Klon Kitchen and Arthur Milkh of the Heritage Foundation, and Paul Coleman of the Alliance Defending Freedom reviewed the threat of hate speech doctrine becoming law in the United States in a panel discussion at the Heritage Foundation on June 21. The threat was indicated to be growing, despite the strong basis of free speech in the Constitution and recent jurisprudence. Also of concern is the dilemma of American conservatives between their commitment to the free speech rights of corporations and institutions that may restrict speech from a leftist perspective, and the free speech ideal of the free exchange of ideas in society.
Milkh first explained the arguments which justify free speech in classical free speech doctrine. These included first “the pursuit of the truth, especially in philosophy and science. Your speech belongs to you because your mind belongs to you.” Secondly, “freedom of speech is absolutely necessary for self-government. You cannot deliberate on the public good without thinking it through, and speaking about it in the public square.” He noted that a particular clause in the Constitution allowed for absolute free speech in both houses of Congress. This, he said, is a “strong proof” of the founders’ intent in promulgating free speech doctrine. Thirdly, free speech “forms character.” It causes people to be “rational as opposed to tyrannical, and assertive, as opposed to slavish.” A good society should have minds open to persuasion. It might be added that the ability to take criticism, to which no one seems naturally inclined, is crucial to civility. This quality, he said, “takes generations” to form. Milkh observed that in some foreign legislative bodies, legislators can come to physical blows, since they do not have a political culture rooted in the free exchange of ideas.
Milkh observed that speech has been banned “everywhere in Europe, and in Canada,” if is it classed as “hate speech.” Hate speech is also being practically banned in American colleges and universities. Ominously, he noted that “prominent Americans are now calling for it.” But “so far, the Supreme Court has restrained this push.” In 2017, the court said in its Matel vs. Tam decision (concerning an Asian band that called itself “The Slants”) that “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” But he pointed out that the court’s decisions often depend on prevailing public opinion. It should be added that prevailing opinion in the law schools and major media, both of which are far to the left of the nation as a whole, are seemingly crucial. This is especially troubling “as a generation of young people are being prepared on our college campuses to think that certain kinds of speech which are offensive should be banned,” so that we have grave cause for concern.
Milkh then reviewed arguments in favor of banning “hate speech.” These are, first, hate speech can result in physical harm. “Depression, high blood pressure, drug abuse, you name it.” It is commonly not explicit statements, but their offensive implication to hearers, or to possible hearers, which is held to be unacceptable. “It’s not what you say, it’s mainly what you may imply.” Secondly, “hate speech excludes people from politics.” It is held that people have to feel “fully welcomed” to participate in politics. Minorities “cannot speak” to majorities “because of a power differential.” The majority will not rationally consider the claims of minorities, but is biased against them. Thirdly, “hate speech harms dignity.” Milkh said that “everybody talks about dignity today, and nobody really knows what it means.” Milkh suggested that dignity is what contemporary academics “use to describe what is permanent in us and what is respectable in us.” But he said this becomes difficult or impossible to determine, since we cannot say “what is the core of our humanness, once you can no longer rely on religion … or on reason.” He quoted philosopher Charles Taylor as saying that “dignity is the potential for forming and defining one’s own identity.” It is claimed that many identities are historically oppressed, and must be given “free reign to create themselves.” Oppressors must “perpetually atone for the sins inherited through your identity.” Oppressed identities not only may but ought to speak against the majority, which is actively oppressing them. The public square must be open to hatreds and accusations against the majority, but not against minorities. “Anger and resentment come to be encouraged and honored” along with a sense of victimhood. No stable society is possible where hate speech doctrine is accepted. It naturally leads to conflict.
Milkh said that crucial to identity politics is the belief that liberation requires general recognition and celebration of one’s identity. People must be respected by their own standards, which are above criticism. “Without the protection from harsh words, you cannot be your authentic self.”
Milkh concluded his description of hate speech doctrine by saying “until now, America’s traditional standard has been toleration. This means that the law should protect all citizens’ rights, but that citizens can disagree with one another” and “would respect one another for disagreeing with one another, rather than seeking to punish them on the basis of disagreement.” But today “nonrecognition of someone else’s identity … is considered violence.” To this, it could be added that the claim of violence shows that no higher standard is acknowledged beyond controlling ideas of oppression and liberation.
Milkh said in under “hate speech” doctrine there is a distinction between free speech and free expression. The former is “rational and political,” whereas expression is a manifestation of “one’s identity.” It is held that free speech can be prohibited while oppressed identities can be free to express themselves. Milkh quoted an important academic as saying that “bigoted factual claims that are fundamentally defamatory are not tolerated.” Such discussions as those about immigration, marriage, and the family must not be allowed in the public square, except to affirm the correct view. Self-created identity narratives cannot be disputed. Behind this viewpoint is a belief that all of history should be regarded as oppression, and oppressed groups must be celebrated. Milkh said that in the end hate speech doctrine comes to the view that it is “human reason which is guilty of causing harm. As such its operations must be thoroughly circumscribed.” Milkh believes that at least some hate speech doctrine advocates are willing to choose “equality” (understood as equal self-respect) rather than political liberty. But in this regard, he said that hate speech doctrine will not “bring about the utopia of equal self-respect, but will push us deeper into the politics of resentment, and the corresponding backlash against it.” For the future of the freedom of speech, it will be crucial, Milkh said, for a majority of Americans to continue to hold to freedom of speech as being immune from claims of oppression.
This writer would observe what has also been noted in recent articles, namely, that the revolutions of the Left (this one cultural) end up destroying what they professed to liberate. The nearly absolute free speech regime in our country is only a twentieth century innovation (although free speech in philosophy and politics is indeed part of classical liberalism). It was accomplished by leftist activists, such as the ACLU, in the interest of ending censorship by social and political conservatives. This resulted in an intense commitment by the ACLU and others on the liberal/left end of the spectrum to free speech which has been quite important in the courts’ steadfast defense of free speech. Thus free speech is one classical liberal, First Amendment freedom which has held firm. But this is changing, as the Left now is seeing the First Amendment as an obstacle to its objectives. Even the ACLU has been had to contend with this, and has allegedly been willing to reconsider its long-held free speech stance, at least to the point of the speech content it is willing to defend. The admonition of many decades that the free exchange of ideas and unbounded cultural expression are part of freedom and must be tolerated regardless of how offensive people find them is now denied if it is leftists who are pained.
We need then to consider the claim against freedom made by suffering. While Milkh rightly observed that enemies of free speech appeal to equality against liberty, they are not really in favor of either. They do not want equality between oppressors and oppressed, any more than they allow liberty for oppressors. It will not likely do enough good in the public war of morality to advance ideals of “freedom” or “equality” against claims of suffering. Rather, we need to point to what the claim of suffering means. It means that people deemed to be oppressed will be miserable unless they get what they want, and anything standing in the way (such as liberty or equality) is immoral. It does raise the question of how they are known to be oppressed, since facts, reason, or any other overarching standard is immoral if it is an obstacle to liberation (i.e., what the Left wants). Christians agree that human reason is unreliable, holding it to be sinful, but still appeal to commonly understood reason in dialogue with unbelievers. But general ideas of justice and reason are no more acceptable to today’s radicals than Christian doctrines of righteousness and sin. To support their claims, leftists not uncommonly appeal to “lived experience.” But this cannot be questioned, only accepted as the undeniable truth. At bottom, it is just “I want my way.”
Of course, as Milkh observed, the moral conflict has been precipitated by the rejection of both religion and reason. Religion tells us what the world is like, who we are, and what we should do. If one finds the various religions unpersuasive or wrong, then reason alone remains. And if that is not trusted, as has happened with postmodernism, there remains only one’s own life. To this, postmodernists would add the general opinion of like-minded people. But the result is a blind conflict of social forces. The claim of the priority of suffering above all else is really a claim to tyranny.
The realization of hate speech doctrine in law and corporate regulation was also discussed at the Heritage presentation, and will be reviewed in a subsequent article.