In a forthcoming book, New York Law School Professor Nadine Strossen returns to a topic she explored 27 years ago in an insightful Duke Law Journal article titled “Regulating Racist Speech on Campus: A Modest Proposal?” This spring, Oxford University Press will publish her latest book: Hate: Why We Should Resist it With Free Speech, Not Censorship. (This book is part of the “Inalienable Rights” Series, of which University of Chicago Law Professor Geoffrey Stone is editor.)
→ Dedication: The book is dedicated to “Norman Dorsen and Aryeh Neier, key leaders of the ACLU during the Skokie controversy, inspiring human rights champions, and revered mentors.”
I read an advance version of the manuscript and will say this: Strossen has accomplished something remarkable in this slim book — she has ventured into a complex and heavily examined field and produced a book that is original, insightful, and clear-headed. My guess: this book will become the go-to work in the field.
Abstract: One of Donald Trump’s signal successes in the 2016 election campaign was his unrelenting attack on ‘political correctness.’ While the phenomenon of political correctness is certainly very polarizing, it is also a capacious and somewhat amorphous concept. At root, though, it centers on speech and expression-the idea that since certain words and arguments are hurtful to those less powerful, they should therefore be viewed with suspicion and even opprobrium.
As the eminent scholar and activist Nadine Strossen shows, this is not a new idea. Long before anyone had heard of political correctness, the term ‘hate speech’ was in broad circulation. Indeed many of the controversies swirling around alleged political correctness are really claims and counterclaims about hate speech. Some say that Black Lives Matter engages in hate speech against cops. Some say evangelicals engage in hate speech against the LGBT community. The list of aggrieved populations is long, which begs a question: when is speech truly ‘hate speech’ or, alternatively, simply a cherished right protected by the Constitution?
In this book Strossen dispels the many misunderstandings that have clouded the perpetual debates about this topic, including the equally erroneous assertions that it is either absolutely unprotected or absolutely protected. She explains the more nuanced approach that U.S. law actually embodies: allowing hateful or discriminatory speech to be outlawed in many situations, including when it directly causes specific imminent serious harm; but not empowering government to punish such speech solely because its message is disfavored, disturbing, or feared to possibly contribute to some harm.
Strossen shows that such principles have been especially important for sheltering dissenting views, minority speakers, and advocates of equal rights causes. Conversely, she shows that the “hate speech” laws in many other countries, including those comparable to the U.S., have punished and chilled vital speech about public issues, leading many human rights activists in those countries and in international agencies to criticize those laws and to advocate the U.S. approach: counterspeech and other non-censorial alternatives, including strong enforcement of anti-discrimination laws. Beyond the constitutional arguments, Strossen makes a compelling, evidence-rich case that the “more speech” approach is more effective than censorship in countering the harms that “hate speech” is feared to cause: discrimination, violence, and psychic injuries.
→ This from Professor Stone’s Introduction: “In this work, Strossen stakes out a bold and important claim about how best to protect both equality and freedom. Anyone who wants to advocate for ‘hate speech’ laws and policies in the future now has the “Devil’s Advocate” right at hand. No one can address this issue in the foreseeable future without taking on this formidable and compelling analysis. It lays the foundation for all debates on this issue for years to come.”
TABLE OF CONTENTS
Chapter 1: Overview
Chapter 2: “Hate Speech” Laws Violate Fundamental Free Speech and Equality Principles
Chapter 3: When “Hate Speech” is Protected and When it is Punishable
Chapter 4: Because of Their Intractable Vagueness and Overbreadth, “Hate Speech” Laws Undermine Free Speech and Equality
Chapter 5: Is it Possible to Draft a “Hate Speech” Law That is Not Unduly Vague or Overbroad?
Chapter 6: Does Constitutionally Protected “Hate Speech” Actually Cause the Feared Harms?
Chapter 7: “Hate Speech” Laws Are at Best Ineffective and at Worst Counterproductive
Chapter 8: Non-Censorial Methods Effectively Curb the Potential Harms of Constitutionally Protected “Hate Speech”
Chapter 9: Conclusion: Looking Back – and Forward
(Read more of Ronald K. L. Collins First Amendment News blog on Concurring Opinions.)