Recently I saw a debate about hate speech at Cornell between New York law professor (and former ACLU President) Nadine Strossen and NYU law professor Jeremy Waldron. Strossen is opposed to the prohibition of hate speech because it amounts to point of view discrimination which she claimed is acceptable only in an emergency. She also maintained that hate speech statutes have been used to censor the minorities they have been intended to protect.
In her recent book on hate speech, Strossen admits that libel law is an exception to the “emergency” principle. The reason is that libel causes harm and it need not be immediate harm to warrant regulation in a wide variety of circumstances. And that is precisely the point of Jeremy Waldron’s book, The Harm in Hate Speech. He argues that hate speech is a form of group libel that threatens the quality of life, the dignity, and the reputation of minority members. It poisons our culture in that it undermines our commitment to human dignity and to inclusion and respect for vulnerable minorities.
What of Strossen’s claim that hate speech statutes have been disproportionately used to target vulnerable minorities? Waldron denies this, but University of Hawaii law professor Mari Matsuda in a justly famous article in the Michigan Law Review argued that hate speech statutes should specifically protect members of historically persecuted minorities (not majority members) and she artfully discussed how to apply that principle. To my surprise, Waldron thought Matsuda’s proposal would violate principle of equality. But it does not violate equality to protect the group that suffers the harm. To protect those who are not stigmatized in the eyes of society would be an overbroad limitation on speech. In my view, Matsuda got it right.