HATE: Why We Should Resist it with Free Speech, Not Censorship by Nadine Strossen (review)

Hate is trending. The sitting president of the United States regularly mobilizes his political constituency by vilifying Mexican immigrants as “criminals and rapists” who “infest” America, and by promoting a “zero tolerance” policy at the border that punitively separates children from their parents, including persons applying for asylum. There has been a resurgence in white nationalist ideology globally both in mainstream electoral politics and in ugly scenes on the streets of Charlottesville, Dresden, and Warsaw. In the United Kingdom, hate crimes spiked after the Brexit referendum and in the USA, there has been a steady rise in hate crimes against African-Americans, Muslims, immigrants and members of the LGBT community. Given this current paroxysm of populism, isn’t it high time we re-evaluated our commitment to freedom of expression and start contemplating new legislation to regulate discriminatory speech that targets vulnerable minorities?

In HATE: Why We Should Resist it with Free Speech, Not Censorship, Nadine Strossen, former national President of the American Civil Liberties Union (ACLU), offers a resounding defense of free speech and rejects attempts to suppress or ban speech that is constitutionally protected under the First Amendment. Free speech is the lifeblood of democratic deliberation, argues Strossen, and much hate speech in the United States, while offensive, is protected speech and should remain so. Current US law only suppresses speech that intentionally advocates imminent lawless action that is likely to occur, and even then, the regulation of speech must occur in a way that is consistent with the viewpoint (or content) neutrality principle which inhibits the state from disfavoring some opinions simply because they are disagreeable.

Strossen starts with the observation that there is no clear and consistent definition of “hate speech,” which she puts in scare quotations throughout the book. Hate speech is not a term of legal art and it is simply wrong to assert, as some liberal politicians have, that “hate speech is not free speech.” In Strossen’s view, “the terms ‘hate speech’ and ‘hate crimes’ are simply deployed to demonize views people find offensive and to call for punishing a broad swathe of expression, including political discourse that is integral to our democracy.”¹

Reviewing hate speech laws in the US and globally, Strossen concludes that it is simply not possible to draft hate speech laws that are not unduly vague, overbroad and counter-productive.² Germany, France, and other European countries convict hundreds of defendants a year for offences as capacious as “incitement to hatred,” and Strossen documents a number of cases that seem disproportionately chilling of political speech. They include the 2014 arrest of a British politician for publicly reading a Winston Churchill quote from 1899 that denounced the treatment of women in Muslim countries, and the conviction of a Danish man in 2016 who criticized “the ideology of Islam” on Facebook, and posted the statement, “Islam wants to abuse democracy in order to get rid of democracy.”³ She reminds us also of the long and repressive history of government censorship in the United States, including how, in the 1830s, Southern states banned abolitionist speech on the grounds that it had the potential to incite violence and rebellion. She observes that the Republican National Committee and some state legislatures have included the Black Lives Matter movement in resolutions condemning hate speech.

HATE addresses the lively and fairly acrimonious campus hate speech debate currently taking place in the United States, and Strossen counsels faculty and students to confront provocative speakers at universities with “counterspeech” and vigorous opposing arguments, rather than to silence them with heckling and censorious campus hate speech codes.⁴ She points out that all the campus speech codes challenged in the courts by the ACLU have been struck down on First Amendment grounds and recommends that universities permit all speech that the government does not itself censor.⁵ Strossen does not countenance the view that merely being exposed to denigrating speech is in...