Definition and the American exception
Bob Zadek defines hate speech informally as offensive and abusive speech insulting usually a minority group or smaller segment of society, designed to diminish and demean them. He states that the United States is maybe the only country in the world—certainly the only first-world country—which does not prohibit hate speech as such, while most of Europe, Canada, and most of the free world prohibits it. In the United States, he says, it is permitted under all applicable state and federal laws. Jonathan Rauch on the New Attacks on Free Thought (2015)
Zadek frames the show’s question as whether hate speech is good for America, and asks whether listeners would prefer a society where hate speech was limited or prohibited, or one such as ours where hate speech is permitted and cannot be prevented, at least not by government. He describes the American civic tradition as allowing all thoughts, hateful and not hateful, into the public marketplace for ideas, and argues that the only cure for collective hateful thoughts is to expose them to the public. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch’s argument from minority protection
Jonathan Rauch, identified as a senior fellow at the Brookings Institution and author of The Kindly Inquisitors: The New Attacks on Free Thought, answers Zadek’s question by saying that allowing hate speech is good for America. He describes himself as a gay American born in a country saturated in hatred and hate speech against gay people—some intended as hateful, but most of it well-intentioned—and argues that the way to change a society’s mind is by identifying that hate, confronting the fears that underlie it, and contrasting the truth against it. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch tells his friends in minority communities who support hate speech laws that minorities are in the long term always safer in a society that protects hate speech than in a society that protects us from hate speech, because these protections will be administered by political majorities to their own ends. He notes that in the 1950s the people targeted by speech codes against offensive and hateful speech were gay people, and that in 1953 the US Postmaster General censored the first openly gay intellectual magazine—which, in the issue he censored, was criticizing the Postmaster General’s censorship rules. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch calls the greatest single breakthrough in gay rights history, until gay marriage came along, the 1958 Supreme Court decision, in two sentences, overturning that government censorship and allowing gay people to speak. He adds that when gay people began speaking in the ’50s, it was they who were called hateful, obscene, a threat to children, a threat to society, intolerable, and that those laws are used against minorities again and again. Jonathan Rauch on the New Attacks on Free Thought (2015)
The problem of knowledge
Rauch describes the deep epistemological problem as the problem of knowledge: you never know in advance who is going to turn out to be right and who wrong, and the only way to find out is to hold these views up to the public light. He says that most reputable people in America believed in his lifetime that homosexuality was mental illness—not hate speech by Fred Phelps, the notorious anti-gay campaigner, but mainstream American psychiatry—and that this did tremendous damage to gay people, stigmatizing them and sending them into harsh and ineffective therapy. Jonathan Rauch on the New Attacks on Free Thought (2015)
He cites Alan Turing, the great British computer scientist, who was condemned by law to chemical castration for being gay. Rauch argues that the idea that to be gay was to be sick in a dangerous way was not grounded in any real science but in centuries of hatred of homosexuality, and that the only way to get at it was to expose it. He describes Frank Kameny, who in 1972 got on the podium at the conference of the American Psychiatric Association and denounced those people to their face for genocide, calling it a campaign of extermination against homosexual Americans. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch’s point is that no one would have said in 1960, “Well, this is hate speech, let’s ban it,” because it is what everyone believed. He identifies the real threat not as the stuff the few oddballs and nutcases say that offends us, but the much larger beliefs that turn out to be false, and says we need offensive speech as a way to find the truth and get rid of these bad ideas. Jonathan Rauch on the New Attacks on Free Thought (2015)
Obscenity law and the courts
Zadek asks whether the same reasons for allowing hate speech should apply to obscene speech, given that government is permitted to ban obscenity as having no redeeming social value. Rauch replies that he is not an expert on obscenity law but that his understanding is that it has mostly fallen into desuetude, narrowed by the courts so that obscenity cases are virtually never heard anymore. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch emphasizes that it is not just what is written in the Constitution in the First Amendment but what the courts have to say about it. He tells his libertarian friends who complain about government getting ever bigger and more intrusive that this country has been over more than 200 years steadily more protective of freedom of speech, and offers obscenity law as a good example. He notes that in the 1920s Ulysses by James Joyce was banned from the United States by the government as obscene, something that could be done in the lifetime of some people living today but cannot anymore. Jonathan Rauch on the New Attacks on Free Thought (2015)
Majorities and campus speech
Zadek observes that the limitation on open debate and free speech on college campuses seems to be led more by progressives, and asks what there is about progressive thinking that produces what strikes him as an unprogressive attitude, citing George Will being banned from a college campus recently. Rauch rephrases the question: to him it is not what is it about progressives that lends itself to this desire to regulate speech, but what is it about majorities. He argues that in most societies and cultures where you see a dominant majority with a dominant point of view, that majority will often try to use the instruments of law and culture to repress alternatives, both for political gain and out of a well-intentioned belief that the safety and security of society depend on having these ideas in place. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch says that in American universities at the moment there is a left-of-center consensus, and when you get really broad consensus on issues such as race, gender, and class on a lot of campuses, majorities start to think that no decent person could think differently, and then it is the next logical step to say that anyone who does not think this must be some kind of monster or freak who cannot be allowed. He notes that in cultures around the world where there is no First Amendment, where there is for example a deeply conservative religious consensus, you see blasphemy laws in very common use, usually to oppress dissidents and minorities. He concludes that what is being fought is the natural human tendency for majorities to lash out against those who question their conventional wisdom, and that free speech is minorities’ best friend. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rushdie and the “but”
Zadek notes that Salman Rushdie has been active in what has been going on in France recently, which he calls ground zero for the discussion of hate speech, following the slaughter by terrorists of the editorial board of Charlie Hebdo. In a recorded clip, Rushdie says that the moment somebody says, “Yes, I believe in free speech, but,” he stops listening—“I believe in free speech, but people should behave themselves,” “I believe in free speech, but we shouldn’t upset anybody,” “I believe in free speech, but let’s not go too far.” Rushdie’s point, in the clip, is that the moment you limit free speech, it is not free speech; the point about it is that it is free. Jonathan Rauch on the New Attacks on Free Thought (2015)
Zadek comments that France jails individuals who speak what the French government considers to be hate speech, and that the issue is what the French government considers to be hate speech. He argues that hate speech laws express a profound distrust by the government of the wisdom of the people to sort out the good from the bad, and that they replace our brain with the government’s. Rauch responds that the real goal is not to eliminate hate speech but to eliminate hate, and that while we never eliminate hate, we reduce it by exposing it to the light of truth. He says hate comes from ignorance and fear, and knowledge is the enemy of those things. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch, describing himself as a 54-year-old gay American who grew up in a very different world, says the power of our speech has transformed this country morally from a place of hate to a place of something he would call respect and coming to be, in fact, love. He argues that in the long term hate speech is its own cure, and that if we do not let the process unfold of exposing ignorance and fear and bigotry and hate to criticism, we may suppress some speakers but will make the more marginal ones famous as public martyrs, and will suppress the process that gets rid of the hate. He compares dealing with hatred by regulating hate speech to dealing with global warming by breaking your thermometer. Jonathan Rauch on the New Attacks on Free Thought (2015)
The Colorado Digital Communications Commission bill
In a later episode, Zadek raises a Colorado bill seeking to restrict hate speech, fake news, conspiracy theories and the like, which he says he was not aware of and was rather appalled by, and which he credits Eugene Volokh with bringing to his attention. Volokh describes the bill as remarkable in part because it is introduced by a pretty powerful politician in Colorado, Kerry Donovan, the leader of the Colorado Senate and a candidate for Congress. The bill would create a state Digital Communications Commission that would, among other things, investigate and hold hearings on claims that social media platforms allow people to engage in practices that promote hate speech or disseminate fake news or conspiracy theories. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Volokh explains that according to the bill, if the adjudicator at the hearing—some government official within the commission, not a normal judge or prosecutor or juror, but just some employee of the government—determines the respondent engaged in an unfair or discriminatory digital communication practice, the commission may issue an order requiring them to cease and desist. The respondent would be the platform, so the commission could order Facebook to block users who engage in practices that promote hate speech as the commission defines it. Volokh notes that nothing in the bill would define what constitutes hate speech, fake news, or a conspiracy theory, and calls it in so many ways, both procedural and substantive, a repudiation of the most basic First Amendment principles. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Volokh says he presumes Donovan has talked to lawyers and takes her to mean she wants to change the law, perhaps to bring a test case authorizing officials to order platforms to block supposed hate speech or conspiracy theories. He observes that conspiracy theories are in bad odor because we usually think of some kind of crackpot, but that literally a conspiracy theory is just the theory that there is a conspiracy—often there are none, but sometimes there are—and that nothing in the bill limits it even to false conspiracy theories. Zadek says the bill would capture the Watergate investigation, the Pentagon Papers, and the exposing of the spying practices of the CIA and the NSA, and asks whether it would be limited to information received only by citizens of Colorado. Volokh says he is pretty sure courts would reject it, though he is not positive whether the state legislature will. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Across episodes
The topic is argued in two episodes: the 2015 conversation with Jonathan Rauch, which treats hate speech as a matter of principle, minority protection, and the problem of knowledge, and the 2021 conversation with Eugene Volokh, which shifts to a concrete legislative proposal—the Colorado bill creating a Digital Communications Commission—and its procedural and substantive defects. Rauch’s 2015 argument that hate speech is its own cure and that minorities are safer when it is protected is not revisited in the Volokh excerpt, which addresses instead the mechanics of a state commission empowered to order platforms to block speech it defines. The excerpts show no direct engagement between the two treatments.
What the sources do not cover
The excerpts do not state the outcome of the Colorado bill, whether it was enacted, or how any court ruled on it; Volokh says only that he is pretty sure courts would reject it and is not positive whether the legislature will. They do not give the text or number of the bill, the fate of the 1958 Supreme Court decision beyond its two-sentence result, or the name of the Postmaster General who censored the gay magazine. They do not report the content of the Charlie Hebdo cartoons beyond Rushdie’s description of them as making fun of people, and they do not carry the portion of the 2015 episode following the Rushdie clip beyond the point where the transcript breaks off.