Leiter comments that
We may summarize the argument for Waldron’s titular view as follows. First, the “harm in hate speech” results primarily from speech that is written rather than spoken. Second, the harm in question is damage to the “dignity” of vulnerable people based on defamation related to certain characteristics they share with a group, such that they are then deprived of the “assurance…that they can count on being treated justly” in daily life because they are deemed to be “not worthy of equal citizenship”. Third, this harm to “the dignitary order of society” is distinct from the individual offense hateful speech may cause, the latter not constituting a ground for regulation on Waldron’s view. Fourth, although regulating to prevent this harm may have some costs, the benefits justify the normal practice in democratic societies of regulating such speech.
I argue two main points: first, that Waldron's distinction between harm to dignity versus offense is neither stable nor clear; and second, that Waldron's failure to explain why harm to the dignitary order of society is the particular harm of speech that warrants legal redress raises a variety of questions about his view. If the moral urgency animating Waldron's case is the need to protect the vulnerable from harm, why limit that to the harm of losing assurance of "equal standing" or (as he sometimes says) the psychological harm of "distress"?
Consider, for example, what I call "the Ryan case: a powerful congressman, Paul Ryan, proposes to eviscerate and eventually eliminate Medicare, thus threatening to deprive millions of vulnerable, elderly people of essential healthcare. Surely assurance of access to healthcare when in need is at least as important as assurance of dignity in public. Why is this harm, then, not also a candidate for legal redress? I argue that Waldron's view does not have the resources to distinguish the Ryan case, but I do not offer that as a reductio of his position. To the contrary, it seems to me a virtue of Waldron's book is that by making an often vivid case for the harm that the content of speech can inflict on the vulnerable, Waldron forces us to take seriously Herbert Marcuse's old worry: namely, that while the toleration of harmful speech "in conversation, in academic discussion ... in the scientific enterprise, in private religion" is justified, perhaps "society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake." Waldron does not explore that implication of his argument, but it is one that warrants renewed consideration if one shares Waldron's core intuition that harm to the vulnerable, even harm inflicted by speech, deserves legal notice.Leiter concludes with a discussion of "the heart of the matter", ie doubts about whether government should be thought competent or trustworthy to decide which speech is harmful to the vulnerable and which not.
He comments that such doubts are
a familiar theme in the American constitutional literature, central, for example, to Frederick Schauer’s seminal discussion thirty years ago in Free Speech: A Philosophical Enquiry:
Freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense.
We need not sign on to the more generalized paranoia about government power expressed at the end of Schauer’s statement in order to still agree that government seems to be a problematic arbiter of truth and falsity, or harm and lack of harm, since it, too often, has dubious competence and often dubious motives for its decisions in these domains. In the case of “hate speech,” speech that harms the “dignitary order of society,” Waldron is unimpressed by this worry, however. He asks why the prohibition of group defamation should be “an area where we should be particularly mistrustful of our lawmakers” (202)? After all, this is “a legislative majority bending over backwards to ensure that vulnerable minorities are protected against hatred and discrimination that might otherwise be endemic in society” (202). So “hate speech laws do not involve putting the interests of the majority above those of vulnerable groups” (203).
Waldron’s characterization of the content of hate speech legislation in jurisdictions outside the United States is fair, and perhaps that is because democratic processes there are more robust than in the United States. But surely one could imagine that were the United States to go the route proposed by Waldron that Evangelical Christians would soon present themselves as a “vulnerable” group, oppressed by a secular society, and demand appropriate regulations governing how the secular elites speak about them. Richard Dawkins (maybe even Brian Leiter?) better watch out how they speak about religious belief once the religious secure their Waldron-sanctioned protections!
At first blush, such concerns might seem silly. Evangelical Christians, with significant control over one of the main political parties in the United States and facing no threat of serious state persecution, are obviously in a very different position than the minority of American Muslims, who are spied on by the police agencies and regularly tarred as terrorists and dangers to the body politic in national media, especially, but not only, on-line. Yet that is precisely the reason to worry, says the critic of Waldron’s view: precisely because Evangelical Christians do have access to political power, they are in a position to get their self-representation as “vulnerable”, as implausible as it may seem, recognized by the law. What if other pseudo-vulnerable groups follow suit?
This kind of worry cuts in another direction too. A critic might also object that the elderly are not a “vulnerable” group in the U.S., represented, as they are, by an allegedly powerful lobbying organization, the American Association of Retired Persons (“AARP”). The supposed power of the AARP is perhaps belied, of course, by the political viability of the Ryan case, but we may put that to one side, since the case also illustrates an ambiguity in the notion of “vulnerability.” The elderly dependent on Medicare are vulnerable in the sense of being almost wholly dependent on a particular government benefit for their well-being and existence. Perhaps they are not quite as vulnerable in the sense of having no voice in the political process - though, of course, that remains to be seen. Although Waldron is not clear on this point, I take it he means vulnerability in something closer to the first sense, that is, people who can be harmed unless government acts. In that case, the elderly dependent on Medicare are not that different from the vulnerable minorities on whom Waldron focuses.
Late in the book, Waldron affirms that “everything must be open to debate and challenge in a free and democratic society, no matter how important the objects of challenge seem to be to the culture and identify of our community” (198), which would seem to provide secure protection for the Ryan case. But it is not at all clear how that resounding affirmation of “open debate” can be squared with the idea that harm to vulnerable people is morally important, and that no one may impugn the “dignitary order of society.” Is this entire exercise just Miss Manners writ large in the language of political philosophy? One might think so when Waldron admonishes that “forceful disagreement, when it is expressed, should be expressed in terms that can be engaged with intellectually, which is the only means by which belief might possibly be affected” (230; cf. 229). Yet it is absurd on its face to suggest that “belief” is only affected by “intellectual” forms of expression, and, of course, Waldron cites no evidence to the contrary (there is none as far as I know) and his own discussion of the reasons for being apprehensive about “hate speech” suggests he does not really believe it. But even putting that empirical flight-of-fancy to one side, it is hard to see how this admonition to nice intellectual manners is consistent with his earlier claim that it is fine to “ridicule” (Waldron’s word) the Tea Party folks as having “preoposterous” views. At points like this, the lack of a systematic theoretical framework for the argument becomes particularly apparent. Almost a half-century ago, the Marxist philosopher Herbert Marcuse expressed the view in his famous essay on “Repressive Tolerance” that,
[T]olerance cannot be indiscriminate and equal with respect to the contents of expression, neither in word nor in deed; it cannot protect false words and wrong deeds which demonstrate that they contradict and counteract the possibilities of liberation. Such indiscriminate tolerance is justified in harmless debates, in conversation, in academic discussion; it is indispensable in the scientific enterprise, in private religion. But society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake: here, certain things cannot be said, certain ideas cannot be expressed, certain policies cannot be proposed, certain behavior cannot be permitted without making tolerance an instrument of the continuation of servitude.
Waldron’s book is significant, in part, because he is an influential theorist, well within the rather staid mainstream of the liberal capitalist “West,” endorsing the regulation of speech based on its content, in particular, based on the harm that content does to vulnerable people. But once that Pandora’s Box is opened - it has to be given the reality that speech causes all kinds of harms to vulnerable populations - we end up having to ask why Marcuse was wrong? In that regard, Waldron’s book may prove a watershed in Western theorizing about freedom of speech, less because of its dialectical ingenuity or theoretical innovations, and more because it legitimizes Marcuse’s question in a way that has been unfamiliar in Anglophone debates for two generations.