Millian principles, freedom of expression, and hate speech

Legal Theory

Volumn 7, Issue 2, 2001, Pages 119-157

  Brink, David O ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84937332756     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325201072019     Document Type: Article

References (52)

1. Unless otherwise noted, references are to chapters and paragraphs in ON LIBERTY [OL] (E. Rapaport ed., Indianapolis: Hackett, 1978). I refer by chapter and paragraph to UTILITARIANISM [U] (G. Sher ed., Indianapolis: Hackett, 1979) and by both chapter and page number to Considerations on Representative Government [CRG] and The Subjection of Women [SW], both reprinted in THREE ESSAYS (Richard Wollheim ed., New York: Oxford University Press, 1975). Other references are to natural divisions in the text (if any) and page numbers in the editions in the COLLECTED WORKS OF JOHN STUART MILL (Toronto: University of Toronto Press). I will refer by book, chapter, and section and page number to Principles of Political Economy [PPE], COLLECTED WORKS, vols. ii-iii, and A System of Logic [SL], COLLECTED WORKS, vols. vii-viii.
2. Elsewhere I have explored this interpretive claim and its significance for understanding Mill's utilitarianism and the prospects for reconciling his utilitarianism and his recognition of rights to fundamental liberties; see David O. Brink, Mill's Deliberative Utilitarianism, 21 PHIL. & PUB. AFF. 67-103 (1992). My discussion of Millian principles here prescinds, so far as possible, from his specifically utilitarian commitments.
3. For a useful discussion, within a largely Millian perspective, of the difference between harm and offense, see JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW, vol. 1, HARM TO OTHERS 31-36, 45-51 (New York: Oxford University Press, 1984).
4. Mill seems not especially concerned with a kind of censorship that often concerns us, namely, censorship whose aim is to suppress true, rather than false, beliefs thought by censors to be especially dangerous, such as certain kinds of classified information. Presumably, he could and would claim that such censorship is permissible just in case it satisfies the harm principle.
5. U.S. 616 (1919) (upholding the conviction of a wartime pamphleteer on behalf of the Russian revolution under the Espionage Act of 1917).
6. Cf. Alvin Goldman, Epistemic Paternalism: Communication Control in Law and Society, 88 J. PHIL. 113-131 (1991).
7. A deliberative conception is reflected in claims Mill makes elsewhere. In Considerations on Representative Government he claims that a principal aim of government is the improvement of its citizens, conceived as the development of their intellectual, deliberative, and moral capacities (CRG: esp. chs. ii-iii). In The Subjection of Women he explains the unhappiness for women in their subjection in terms of the way sexist institutions and attitudes prevent them from developing their rational and deliberative powers (SW: iv 542-8). In various places Mill also expresses reservations about charities that encourage dependence of the beneficiary on her benefactor and so undermine the beneficiary's self-development and self-respect (SW: iv 532; PPE: V.xi.13 960-962).
8. Cf. T.M. Scanlon, A Theory of Freedom of Expression, 1 PHIL. & PUB. AFF. 204-26 (1972) and C.L. TEN, MILL ON LIBERTY 126-28 (New York: Oxford University Press, 1980).
9. Cf. Gerald Dworkin, Is More Choice Better than Less? in THE THEORY AND PRACTICE OF AUTONOMY (New York: Cambridge University Press, 1988).
10. The value of deliberative capacities, within Mill's brand of perfectionism, certainly provides the basis for criticizing some lives as shallow and undemanding, even when these lives are contented and successful in their own terms. But because capacities for practical deliberation can be realized and expressed equally or incomparably well in many different kinds of lifestyles, Mill can and does recognize very diverse kinds of valuable lives. We might say that Mill's brand of perfectionism respects moderate pluralism about the good, even though it rejects content-neutrality about the good. See Brink, Mill's Deliberative Utilitarianism, 79-80.
11. Indeed, Mill suggests that where insufficient diversity of opinion exists naturally, it is essential to take various steps to increase such diversity (ii 23). His defense of proportional representation (CRG: vii 260-62) and state support for the arts (PPE: V.xi.15 968-70) should be seen as institutional mechanisms designed to increase the diversity of activities and voices so as to enhance public and private deliberation. Moreover, we can see how such Millian arguments might support adoption of a fairness in broadcasting doctrine that required media to devote broadcast time to political and educational issues and to allocate time to represent diverse viewpoints on the subjects covered; cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (upholding the FCC's fairness doctrine and, in particular, the personal attack rule against First Amendment challenge).
12. U.S. 568 (1942) (upholding a state prohibition on the use of offensive language in face-to-face exchanges in public spaces) at 571-572.
13. See RESTATEMENT (SECOND) OF TORTS §§ 558, 559, 568 (1977). Actually, this is an account of the libel of a public figure. See RESTATEMENT § 580A and New York Times v. Sullivan, 376 U.S. 254 (1964) (preventing a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he can prove that the statement was made with malice-that is, with knowledge that it was false or with reckless disregard to its truth). It is somewhat easier to establish libel in cases in which the speech concerns private persons; whereas a private individual need only establish negligence on the speaker's part, a public figure must establish at least reckless disregard. See RESTATEMENT § 580B.
14. See, e.g, Gooding v. Wilson, 405 U.S. 518 (1972) (overturning convictions under a Georgia law that prohibited speech directed at another that employs abusive language “tending to cause a breach of the peace” on the ground that as interpreted by state courts it was not in fact restricted, as in Chaplinsky, to speech that tends to incite an immediate breach of the peace).
15. As reported in Positive Measures Designed to Eradicate All Incitement to, or Acts of, Racial Discrimination: Report of the U.N. Committee on the Elimination of Racial Discrimination, U.N. GAOR, 27th Sess., U.N. Doc. A/CONF.119/10 (1986).
16. As reported in Positive Measures Designed to Eradicate All Incitement to.; cf. David Kretzmer, Freedom of Speech and Racism, 8 CARDOZO L. REV. 445-513 (1987).
17. See, e.g., Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993) (upholding conviction under Wisconsin's hate-crime penalty enhancement statute on the ground that the statue concerns conduct unprotected by the First Amendment).
18. See James B. Jacobs and Kimberly Potter, Hate Crimes: A Critical Perspective, in CRIME AND JUSTICE: AREVIEW OF RESEARCH, vol. 22 (M. Tonry ed., Chicago: University of Chicago Press, 1997).
19. These and other incidents involving racist speech are described, and attributed to various sources, in Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, DUKE L. J. 431-83 (1990), reprinted in WORDS THAT WOUND,. (M. Matsuda et. al. eds., Boulder: Westview Press, 1993).
20. See Gregory Herek, Documenting Prejudice Against Lesbians and Gay Men on Campus: The Yale Sexual Orientation Survey, 25 J. HOMOSEXUALITY 15-30 (1993). 29. See, e.g., Kevin Berrill, Antigay Violence and Victimization in the United States: An Overview, in HATE CRIMES: CONFRONTING VIOLENCE AGAINST LESBIANS AND GAY MEN (Newbury Park, CA: Sage Publications, 1992); Antony D'Augelli, Lesbian and Gay Male Undergraduates’ Experiences of Harassment and Fear on Campus, 7 J. INTERPERSONAL VIOLENCE 383-95 (1992); Arnold Barnes and Paul Ephross, The Impact of Hate Violence on Victims: Emotional and Behavioral Responses to Attacks, 39 SOC. WORK 247-51 (1994); Herek, Documenting Prejudice Against Lesbian and Gay Men on Campus; Gregory Herek et al., Hate Crime Victimization Among Lesbian, Gay, and Bisexual Adults: Prevalence, Psychological Correlates, and Methodological Issues, 12 J. INTERPERSONAL VIOLENCE 195-215 (1997); and Janet Swim, Laurie Cohen, and Lauri Hyers, Experiencing Everyday Prejudice and Discrimination, in PREJUDICE: THE TARGET'S PERSPECTIVE, (J. Swim and C. Stangor eds., San Diego: Academic Press, 1998).
21. The Stanford provision is reproduced, among other places, in Thomas Grey, Civil Rights vs. Civil Liberties: The Case of Discriminatory Verbal Harassment, 8 SOC. PHIL. & POL'Y 106-107 (1991). As I explain in Section X, the Stanford provision has been struck down by a state court.
22. Cf. “Contrast the following two statements addressed to a black freshman at Stanford: (A) LeVon, if you find yourself struggling in your classes here, you should realize it isn't your fault. It's simply that you're the beneficiary of a disruptive policy of affirmative action that places underqualified, underprepared and often undertalented black students in demanding educational environments like this one. The policy's egalitarian aims may be well-intentioned, but given the fact that aptitude tests place African Americans almost a full standard deviation below the mean, even controlling for socioeconomic disparities, they are also profoundly misguided. The truth is, you probably don't belong here, and your college experience will be a long downhill slide. (B) Out of my face, jungle bunny.” Henry Louis Gates, Jr. Let Them Talk, NEW REPUBLIC Sept. 20 and 27, 1993, at 45. The Stanford provision prohibits (B), not (A).
23. See Grey, Civil Rights vs. Civil Liberties, 94-95.
24. See Chaplinsky, at 573, endorsing the state court interpretation of the test of offensiveness in terms of the reaction of “men of common intelligence,” rather than the reaction of the actual audience. Concern with the immediate effects on a reasonable person reduces worries that the provision gives the thin-skinned a veto on speech, akin to an unacceptable “heckler's veto” on speech.
25. For instance, Robert Post rests his skepticism about hate speech regulation on a commitment to deliberative values associated with democratic self-governance. See Robert Post, Free Speech and Religious, Racial, and Sexual Harassment: Racist Speech, Democracy, and the First Amendment, 32 WM. &MARY L. REV. 267-327 (1991).
26. U.S. 397 (1989) (invalidating a statute prohibiting flag desecration statute as applied to someone who burned the American flag as an expression of political protest) at 414.
27. This is why the very sweeping prohibition on discriminatory speech contained in Article 4 of the U.N. Convention on the Elimination of All Forms of Racial Discrimination seems over-broad. It is significant that some countries, such as Great Britain and Germany, that have sought to comply in some way with Article 4 have rejected the Article 4 prohibition as too broad and have instead endorsed narrower regulations targeting some form of hate speech. See Positive Measures Designed to Eradicate Racial Discrimination, at 23-25.
28. In Section X, I discuss the related question, raised in R.A.V. v. St. Paul, 505 U.S. 377 (1992), of whether and, if so, under what conditions it is permissible to regulate a subclass of speech (e.g., hate speech) that is part of a broader class of problematic speech (e.g., discriminatory speech or fighting words).
29. Lawrence, If He Hollers Let Him Go, at 68.
30. See, e.g., Kent Greenwalt, Reflections on Justifications for Defining Crimes by the Category of Victim, ANN. SURV. AM. L. 617-28 (1992-93); Herek et al., Hate Crime Victimization Among Lesbian, Gay, and Bisexual Adults (finding that the psychological consequences of victimization are greater for targets of bias crimes than they are for the targets of comparable non-bias crimes); and Craig, Retaliation, Fear, or Rage (finding that African-American targets were more likely to express a desire for revenge in bias crimes than in comparable non-bias crimes).
31. See, e.g., Barnes and Ephross, The Impact of Hate Violence on Victims; Herek et al, Hate Crime Victimization Among Lesbian, Gay, and Bisexual Adults; Swim, Cohen, and Hyers, Experiencing Everyday Prejudice and Discrimination. Several studies suggest that discriminatory attitudes within a domain often lead targets to disengage from that domain as a means of preserving self-esteem. See, e.g., Claude Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 AM. PSYCHOLOGIST 613-29 (1997); Claude Steele and Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J, PERSONALITY & SOC. PSYCHOLOGY 797-811 (1995); Joshua Aronson, Diane Quinn, and Stephen Spencer, Stereotype Threat and the Academic Underperformance of Minorities and Women, in PREJUDICE: THE TARGET'S PERSPECTIVE; Kevin Allison, Stress and Oppressed Social Category Membership, in PREJUDICE: THE TARGET'S PERSPECTIVE; Brenda Major and Toni Schmader, Coping with Stigma Through Psychological Disengagement, in PREJUDICE: THE Target'S PERSPECTIVE; and Nyla Branscombe and Naomi Ellemers, Coping with Group-Based Discrimination: Individualistic Versus Group-Based Strategies, in PREJUDICE: THE Target'S PERSPECTIVE.
32. See Jeff Greenburg and Tom Pyszczynski, The Effect of an Overheard Ethnic Slur on Evaluations of Target: How to Spread a Social Disease, 21 J. EXPERIMENTAL SOC. PSYCHOLOGY 61-72 (1985), and Jeff Greenburg, S.L. Kirkland, and TomPyszczynski, Some Theoretical Notions and Preliminary Research Concerning Derogatory Ethnic Labels, in DISCOURSE AND DISCRIMINATION, (G. Smitherman-Donaldson and T. van Dijk eds., Detroit: Wayne State University Press, 1988).
33. Catherine MacKinnon and others have suggested that pornography silences women because it creates conditions that make it impossible for women to perform certain kinds of speech acts (e.g. to performa speech act signifying refusal to consent to sex) and that, as a result,women have First Amendment claims against pornographers. See CATHERINE MacKINNON, ONLY WORDS (Cambridge: Harvard University Press, 1993); cf. Rae Langton, Speech Acts and Unspeakable Acts, 22 PHIL. & PUB. AFF. 293-330 (1993). In claiming that hate speech can and does silence its victims, I amnot claiming that hate speechmakes counter-speech by its victims impossible or that it gives the victims of hate speech a First Amendment claim against hate speakers. These claims about silencing do not strike me as very plausible as applied either to pornography or to hate speech. Rather,my claim is theMillian one that hate speech, especially when directed by amember of a dominant group against amember of a historically marginalized group, tends to provoke immediate responses that are inarticulate and tends to stifle the expression of marginalized points of view or prevent themfrom receiving a fair hearing. If this is so, it's not that the victims of hate speech have a First Amendment claim against hate speakers (a claim that would seemto run afoul of the familiar observation that the First Amendment protects the speech of individuals against state, rather than private, action). It's rather that hate speech retards the very deliberative values that explain why content-specific censorship is normally impermissible; if this is the case, then hate speech regulation is a well-motivated exception to the usual prohibition on content-specific censorship.
34. The claim that hate speakers, as well as hate listeners, pay a deliberative cost for hate speech is like Mill's claim that exploiters and oppressors are themselves harmed by exploitative relationships, because such relationships are inconsistent with beneficial personal and social interaction (SW: iv 522-5, 541).
35. In several places, Ronald Dworkin appeals to the principle that offense and disgust are insufficient grounds for restricting speech in order to condemn hate speech regulation and the regulation of pornography. See RONALD DWORKIN, FREEDOM'S LAW 204-205, 218-19, and 237-38 (Cambridge: Harvard University Press, 1996). If Dworkin thinks this principle undermines narrowly crafted hate speech regulations, such as the Stanford provision, as some of his remarks suggest, then I think he mistakes harm for offense. However, at one point, Dworkin does suggest that a narrowly crafted hate speech regulation, along the lines of the Stanford provision, would regulate speech outside the scope of protected freedoms; see Freedom'S LAW, at 255-56.
36. AMERICAN PSYCHOLOGICAL ASSOCIATION, FINAL REPORT OF THE TASK FORCE ON THE VICTIMS OF CRIME AND VIOLENCE 25 (Washington, D.C.: American Psychological Association, 1984). See also Jacobs and Potter, Hate Crimes, at 31.
37. See, e.g., Barnes and Ephross, The Impact of Hate Violence on Victims, and Herek et al., Hate Crime Victimization Among Lesbian, Gay, and Bisexual Adults. 55. See, e.g., Greenwalt, Reflections on Justifications for Defining Crimes by the Category of Victim, and Herek et al., Hate Crime Victimization Among Lesbian, Gay, and Bisexual Adults; contrast Barnes and Ephross, The Impact of Hate Violence on Victims.
38. See, e.g., AMERICAN PSYCHOLOGICAL ASSOCIATION, TASK FORCE ON THE VICTIMS OF CRIME AND VIOLENCE, at 25-27; Barnes and Ephross, The Impact of Hate Violence on Victims; and Swim, Cohen, and Hyers, Experiencing Everyday Prejudice and Discrimination.”
39. See also Frederick Schauer, The Phenomenology of Speech and Harm, 103 ETHICS 635-53 (1993), and Susan Brison, Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence, 4 LEGAL THEORY 39-61 (1998). Contrast Larry Alexander, Banning Hate Speech and the Sticks and Stones Defense, 13 CONST. COMMENTARY 71-100 (1996).
40. Cf. Richard Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets, and Name Calling, reprinted in WORDS THAT WOUND, (Matsuda et al. eds.); and Michael Steenson, Civil Actions for Emotional Distress and R.A.V. v. City of St. Paul, 18WM. MITCHELL L. REV. 983-99 (1992). Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (preventing recovery by a public figure for the tort of intentional infliction of emotional distress for publications of the sort at issue without showing that the publication contained false statements of fact that were made with knowledge that the statements were false or in reckless disregard of their truth) is compatible with this argument. Hustler's focus was on public figures, whereas there is no such focus in the hate speech provisions. Moreover, the hate speech provisions in question involve an unprotected class of speech, namely, fighting words; it is not clear that the parody at issue in Hustler involved fighting words.
41. See the useful discussion in Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. REV. 1321-57 (1992).
42. Cf. Strossen, Regulating Racist Speech on College Campus, at 512-13, 515, 526-30, 536-37, 556-58.
43. Cf. Irwin v. Gavit, 268 U.S. 161 (1925) at 168; and Frederick Schauer, Slippery Slopes, 99 HARV. L. REV. 361-83 (1985).
44. Corry v. Stanford University, No. 740309 (Cal. Sup., Santa Clara Cty., Feb., 27, 1995).
45. For a useful discussion of the background to the Stanford provision and criticism of the state court decision, see Thomas Grey, How to Write a Speech Code Without Really Trying: Reflections on the Stanford Experience, 29 U.C. DAVIS L. REV. 891-956 (1996).
46. Minn. Legis. Code (1990) § 292.02.
47. In re Welfare of R.A.V., 464 N.W. 2d 507 (Minn. 1991).
48. Lochner v. New York, 198 U.S. 45 (1905) (invalidating a New York statute regulating the maximum number of hours that bakery employees could work as a violation of liberty of contract protected by the due process clause of the Fourteenth Amendment).
49. Nebbia v. New York, 291 U.S. 502 (1934) (upholding price control regulations in the milk industry as consistent with the rational basis review required by due process).
50. Compare Ohralik v. Ohio State Bar, 436 U.S. 447 (1978) (upholding a disciplinary rule prohibiting lawyers from accepting employment as the result of offering unsolicited legal advice) with Edenfield v. Fane, 507 U.S. 761 (1993) (invalidating a state provision prohibiting CPAs from uninvited professional solicitations).
51. R.A.V. at 395-96.
52. See Strossen, Regulating Racist Speech on College Campus, at 515.