This event is sponsored by the Office of the President and supported by the Law School.