Stanley Fish y Waldron sobre la libertad de expresion y el odio.

Por Jorge Luis Fabra Zamora (

Aquí les pongo el interesante debate entre Stanley Fish y Jeremy Waldron, con ocasión al nuevo libro del último.

Primero, el libro:Información tomada de aquí:

The Harm in Hate Speech

Jeremy Waldron

Every liberal democracy has laws or codes against hate speech—except the United States. For constitutionalists, regulation of hate speech violates the First Amendment and damages a free society. Against this absolutist view, Jeremy Waldron argues powerfully that hate speech should be regulated as part of our commitment to human dignity and to inclusion and respect for members of vulnerable minorities.
Causing offense—by depicting a religious leader as a terrorist in a newspaper cartoon, for example—is not the same as launching a libelous attack on a group’s dignity, according to Waldron, and it lies outside the reach of law. But defamation of a minority group, through hate speech, undermines a public good that can and should be protected: the basic assurance of inclusion in society for all members. A social environment polluted by anti-gay leaflets, Nazi banners, and burning crosses sends an implicit message to the targets of such hatred: your security is uncertain and you can expect to face humiliation and discrimination when you leave your home.
Free-speech advocates boast of despising what racists say but defending to the death their right to say it. Waldron finds this emphasis on intellectual resilience misguided and points instead to the threat hate speech poses to the lives, dignity, and reputations of minority members. Finding support for his view among philosophers of the Enlightenment, Waldron asks us to move beyond knee-jerk American exceptionalism in our debates over the serious consequences of hateful speech.
Ahora si, el debate. Primero, una reseña por Fish (esto es propiedad de the New York Times, tomado de aquí 

The Harm in Free Speech

Stanley Fish
Stanley Fish on education, law and society.
Jeremy Waldron’s new book, “The Harm in Hate Speech,” might well be called “The Harm in Free Speech”; for Waldron, a professor of law and political theory at New York University and Oxford, argues that the expansive First Amendment we now possess allows the flourishing of harms a well-ordered society ought not permit.
Waldron is especially concerned with the harm done by hate speech to the dignity of those who are its object. He is careful to distinguish “dignity harms” from the hurt feelings one might experience in the face of speech that offends. Offense can be given by almost any speech act — in particular circumstances one might offend by saying “hello” — and Waldron agrees with those who say that regulating offensive speech is a bad and unworkable idea.
But harms to dignity, he contends, involve more than the giving of offense. They involve undermining a public good, which he identifies as the “implicit assurance” extended to every citizen that while his beliefs and allegiance may be criticized and rejected by some of his fellow citizens, he will nevertheless be viewed, even by his polemical opponents, as someone who has an equal right to membership in the society. It is the assurance — not given explicitly at the beginning of each day but built into the community’s mode of self-presentation — that he belongs, that he is the undoubted bearer of a dignity he doesn’t have to struggle for.

Waldron’s thesis is that hate speech assaults that dignity by taking away that assurance. The very point of hate speech, he says, “is to negate the implicit assurance that a society offers to the members of vulnerable groups — that they are accepted … as a matter of course, along with everyone else.” Purveyors of hate “aim to undermine this assurance, call it in question, and taint it with visible expressions of hatred, exclusion and contempt.”
“Visible” is the key word. It is the visibility of leaflets, signs and pamphlets asserting that the group you belong to is un-American, unworthy of respect, and should go back where it came from that does the damage, even if you, as an individual, are not a specific target. “In its published, posted or pasted-up form, hate speech can become a world-defining activity, and those who promulgate it know very well — this is part of their intention — that the visible world they create is a much harder world for the targets of their hatred to live in.” (Appearances count.)
Even though hate speech is characterized by First Amendment absolutists as a private act of expression that should be protected from government controls and sanctions, Waldron insists that “hate speech and defamation are actions performed in public, with a public orientation, aimed at undermining public goods.” That undermining is not accomplished by any particular instance of hate speech.
But just as innumerable individual automobile emissions can pollute the air, so can innumerable expressions of supposedly private hate combine to “produce a large-scale toxic effect” that operates as a “slow-acting poison.” And since what is being poisoned is the well of public life, “it is natural,” says Waldron, “to think that the law should be involved — both in its ability to underpin the provision of public goods and in its ability to express and communicate common commitments.” After all, he reminds us, “Societies do not become well ordered by magic.”
Waldron observes that legal attention to large-scale structural, as opposed to individual, harms is a feature of most other Western societies, which, unlike the United States, have hate speech regulations on their books. He finds it “odd and disturbing that older and cruder models remain dominant in the First Amendment arena.” But as he well knows, it is not so odd within the perspective of current First Amendment rhetoric, which is militantly libertarian, protective of the individual’s right of self-assertion no matter what is being asserted, and indifferent (relatively) to the effects speech freely uttered might have on the fabric of society.
It was not always thus. At one time, both the content and effects of speech were taken into account when the issue of regulation was raised. Is this the kind of speech we want our children to see and hear? Are the effects of certain forms of speech so distressing and potentially dangerous that we should take steps to curtail them? Is this form of speech a contribution to the search for truth? Does it have a redeeming social value? Since New York Times v. Sullivan (1964) these questions, which assess speech in terms of the impact it has in the world, have been replaced by a simpler question — is it speech? — that reflects a commitment to speech as an almost sacrosanct activity. If the answer to that question is “yes,” the presumption is that it should be protected, even though the harms it produces have been documented.
Waldron wants to bring back the focus on those harms and restore the reputation of Beauharnais v. Illinois (1952), in which the Supreme Court upheld a group libel law. The case turned on the conviction of a man who had distributed leaflets warning Chicagoans to be alert to the dangers of mongrelization and rape that will surely materialize, he claimed, if white people do not unite against the Negro. Speaking for the majority, Justice Felix Frankfurter wrote that “a man’s job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial group to which he willy-nilly belongs as on his own merit.”
With the phrase “on his own merit,” Frankfurter gestures toward the view of dignity he is rejecting, the view in which dignity wells up from the inside of a man (or woman) and depends on an inner strength that asserts itself no matter how adverse or hostile external circumstances may be, including the circumstance in which the individual is confronted with signs, posters and pamphlets demeaning his race or ethnic origin or religion or sexual preference. In this picture, the responsibility for maintaining dignity rests with the individual and not with any state duty to devise rules and regulations to protect it.
Some who take this position argue that if the individual feels victimized by expressions of hate directed at the group to which he “willy-nilly” belongs, that is his or her own choice. Waldron’s example is C. Edwin Baker (“Harm, Liberty and Free Speech,” Southern California Law Review, 1997), who writes: “A speaker’s racial epithet … harms the hearer only through her understanding of the message … and [harm] occurs only to the extent that the hearer (mentally) responds one way rather than another, for example, as a victim rather than as a critic of the speaker.”
In this classic instance of blaming the victim, the fault lies with a failure of resolve; self-respect was just not strong enough to rise to the occasion in a positive way. Waldron calls this position “silly” (it is the majority’s position in Plessy v. Ferguson) and points out that it mandates and celebrates a harm by requiring victims of hate speech to grin and bear it: “It should not be necessary,” he declares, “for [hate speech victims] to laboriously conjure up the courage to go out and try to flourish in what is now presented to them as a … hostile environment.” The damage, Waldron explains, is already done by the speech “in requiring its targets to resort to the sort of mental mediation that Baker recommends.” To the extent that those targets are put on the defensive, “racist speech has already succeeded in one of its destructive aims.”
Notice that here (and elsewhere in the book), Waldron refuses to distinguish sharply between harm and representation. In the tradition he opposes, harm or hurt is physically defined; one can be discomforted and offended by speech; but something more than speech or image is required for there to be genuine (and legally relevant) damage. After all, “sticks and stones will break my bones, but names will never hurt me.”
No, says Waldron (and here he follows Catharine MacKinnon’s argument about pornography), the speech is the damage: “[T]he harms emphasized in this book are often harms constituted by speech rather than merely caused by speech.” If the claim were that the harm is caused by speech, there would be room to challenge the finding by pointing to the many intervening variables that break or complicate the chain of causality. But there is no chain to break if harm is done the moment hate speech is produced. “The harm is the dispelling of assurance, and the dispelling of assurance is the speech act.”
Waldron knows that the underlying strategy of those he writes against is to elevate the status of expression to an ultimate good and at the same time either deny the harm – the statistics are inconclusive; the claims cannot be proved — or minimize it in relation to the threat regulation poses to free expression. If “free speech trumps any consideration of social harm … almost any showing of harm resulting from hate speech … will be insufficient to justify restrictions on free speech of the kind that we are talking about.”
In short, the game is over before it begins if your opponent can be counted on to say that either there is no demonstrated harm or, no matter how much harm there may be, it will not be enough to justify restrictions on speech. If that’s what you’re up against, there is not much you can do except point out the categorical intransigence of the position and offer an (unflattering) explanation of it.
Waldron’s explanation is that the position is formulated and presented as an admirable act of unflinching moral heroism by white liberal law professors who say loudly and often that we must tolerate speech we find hateful. Easy to say from the protected perch of a faculty study, where the harm being talked about is theoretical and not experienced.
But what about the harm done “to the groups who are denounced or bestialized in pamphlets, billboards, talk radio and blogs? … Can their lives be led, can their children be brought up, can their hopes be maintained and their worst fears dispelled in a social environment polluted by those materials”?
Waldron answers “no,” and he challenges society and its legal system to do something about it. But the likelihood that something will be done is slim if Waldron is right about the state of First Amendment discourse: “[I]n the American debate, the philosophical arguments about hate speech are knee-jerk, impulsive and thoughtless.” Not the arguments of this book, however; they hit the mark every time.
 Y la rspuesta de Waldron, tomada de aquí.

  June 18, 2012, 9:15 pm

Hate Speech and Free Speech, Part Two

I am grateful to Stanley Fish for his review and for the sympathetic attention he paid to the detailed arguments in “The Harm in Hate Speech.” I also appreciate the responses to Fish’s review. The issue of hate speech legislation is, in my view, a difficult one. There are good arguments on both sides and, among the respondents, the critics have flagged a number of important issues.
Of course some of the critics are just dismissive: “Is Waldron’s book … a joke?” asked Ron Hansing of Columbus, Mo. “God help us from this kind of thinking!” And Robert Cicero of Tuckahoe, N.Y., wrote: “Shame on the whole lot of you” for even discussing this; the discussion, he said, “is yet one more assault on the US Constitution.” Or as Paz from New Jersey put it, “What part of ‘shall not be infringed’ do you fail to understand?”
But even those who love the First Amendment should be interested in at least understanding the things that can be said on the other side, if only to reinforce their sense of what’s distinctive about this country’s commitments. A large proportion of the other advanced democracies in the world combine a commitment to free speech with rules prohibiting hate speech. Isn’t it worth considering how they do this? And why? No one is burning the constitution here. We’re just trying to think about it.

Democracies like Britain, France, Germany, Denmark, Canada and New Zealand all prohibit hate speech of various kinds. They do so for what they think are good reasons. It is worth thinking about those reasons. Are they good reasons that (from an American First Amendment perspective) are just not strong enough to stand up against our overwhelmingly powerful commitment to free speech? Or are they simply bad reasons?
I think some of the things people cite in favor of hate speech regulation are bad reasons — like trying to protect people from being offended and annoyed. I agree with Stanley Fish about that. But some of the reasons are about dignity, not offense — I spend a lot of time in the book thinking aloud about that distinction — and these reasons are worth taking seriously, even if ultimately we think they are trumped by the value of free speech.
Rtbinc from Brooklyn asks: “What does Dignity mean here?” Shari from Cambridge, Mass., says that “dignity” remains conspicuously undefined. She calls it “a term often suspect in its uses, and very difficult to define.” Remember, though, that we are thinking about dignity as a justification for these laws, not as part of the legal text itself. So we need a broad understanding of it and an understanding of how it is affected by hate speech, not a technical definition.
But what I have in mind when I talk about dignity is this — a person’s basic social status, his or her being treated as an ordinary member of society in good standing, his or her being included in the ordinary business of society. A person’s dignity is damaged, then, when he or she is publicly defamed or dehumanized, or when he or she is perceived as belonging to a group all of whose members are defamed or dehumanized. In parts of Miami some restaurant signs used to say, “Jews and dogs not welcome here.” A legal prohibition on such signs would be aimed at securing the inclusiveness of the social environment against such attempts to undermine it.
That’s the underlying justification. But how would the laws be formulated? Sean Power of Scottsdale, Ariz., and Mcghostofelectricity, from Evanston, IL, say that the problem is “Who defines hate speech?” (Matthew Sills from Seattle says that he or she “certainly wouldn’t give the job to either Professor Fish or Professor Waldron.”) It’s an important question because as TheOwl from New England points out, “The devil in the regulation of speech is in the detail.”
Well, fortunately, we don’t have to reinvent the wheel on this one. We can draw on the legislative and regulatory experience of the dozens of democracies that already do this — that have enacted well-drafted hate speech laws and have amended and refined them over the years. They define hate speech in terms of the manner of speaking (threateningly, abusively) and in terms of its intended object (to stir up hatred against some group). And the legislation is often at pains to identify modes of robust speech and debate that are not prohibited.
For example, the British Public Order Act stipulates that “a person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if (a) he intends thereby to stir up racial hatred, or (b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.” The statute defines various defenses like talking in a private place or being unaware of the likelihood that the speech would stir up racial hatred.
Again, the statute defines religious hatred as “hatred against a group of persons defined by reference to religious belief or lack of religious belief” but it also insists that nothing in the statute “shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytizing or urging adherents of a different religion or belief system to cease practicing their religion or belief system.” It tries to protect the believers from defamation but not the belief. The British statute is not perfect, and its exact terms continue to be debated. Other countries take different approaches. My point is that we would have a wealth of examples to draw on if we were really interested in the questions of drafting and definition.
Michael of Jim Thorpe, Pa., says that the regulation of this sort of speech through the legislative process “is fraught with dangerous slippery slopes.” He is right to worry: there are dangers here, though it has to be said there are slippery-slope dangers for all legal regulations. Some of the commentators write as though free speech is an absolute in America. But it is not: as Logos, from Indianapolis, pointed out, we already acknowledged various exceptions. “Despite the ‘absolutist’ interpretation of the First Amendment, laws still prohibit fraud, slander and libel, conspiracy, pornography.”
And in each case, there are slippery-slope dangers that we have to face up to with legislative care and regulative safeguards. James B. Huntington of Eldred, N.Y., mentioned Oliver Wendell Holmes’s image of the person who shouts “Fire!” in a crowded theater (that is not on fire) as a clear example of an exception to the free speech principle (as opposed to the vague exception he thinks I am proposing). But the crowded theater limitation can also be abused. In fact, Justice Holmes abused it when he held that publishing a pamphlet complaining that conscription violated the 13th Amendment was like shouting “Fire!” in a crowded theater, though he could point to no panic analogous to the theater example. All doctrines of exception can be abused, judge-made exceptions no less than legislative ones.
I want to say something finally about two substantial suggestions that the commentators raised. One is about allowing people to speak so the hatred doesn’t fester. Paxton Williams of Denison, Tex., says: “Just as it is better to lance a boil than to let it fester perhaps it is better to have the hateful and intolerant express themselves. Let them expose themselves to one and all rather than remain quite in a seething cauldron of unseen, unknown and unheard hate and ignorance.”
I wonder. I said in the book that one of the aims of hate speech is not just to undermine the public good of inclusiveness and dignity, but also to establish a rival public good so that the racists and haters in the community can assure themselves and one another that they are not alone. I don’t think the medical analogy — “lancing a boil” — necessarily applies. It presupposes that there is a limited amount of hatred festering beneath the surface and that once it is released, it will dissipate harmlessly. But what is our evidence for that? Is it not possible that publishing racist abuse encourages others to do the same, emboldening those who are tempted by hate-filled sentiments with the awareness that they are not alone? To mix some other metaphors, perhaps it is a good thing to drive race hatred underground, depriving it of the oxygen that it needs in order to flourish.
The second substantial point I want to make is about other ways of combating hate speech. Ricodechef from Portland, Ore., says that “the remedy for hate speech is defiance and argument, not restriction.” His view is echoed by LayneDiehl, from Martinsburg, W. Va., who says: “I have often seen the uprising voice in response to hate speech serve more to bolster that dignity and perhaps balance out to an extent any injury or insult otherwise intended toward the victims.”
I respect these points of view. But it is not an either/or. One can ban hate speech and speak out against it. Indeed, the legal ban is itself a way of speaking out against it. The other democracies that have hate speech legislation have not given up on other responses. They just think they ought to have this in their repertoire of possible responses as well. They think that the usefulness and the design of laws against hate speech ought to be a matter of legislative judgment for each community, not something that is precluded peremptorily by judicial interpretations of free speech.