One possible justification for bans on expression that ridicules or expresses contempt for religious, national, ethnic, or racial groups is that members of the mocked groups will be offended, perhaps profoundly, and suffer considerable emotional distress. The U.S. Supreme Court, however, has been quite firm in rejecting offense as a ground for restricting expression, at least where the offended are not a captive audience. In 1971, in Cohen v. California, the Court held that freedom of speech entitled Mr. Cohen to wear in public a jacket that displayed a vulgar expression, noting that “one man’s vulgarity is another’s lyric.” In 1988, in Hustler Magazine v. Falwell, the Court denied, on free-speech grounds, compensation for intentional infliction of emotional distress after Hustler published a depiction of the Reverend Jerry Falwell in an incestuous sexual relation with his mother. The Court noted that George Washington was portrayed as an ass in an early cartoon and that graphic depictions and satirical cartoons continue to play a role in public debate. And the same year, in Boos v. Barry, striking down a District of Columbia ban on signs outside foreign embassies that insult their governments, the Court stated that, in public debate, “our citizens must tolerate insulting and even outrageous speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.” Finally, in 1978, in Collin v. Smith, the Court of Appeals for the Seventh Circuit essentially held to be a violation of freedom of expression a Skokie, Ill., ordinance outlawing demonstrations and other expressions that intentionally incite hatred of persons based on race, national origin, or religion. The ordinance had been adopted to prevent a march through Skokie by the American Nazi Party. Skokie, a suburb of Chicago, had a high number of Holocaust survivors among its citizens, and it was foreseeable that many might suffer psychic distress because of the march. Nonetheless, the circuit court held that the march had to be allowed, and the Supreme Court refused to review the decision.
One does not have to deny the pain that someone might suffer by being publicly mocked, or having his group or ideas publicly mocked, to see that bans on expression predicated on protecting people from offense would be a major threat to freedom of expression. An expression of the view that Islam is a false religion would no doubt offend some, perhaps many, Muslims. But an expression that Christianity is the true religion would by implication assert that Islam is a false one. Any assertion of a proposition is an assertion that its denial is false. No public discussion of any sort could take place if those whose assertions are denied by others could invoke “offense” to silence their opponents.
Jeremy Waldron, a law and political-theory professor at NYU and Oxford, has recently published a book, The Harm in Hate Speech, in which he makes a case for banning such speech. His definition of hate speech parallels that of the ICCPR, and he cites approvingly the similarly worded prohibitions in Canada, Denmark, Germany, New Zealand, and the United Kingdom. But he makes clear that the harm in hate speech is not its offensiveness. Rather, the harm is that it undermines the belief that one will be accorded equal standing and be justly treated by society, and that one will not be discriminated against, humiliated, or terrorized by other citizens. For Waldron, a well-ordered society conveys assurances to its citizens that these things will not happen. Hate speech undermines those assurances.
How exactly does Waldron envision the route by which hate speech accomplishes this? Although I do not find him clear on this point, there are really only two ways that hate speech can undermine one’s sense that one will be regarded as a citizen with equal status and will be treated fairly. One way is for hate speech to convey information to its targets that the author of the speech is hostile to or has contempt for them. In other words, when one sees hate speech directed at one’s group, one has information about others’ attitudes that perhaps one did not have before. The harm is essentially caused by discovering what others think. If that is correct, it is surely a dubious basis for prohibiting hate speech. For the prohibition does not banish the attitude conveyed but only keeps its existence from being known. The ban may produce a sense of security, but it will be a false sense.