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Must We Defend Nazis?: Hate Speech, Pornography, and the New First Amendment
In Must We Defend Nazis? Richard Delgado and Jean Stefancic set out to liberate speech from its current straight-jacket. Over the past hundred years, almost all of American law has matured from the mechanical jurisprudence approach-which held that cases could be solved on the basis of legal rules and logic alone-to that of legal realism-which maintains that legal reasoning must also take into account social policy, common sense, and experience. But in the area of free speech, the authors argue, such archaic formulas as the prohibition against content regulation, the maxim that the cure for bad speech is more speech, and the speech/act distinction continue to reign, creating a system which fails to take account of the harms speech can cause to disempowered, marginalized people. Focusing on the issues of hate-speech and pornography, this volume examines the efforts of reformers to oblige society and law to take account of such harms. It contends that the values of free expression and equal dignity stand in reciprocal relation. Speech in any sort of meaningful sense requires equal dignity, equal access, and equal respect on the parts of all of the speakers in a dialogue; free speech, in other words, presupposes equality. The authors argue for a system of free speech which takes into account nuance, context-sensitivity, and competing values such as human dignity and equal protection of the law.
240 pages, Paperback
First published January 1, 1997
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April 13, 2019
A recent Brookings institute poll of college aged students found that 40% believed the 1st amendment doesn’t protect hate speech, 50% believed hate speech should be shut down, while 19% believed violence is an acceptable tactic to stop hate speech. The Washington Post would go on to call these findings “chilling” and I find myself equally dismayed by them.
If it’s necessary to do so, I’ll start this review by saying I do not support or defend Nazis or racists. Hardly a controversial position perhaps but necessary to state in light of this book and its misleading title. To the question “Must we defend Nazi’s?” how many would raise their hand in the affirmative? Perhaps it depends on where the question is being asked and in what company but generally speaking only a handful of the bravest souls would say yes. The question the authors here ask however is more complex and would better be described as “Must we defend Nazi speech?”.
I generally lean toward protecting all forms of speech that do not incite violence or directly intimidate others. I may not like another person’s point of view but it’s important to be cognizant of the view that they probably don’t like mine either. In light of this conundrum, what do we do? The authors believe that “hate speech” (an unfortunately vague term) should be prohibited, particularly on college campuses to protect young and impressionable minority groups. It’s a slightly paternalistic view in that it assumes adult students are unable to deal with this odious speech on their own, and ironic considering that the authors frequently accuse those opposed to restricting hate speech as being paternalistic.
I’m open to their argument, even if I disagree with their thesis , however this book is poorly written and woefully lacking any research or documentation to support their conclusions. Take for example this passage about hate speech regulation in Europe, cited as an example of how it wouldn’t stifle speech in the U.S.:
“A host of Western industrialized nations, including Sweden, Germany, Denmark, Canada, and Great Britain, have instituted laws against hate speech and hate propaganda, many in order to comply with international treaties and conventions requiring them. Many of these countries have traditions of respect for free speech at least the equal of ours. No such nation has reported any erosion of the atmosphere of free speech or debate (see chapter 6).”
There is no documentation to back this up, no statistics or charts. Simply, “I said it so it’s true”. In fact the only footnote here is a note to refer back to an earlier chapter (also devoid of footnotes). So more accurately “I said it in chapter 6 so it must be true”. In fact the only argument this book seems to make is that hate speech hurts people. I have no doubt this is true and wish it didn’t exist. But before we shut down people’s ability to speak we need a more nuanced discussion about what effects shutting down speech we don’t like would have on society as a whole. What exactly is hate speech? Who has the authority to define it? Is it a person’s words? Thoughts? Intentions? While it’s easy to recognize someone using the N-word as a clear example of hate speech, most situations are not as clear.
I waited for the authors to present more arguments about the potentials dangers of shutting down speech we don’t like but was in the end disappointed. In fact, there were a number of passages that left me confused and slightly incredulous. Below are a few of the more egregious examples:
“Most racial taunts are intentional, not inadvertent.”
—I don’t know how the authors know or quantify this
“These defenders see safe houses, trigger warnings, and hate-speech codes as throwbacks to the days when colleges and universities functioned in loco parentis, and wonder what might come next: rules attempting to regulate student sexuality or alcohol and drug consumption.”
—This was one of the frequent and bizarre straw men the authors set up throughout the book. The idea that people who want to protect speech we disagree with equate that with regulating student sexuality, or regulating alcohol(already done on campuses) and drugs (generally illegal and already regulated as well) is ludicrous. Who exactly is making this argument? What we get instead is a Trumpian “I’m hearing that….” or “Many people are saying…” when in fact nobody is saying this.
"Legal realism would counsel that they come in for serious examination, especially on college campuses, where the stakes are high. We are dealing, after all, with young minds and psyches and, therefore, the future of the country."
—When I read this I admit I flashed back to an episode of the Simpsons where someone shouted “Won’t anyone think of the children!”. These are young people but also adults. Denying them coping mechanisms to harsh realities outside of a sheltered campus life is doing them no favors. They will encounter racists and bigots in their life when there will not be “safe spaces” to go to.
"If minorities truly understood their situation, they would not be clamoring for hate-speech rules, but would instead embrace the civil libertarian/free-speech position. Often these objections issue from the moderate left, sometimes from libertarians. Many of them are paternalistic in nature, reasoning that the best interest of minorities, properly understood, militates against protecting them from hate speech."
—Again, who is saying this? What is the moderate left?
"Racism, of course, is not a one-way street; some minorities have harassed and badgered whites. And a study showed that in repressive societies, such as South Africa and the former Soviet Union, laws against hate speech have indeed been deployed to stifle dissenters and members of minority groups. Yet this has not happened in more progressive countries. The likelihood that officials in the United States would turn hate-speech laws into weapons against minorities thus seems remote."
—That something has happened yet is not indicative that it won’t happen in the future. Legislating on the assumption that something will always be true (we of course don’t know this is true because there are no citations) is a dangerous precedent.
"A speaker asked to reconsider his or her use of language may begin to reflect on the way he or she thinks about a subject."
—It is wishful thinking to assume that a racist will change his way of thinking through coercion. Someone who feels they are being suppressed will likely become resentful rather than repentant.
I could go into the authors hatred of the ACLU as well (he compares them to conservative bigots) but you probably get the point.
So in answer to the title of this book “Must we defend Nazis?”, the answer for the vast majority of people, including myself, is surely an emphatic no.
However if the question is “Must we defend Nazis speech?”…., there is an important discussion to be had that doesn’t begin with this book.
If it’s necessary to do so, I’ll start this review by saying I do not support or defend Nazis or racists. Hardly a controversial position perhaps but necessary to state in light of this book and its misleading title. To the question “Must we defend Nazi’s?” how many would raise their hand in the affirmative? Perhaps it depends on where the question is being asked and in what company but generally speaking only a handful of the bravest souls would say yes. The question the authors here ask however is more complex and would better be described as “Must we defend Nazi speech?”.
I generally lean toward protecting all forms of speech that do not incite violence or directly intimidate others. I may not like another person’s point of view but it’s important to be cognizant of the view that they probably don’t like mine either. In light of this conundrum, what do we do? The authors believe that “hate speech” (an unfortunately vague term) should be prohibited, particularly on college campuses to protect young and impressionable minority groups. It’s a slightly paternalistic view in that it assumes adult students are unable to deal with this odious speech on their own, and ironic considering that the authors frequently accuse those opposed to restricting hate speech as being paternalistic.
I’m open to their argument, even if I disagree with their thesis , however this book is poorly written and woefully lacking any research or documentation to support their conclusions. Take for example this passage about hate speech regulation in Europe, cited as an example of how it wouldn’t stifle speech in the U.S.:
“A host of Western industrialized nations, including Sweden, Germany, Denmark, Canada, and Great Britain, have instituted laws against hate speech and hate propaganda, many in order to comply with international treaties and conventions requiring them. Many of these countries have traditions of respect for free speech at least the equal of ours. No such nation has reported any erosion of the atmosphere of free speech or debate (see chapter 6).”
There is no documentation to back this up, no statistics or charts. Simply, “I said it so it’s true”. In fact the only footnote here is a note to refer back to an earlier chapter (also devoid of footnotes). So more accurately “I said it in chapter 6 so it must be true”. In fact the only argument this book seems to make is that hate speech hurts people. I have no doubt this is true and wish it didn’t exist. But before we shut down people’s ability to speak we need a more nuanced discussion about what effects shutting down speech we don’t like would have on society as a whole. What exactly is hate speech? Who has the authority to define it? Is it a person’s words? Thoughts? Intentions? While it’s easy to recognize someone using the N-word as a clear example of hate speech, most situations are not as clear.
I waited for the authors to present more arguments about the potentials dangers of shutting down speech we don’t like but was in the end disappointed. In fact, there were a number of passages that left me confused and slightly incredulous. Below are a few of the more egregious examples:
“Most racial taunts are intentional, not inadvertent.”
—I don’t know how the authors know or quantify this
“These defenders see safe houses, trigger warnings, and hate-speech codes as throwbacks to the days when colleges and universities functioned in loco parentis, and wonder what might come next: rules attempting to regulate student sexuality or alcohol and drug consumption.”
—This was one of the frequent and bizarre straw men the authors set up throughout the book. The idea that people who want to protect speech we disagree with equate that with regulating student sexuality, or regulating alcohol(already done on campuses) and drugs (generally illegal and already regulated as well) is ludicrous. Who exactly is making this argument? What we get instead is a Trumpian “I’m hearing that….” or “Many people are saying…” when in fact nobody is saying this.
"Legal realism would counsel that they come in for serious examination, especially on college campuses, where the stakes are high. We are dealing, after all, with young minds and psyches and, therefore, the future of the country."
—When I read this I admit I flashed back to an episode of the Simpsons where someone shouted “Won’t anyone think of the children!”. These are young people but also adults. Denying them coping mechanisms to harsh realities outside of a sheltered campus life is doing them no favors. They will encounter racists and bigots in their life when there will not be “safe spaces” to go to.
"If minorities truly understood their situation, they would not be clamoring for hate-speech rules, but would instead embrace the civil libertarian/free-speech position. Often these objections issue from the moderate left, sometimes from libertarians. Many of them are paternalistic in nature, reasoning that the best interest of minorities, properly understood, militates against protecting them from hate speech."
—Again, who is saying this? What is the moderate left?
"Racism, of course, is not a one-way street; some minorities have harassed and badgered whites. And a study showed that in repressive societies, such as South Africa and the former Soviet Union, laws against hate speech have indeed been deployed to stifle dissenters and members of minority groups. Yet this has not happened in more progressive countries. The likelihood that officials in the United States would turn hate-speech laws into weapons against minorities thus seems remote."
—That something has happened yet is not indicative that it won’t happen in the future. Legislating on the assumption that something will always be true (we of course don’t know this is true because there are no citations) is a dangerous precedent.
"A speaker asked to reconsider his or her use of language may begin to reflect on the way he or she thinks about a subject."
—It is wishful thinking to assume that a racist will change his way of thinking through coercion. Someone who feels they are being suppressed will likely become resentful rather than repentant.
I could go into the authors hatred of the ACLU as well (he compares them to conservative bigots) but you probably get the point.
So in answer to the title of this book “Must we defend Nazis?”, the answer for the vast majority of people, including myself, is surely an emphatic no.
However if the question is “Must we defend Nazis speech?”…., there is an important discussion to be had that doesn’t begin with this book.
February 16, 2018
This book was really disappointing. I had hoped for something akin to an updated Words That Wound: Critical Race Theory, Assaultive Speech, And The First Amendment with detailed analysis of legal cases and theory that addressed the current upsurge in Nazi and other white supremacist activity in the United States. In particular I was excited to know that there was a chapter addressing how other democratic nations deal with hate speech and freedom of expression.
That chapter I was excited about? It is two pages long. TWO PAGES. I will summarize it for you: Countries in Europe have laws prohibiting hate speech and still have vibrant democracies! Thank you. I knew that. I was hoping for details. Delgado does reference a study done comparing regulations in EU nations, but without any detail. If you are interested in doing original research with primary sources, you can probably track down that study.
And speaking of references, the reference section is a page and a half of titles listed "in order of appearance" in the text. No footnotes. No endnotes. No in-text citations. So when Delgado says that fears that hate speech regulations will be turned around and used against the minorities they were intended to protect are unfounded and that no such thing has happened in countries with hate speech laws, you just have to trust him.
If you are interested in a book that will help you in debates with well-intentioned first amendment absolutists, this book will not help you.
That chapter I was excited about? It is two pages long. TWO PAGES. I will summarize it for you: Countries in Europe have laws prohibiting hate speech and still have vibrant democracies! Thank you. I knew that. I was hoping for details. Delgado does reference a study done comparing regulations in EU nations, but without any detail. If you are interested in doing original research with primary sources, you can probably track down that study.
And speaking of references, the reference section is a page and a half of titles listed "in order of appearance" in the text. No footnotes. No endnotes. No in-text citations. So when Delgado says that fears that hate speech regulations will be turned around and used against the minorities they were intended to protect are unfounded and that no such thing has happened in countries with hate speech laws, you just have to trust him.
If you are interested in a book that will help you in debates with well-intentioned first amendment absolutists, this book will not help you.
March 6, 2020
Such an important book, especially in these times. Deals with both left and right wing arguments as to why hate speech should (not) be protected. Highly recommend it.
*I received a free copy through Netgalley, but the review is my own opinion.*
*I received a free copy through Netgalley, but the review is my own opinion.*
May 28, 2013
This is such a disorganized book I can't even finish it. Ugh.
January 17, 2020
I liked this.
It wasn't perfect.
Citations were terrible. Mostly non-existent. For a book written by academics on a bit of a heavy subject, this is inexcusable. Others have complained that the lack of citations, the lack of giving any evidence to certain fact-claims, ruined the book for them. That's fair. It didn't ruin it for me. Some of the things they referenced are things I'm familiar with through other reading. But not everything. One shouldn't make big claims in a book like this and just skip out on the responsibility of backing it up with accurate, clear citations.
Also, the title is misleading. It's a book about "hate speech," not Nazis. Though Nazis may often employ hate speech, not all who employ hate speech are Nazis, and this book is by no means primarily or even largely about Nazis.
Also, it's a little too much about campus problems. Campus problems are legit problems, but there is a world outside of campus life, and it has problems too, exactly these types of problems in fact, and it would have been nice if the authors had focused less on campus issues and more on how this translates into the rest of the great big world.
Also (I think this is my last complaint), there aren't enough details. By which I mean, specifically, that there aren't examples or details or explanations of what their proposed reforms might actually look and feel like in the really real world. There's one short bit on this on pages 70-71, but it's short, and of course it's focused on campus issues.
Okay.
That's what I didn't love.
But I liked this book.
It addresses an issue that I myself find pretty challenging, namely, where is the balance between protecting the Constitutional right of Free Speech and protecting the rights of minorities to basically just plain old exist without fear and harassment and mistreatment.
I find this topic quite sticky and troublesome and appreciated the ideas that the authors brought to this book.
For instance, the authors point out that speech is already restricted in a number of cases where we see the unfettered free speech as doing more harm than the restrictions. Plagiarism is not covered by free speech rights. False advertising is not covered by free speech rights. Free speech doesn't let you threaten to kill your neighbor or let you insult a judge in the courtroom or write a letter to the paper saying you're going to blow up a school. So free speech is already regulated. We regulate in each of these cases because as a society we've decided that important things (being protected from threats, the dignity of judges, informed consumerism, intellectual property rights) are more important than the things people might want to sometimes express. The question is, why is the dignity and mental health and security of minorities not more important than the right to spew racist rhetoric?
Also for instance, the authors note that protection of hate speech actual limits overall free speech, as hate speech is generally an intimidation tactic used to keep marginalized people "in their place," prevent them from using their voice. (I would encourage everyone to read "(((Semitism)))" to see how this plays out today...). That's interesting and useful and I appreciate this.
Overall, the authors make the case for some kind of change, though it's not clear what exactly that change should be. Again, it would have been nice if they'd spelled out some policy changes they'd like to see that address the hate speech issue without making people nervous about free speech in general. I think it would have been fairly easy to do that based on the principles they lay out here.
Anyway, overall a decent book. Could have been lots better. Maybe someone will use this to write a terrific book someday more or less on the same topic.
In the meantime, you know, don't protect Nazis.
It wasn't perfect.
Citations were terrible. Mostly non-existent. For a book written by academics on a bit of a heavy subject, this is inexcusable. Others have complained that the lack of citations, the lack of giving any evidence to certain fact-claims, ruined the book for them. That's fair. It didn't ruin it for me. Some of the things they referenced are things I'm familiar with through other reading. But not everything. One shouldn't make big claims in a book like this and just skip out on the responsibility of backing it up with accurate, clear citations.
Also, the title is misleading. It's a book about "hate speech," not Nazis. Though Nazis may often employ hate speech, not all who employ hate speech are Nazis, and this book is by no means primarily or even largely about Nazis.
Also, it's a little too much about campus problems. Campus problems are legit problems, but there is a world outside of campus life, and it has problems too, exactly these types of problems in fact, and it would have been nice if the authors had focused less on campus issues and more on how this translates into the rest of the great big world.
Also (I think this is my last complaint), there aren't enough details. By which I mean, specifically, that there aren't examples or details or explanations of what their proposed reforms might actually look and feel like in the really real world. There's one short bit on this on pages 70-71, but it's short, and of course it's focused on campus issues.
Okay.
That's what I didn't love.
But I liked this book.
It addresses an issue that I myself find pretty challenging, namely, where is the balance between protecting the Constitutional right of Free Speech and protecting the rights of minorities to basically just plain old exist without fear and harassment and mistreatment.
I find this topic quite sticky and troublesome and appreciated the ideas that the authors brought to this book.
For instance, the authors point out that speech is already restricted in a number of cases where we see the unfettered free speech as doing more harm than the restrictions. Plagiarism is not covered by free speech rights. False advertising is not covered by free speech rights. Free speech doesn't let you threaten to kill your neighbor or let you insult a judge in the courtroom or write a letter to the paper saying you're going to blow up a school. So free speech is already regulated. We regulate in each of these cases because as a society we've decided that important things (being protected from threats, the dignity of judges, informed consumerism, intellectual property rights) are more important than the things people might want to sometimes express. The question is, why is the dignity and mental health and security of minorities not more important than the right to spew racist rhetoric?
Also for instance, the authors note that protection of hate speech actual limits overall free speech, as hate speech is generally an intimidation tactic used to keep marginalized people "in their place," prevent them from using their voice. (I would encourage everyone to read "(((Semitism)))" to see how this plays out today...). That's interesting and useful and I appreciate this.
Overall, the authors make the case for some kind of change, though it's not clear what exactly that change should be. Again, it would have been nice if they'd spelled out some policy changes they'd like to see that address the hate speech issue without making people nervous about free speech in general. I think it would have been fairly easy to do that based on the principles they lay out here.
Anyway, overall a decent book. Could have been lots better. Maybe someone will use this to write a terrific book someday more or less on the same topic.
In the meantime, you know, don't protect Nazis.
February 12, 2018
Considering that this was a revised edition (as far as I understood), it felt like a rushed job. The focus is obviously on the US, but also rather narrowly on legal provision, not what is right or wrong, but what can be argued as such in courts. For the philosophical and sociological arguments Gavan Titley et al's new book After Charlie Hebdo is much better.
December 26, 2024
A timely reexamination of the first amendment and why we privilege it over real human lives and societal wellbeing. The text can be quite repetitive, but it does present a convincing argument for legal realism—one that may be even more relevant today given the disinformation rampant in our lives and political sphere. First amendment absolutism has to go.
October 2, 2019
While the tone of this book is conversational, I don't feel versed enough in the arguments after reading it to be able to dismantle any opposing views. I think I would have to reread it a few times to really understand and be able to articulate this perspective on the First Amendment.
December 8, 2017
If you are interested in equitable outcomes for all human beings, you need to read this book, as it presents a nuanced and insightful analysis to rethink oppressive paradigms!
December 11, 2017
This is a book for the times we live in where the very question of how much freedom we should allow the alt-right is a pressing issue. The issue is tackled with a lot of care, and not the immediate gut reaction I would give if asked the same question. A number of legal precedents are listed, and expertly explained, and some of the many sides of the issue are cleanly divided into chapters for easy reference. This book can be easily cited for any number of academic papers on the issue, and from my perspective, tries to maintain an academic neutrality on the issue, while not supporting the politics of the alt-right. This is not a light, casual read, but something that informs about the legal rights, and moral rights of the modern western citizen (although more focused legally on the United States).
Displaying 1 - 10 of 10 reviews