From the New Deal to Obergefell v. Hodges (2015), the Left’s fundamental transformation of America over the past century is astounding. A key to that achievement has been the discipline to hasten beyond recent victories and commence new battles. Today, leftists’ eyes are set on outlawing “hate speech.” In 2018, a New York Times article lamented conservatives’ success in “weaponizing the First Amendment.” “I have come to see,” said a regretful progressive law school professor, “that it’s a mistake to think of free speech as an effective means to accomplish a more just society.” Many conservatives, reluctant to believe what seems unbelievable, do not fully appreciate that the campaign to curtail speech in order to promote social justice is gathering strength and capturing powerful institutions. In the not very distant future, it could succeed.
Every Western European nation and the entire Anglosphere already criminalize hate speech. America is the only holdout. Nevertheless, California, always a leader in the field of misgovernance, has recently expressed interest in doing so. Many of our colleges and universities, of course, already administer Orwellian speech codes. Big Tech, with Twitter, Google, and Facebook leading the way, censors political content for violating stern but hazy standards based on the European model. And the United Nations relentlessly advocates criminalizing words that “dehumanize minority groups and other targeted people.” Without understanding where the desire to censor hate speech comes from, means, or would entail, many Americans are growing comfortable with the idea.
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The motives and theories behind outlawing hate speech are made clearest by the updated version of Richard Delgado and Jean Stefancic’s Must We Defend Nazis?: Why the First Amendment Should Not Protect Hate Speech and White Supremacy, first published in 1997. Delgado and Stefancic, husband-and-wife law professors at the University of Alabama, are leading theorists of the movement to ban hate speech. After decades of advocacy, their effort is beginning to attract political support.
Delgado’s status as an originator of Critical Race Theory makes him already a major voice on the Left. Must We Defend Nazis? states openly what others avoid confessing: the consummation of the civil rights movement, the culmination of a truly “anti-racism” regime, requires outlawing hate speech, which consists of “words that wound” the “equal self-respect” of oppressed or marginalized groups: “blacks, LGBTQ+, Latinos, Muslims, and Jews.”
This definition covers face-to-face insults and incitements to violence, but also “disrespectful speech,” even if indirect and subtle. The “equal personhood” of the marginalized, they contend, depends on outlawing it. Disrespectful speech includes any speech that the marginalized believe demeans them, for a “society that speaks and thinks of minorities derisively is fostering an environment” in which discrimination occurs (emphasis added). Since what counts in part is the “intended effect on the hearer,” society must end up banning political deliberations that conflict with the self-respect of the marginalized; speech that blames any portion of their disadvantages on their own actions and habits; images that fall short of being respectful or celebratory; and even factual claims that contradict marginalized groups’ internal or public narratives.
According to Delgado and Stefancic, hate speech has devastating effects. Exposure to it causes hypertension, high blood pressure, even strokes. It can also lead to psychological harms, “mental illness and psychosomatic disease, including alcoholism…and drug addiction.” This explains why “depression is considerably higher in minority communities than in society as a whole.” It would seem that the more the marginalized are exposed to the oppressor group, the sicker they become. In the coming years, we can expect more social scientists to “demonstrate” such findings, and journalists to propagandize them.
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Ultimately, the marginalized come to define themselves by the oppressors’ discriminatory attitudes. They view themselves as “lazy, ignorant, dirty, and superstitious,” for instance, qualities all falsely ascribed to them. This psychological capitulation breeds defeatism and stifles their efforts to improve their lives. They end up questioning their “self-worth and identity.” In children, but presumably in adults, too, much of “the blame for the formation of these attitudes lies squarely on value-laden words, epithets, and racial names.”
The authors make clear that responsibility for the horrors of hate speech lies with white people, possibly excepting white homosexuals and women. No other oppressor group is ever mentioned. Thus, Delgado and Stefancic do not think hate speech regulations are needed at places without whites, like historically black colleges. Only whites’ speech must be constrained. Whites compel the marginalized to live in a world created by and for whites—a world filled with linguistic concepts, images, and laws that all benefit only whites. For example, whites claim that laws are neutral and fair when, in fact, they “inexorably [produce] results that reflect their interests.” While whites assert that all Americans can speak freely, the power differentials between themselves and the marginalized undermine the possibility of whites hearing and understanding their victims’ pleas. To be white, in this view, is to be a white supremacist, whether consciously or not.
White hate speech today “has replaced formal slavery, Jim Crow laws, female subjugation, and Japanese internment as means to keep subordinate groups in line.” Indeed, there is really only white hate speech. And, of course, whites are immune to the harms of hate speech.
Delgado and Stefancic seem to think that the marginalized are both inferior and superior to their oppressors: inferior because they are almost entirely defined by their oppressors’ discriminatory views, superior because of their moral innocence. Yet the minds of the marginalized, despite being psychologically deformed by hate speech and the self-images forced on to them by their oppressors, somehow possess a true knowledge of justice. Such contradictory arguments exemplify the mind of an ideologue: white discrimination moves the cosmos, is the sole principle of our political arrangements, the sole cause of our social reality, and the sole reason the marginalized are miserable.
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There are three plausible ways to make hate speech less harmful. The marginalized could isolate themselves by constructing a sociopolitical order apart from their oppressors. Society could be compelled to protect the dignity and self-respect of the marginalized by banning harmful speech and thoughts. Or, finally, one could reverse the power relations between oppressors and oppressed.
Delgado and Stefancic favor the latter two. For them, the civil rights movement failed to eliminate discrimination. The laws assumed to be its monuments are in practice no better than smokescreens, driving discrimination deeper below the surface, where it remains in the oppressor’s mind. To actualize a genuinely anti-racist regime requires ridding white minds of their unarticulated discriminatory “feelings, practices, and patterns of behavior.” Since “[t]hought and language are inextricably connected,” laws must focus squarely on speech. Hate speech laws would therefore ensure an atmosphere that celebrates—or is silent about—the marginalized, as opposed to being critical or simply candid.
Activist lawyers can construct the new regime of speech regulation through the creative use of tort law. Delgado and Stefancic think that the necessary elements, including law regarding the intentional infliction of emotional harm and defamation, even if there is no direct victim, are already available. The advantage of tort law is that it punishes not just injury but intent. They want judges to redefine concepts like “justice,” “discrimination,” and “equal protection” in terms of equal self-respect. A new class of judges must “decide whose views count, whose speech is to be taken seriously, whose humanity afforded full respect.” Clearly, in this either-or proposition, judges must choose the marginalized over the oppressor. A tacit legal revolution is necessary because, the authors think, overt actions like national legislation would only fortify white resistance.
Importantly, tort law “has often served as a testing ground for new social sensibilities, which are later incorporated into public law…or criminal statutes.” Though stated only by implication, presumably in order to avoid shocking readers, criminal statutes seem to be the authors’ ultimate goal, because they constantly praise Canadian and European speech laws that criminalize hate speech.
As to what such laws would look like, Delgado and Stefancic offer model speech regulations for universities, which may one day serve as a blueprint for the nation. They reassure readers that these regulations would be “neutral and apply across the board”—that is, they would “not single out particular forms of hateful speech for punishment while leaving others untouched.” Immediately, however, the authors signal to sympathetic readers that in Europe “authorities generally do not apply anti-racism rules against minorities.” Even in America, the “likelihood that officials…would turn hate-speech laws into weapons against minorities [is] remote.”
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Indeed, an overwhelming majority of the documented investigations, arrests, prosecutions, and convictions in England, France, and Germany, countries with some of the harshest hate speech laws, favor the marginalized. The ideology of liberating the marginalized greatly influences the courts and bureaucracies enforcing these laws. Meanwhile, the marginalized and the elites working on their behalf are free to express hate speech toward the oppressor group. A possible example of how oppressors should be addressed is provided by Emory University philosophy professor George Yancy. In a 2015 New York Times article, he blamed white people for perpetuating a racist society by refusing to admit the “racist poison that is inside of [them].” They lie about their “white innocence” to avoid the “weight of responsibility for those who live under the yoke of whiteness, your whiteness.” Such animosity is limitless and unappeasable. For Delgado and Stefancic, Yancy’s harangue would be great speech, not hate speech.
Neutral application of such laws is absurd, given the assumptions that 1) the marginalized have a truer, more just voice that is allegedly struggling for self-respect and dignity, and 2) the only obstacle in their way is the oppressor group, which uses speech only to defend its own interests.
Ultimately, though, hate speech laws are not enough. In a society which continues to think and speak disrespectfully of the marginalized, “even a determined judiciary will not be able to enforce equality and racial justice.” The white-dominated culture must be revamped to ensure positive depictions of marginalized identity groups.
During the civil rights era, minorities were spoken of “respectfully,” the authors claim. The marginalized were portrayed as “unfortunate victims” and “brave warriors.” If it is ever to eradicate racism, society must regain this image, both for the pride of the oppressed and as a form of psychological warfare against the oppressor. The latter must be made to view the marginalized as “decent,” “good,” “nice,” “precious,” and “worthy of respect.” In other words, Delgado and Stefancic are demanding that society mythologize the oppressed to promote their self-respect and purify the oppressor’s minds. These myths would presumably duplicate the authors’ own: the marginalized are, simultaneously, innocent and blameless but also noble and heroic.
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Delgado and Stefancic would presumably place the self-styled narratives currently told by marginalized groups beyond rational scrutiny. For example, it would be impermissible, as a result, to weigh evidence and logic supporting and disputing that all of history is patriarchal oppression designed to subjugate women, or that the United States is founded solely on white supremacy, or that gender is only “assigned” at birth and can be “reassigned” in accordance with one’s authentic will. Speaking factually about affirmative action’s documented disparities is “deplorable,” the authors state, and constitutes hate speech, since it is a form of disrespect.
Because the limits of permissible political speech are not spelled out by the authors, we must speculate. Surely, discussions of group disparities in crime would be off-limits, as would those on welfare reform. So too would defenses of the traditional family, and criticisms of legal or illegal immigration. All these would harm the self-respect of marginalized groups. Despite this, the authors try to reassure us that “when the government regulates hate speech, it enhances and adds to potential social dialogue, rather than subtracts from it.” This, regrettably, is where cutting-edge leftist thinking wants to take our nation. Rather than promote color-blind politics, let alone fellow citizenship, these doctrines will usher in an era of limitless vengeance and the use of the law to persecute a group based on its race.
Some Americans assume that the Supreme Court, any Supreme Court, will thwart efforts to outlaw hate speech. The recent unanimous ruling in Matal v. Tam (2017) held that hate speech is, indeed, protected. Justice Samuel Alito’s opinion quoted from the Supreme Court case Street v. New York (1969): “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”
This offers hope. Nevertheless, it is worth remembering that the courts are swayed by both public opinion and by elite activism. One striking example is the majority opinion in Obergefell, holding that same-sex marriage is a constitutional right—a ruling inconceivable just a generation ago when public opinion was hostile to this idea. America’s formative institutions—the universities, press, and popular culture industry—are already preparing the ground so that, someday, judges will outlaw hate speech, and the public will acquiesce.