This is the pre-prepared portion of the talk I gave to the Hartford County Bar Association for Law Day this year:
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LAW DAY 2019
HARTFORD COUNTY BAR ASSOCIATION
WHAT’S THE PROBLEM WITH HATE SPEECH?
We’re here today to celebrate Law Day under the banner of “Free Speech, Free Press, Free Society.” I wonder how much of the freedom we celebrate today is at risk as we approach another electoral cycle deeply divided. On the horizon I see a fundamental challenge to freedom of expression in our fascination with hate speech.
Philosophic preamble
But first, some semi-philosophic remarks to provide orientation.
The 18h-century philosopher Immanuel Kant said two things filled him with wonder: the starry heavens above, and the moral law within. I’d add a third thing – the marvel of legitimacy as expressed daily in the rule of law. We submit to the law’s sovereignty, permitting perfect strangers to tell us what to do, how we may live. In a healthy society, we do so in part willingly, believing the law to be just.
So what is legitimacy?
A simple example will suffice.
If a stranger approaches you with gun drawn and demands your wallet, odds are you will give it – assuming you yourself are unarmed. You do so out of fear in response to a show of superior force.
But suppose that stranger is dressed in what you perceive to be a policeman’s uniform. Same gun drawn. Same demand. Odds are you produce your wallet. You are still afraid. But I suspect some part of you also recognizes the officer’s right to issue a command – he has authority. That added sense of right is your sense of legitimacy.
Max Weber taught legitimacy is spawned by three means: charisma, tradition and rational rules. We live in a constitutional republic, and locate the source of authority in elections and government under the rule of law. We depend on courts and lawyers to make it all work.
We cannot live together without a sense of legitimacy supporting our institutions. Recall Thomas Hobbes and the state of nature, where life was “nasty, poor, solitary, brutish and short.” That’s anarchy, a war of all against all.
Living together in something approaching peace and harmony requires more. Cicero nailed it two millennia ago: a commonwealth, he said, isn’t just a collection of people, it is group bound together by common interests and a common conception of right.
The rule of law embodies our common conceptions of right. As lawyers and judges we are custodians of the public trust. Our work makes life together possible so long as society as a whole has minimal respect for the rules of law to which we have devoted our lives.
A legitimation crisis
I suggest that we are a society in crisis, at a turning point. We lack a consensus on fundamental conceptions of right. There are red states and blue states. Immigration is either a stream that feeds us and makes us stronger, or a tidal wave of invaders that threatens to inundate us. Suicide rates for middle-aged white males in the Midwest soar as our demographics change; pollsters refer to a loss of hope, of confidence in the future. The gap between rich and poor grows. The opiate crisis kills by means of self-medication. Although unemployment levels have fallen, real wages remain stagnant. Big data and artificial intelligence grow more influential each day, spawning fears of a new era of surveillance capitalism. We elect Donald Trump as president, an event that still gobsmacks plenty of us.
There’s something happening here, what it is ain’t exactly clear, we used to sing a lifetime ago.
I’d suggest we are at risk of having lost a common conception of right, to use Cicero’s language. Our commitment to open-ended constitutional norms remains intact, but our various understandings of those norms is driving us into conflicting tribes.
Consider Black Lives Matters and claims of unreasonable force under the fourth amendment. We all agree that police officers should not use unreasonable force. However, we no longer agree on what’s reasonable. Thus, the great frustration on the streets when a prosecuting authority concludes the use of deadly force was justified; thus the outrage in law enforcement circles when a police officer is charged criminally for making a judgment call. I’ve represented folks shot by police officers, and I’ve represented police officers accused of misconduct. The divide separating police and community is often vast – that gap is the legitimation crisis. Sadly, in some communities, folks don’t, or, perhaps even more troublingly, can’t, distinguish between a gangster with a gun and a police officer brandishing a weapon.
A similar dynamic is taking shape in the area of free speech. I’m talking now about the topic that brings me here today: hate speech.
What is hate speech?
Speech, expressive activity, that we deplore is hate speech. A Nazi marching through a community of holocaust survivors is hate speech. So is speech directed at disavowal of another because of the other’s identity. We enhance certain criminal penalties if the crimes are animated by hatred. We call these crimes hate crimes.
I hate hate crimes; I worry they lay the foundation for a new exception to the right to speak freely.
Hate speech is a misnomer. It should really be called fear speech. People don’t hate gratuitously. They hate what threatens them; they hate what they fear. Focusing on the fear promotes discussion, discourse; focusing on the hatred makes it unsafe to express fear, and makes an enemy of the state and those who enforce the law.
An example?
I confess to being an Islamophobe. I worry that Islam does not reflect a genuine commitment to pluralism. In recent years, when Islamic folk have asked me to represent them, I put the issue on the table.
I want you to know this about me, I tell them. I believe I can be loyal to you, but you may have doubts.
The discussions we have transform me by degree. I am happy to report that to date, no one has decided they will not let me represent them. They trust the humanity in me, even as I see more clearly the fears, interests and humanity that bring them to my door.
Talking about our fears places them in context, you see. That’s why I am not outraged by Russian interference in the 2016 election. Did they study us, discover our weak points, and then seek to press our hot buttons? Thank you, I say, for making us talk about things we’d rather ignore.
How many of you were surprised when Donald Trump was elected president in 2016?
It was shocking, right? I mean the orange hair wasn’t bad enough. But the comments, the demeanor, the lack of experience. Reality TV captures the White House? Really?
Trump is a canary in the mineshaft.
The real question is what made his election possible? I’d suggest fear. He has an inchoate genius for identifying fears and mobilizing voters around their fears.
I know. I voted for him. Why? I heard Hillary talk about what white folks owe people of color. As an old white man, I’m tired of hearing about my privilege and what consideration I owe to others on account of my accidents of birth. So I voted my skin. I chose the old white man, even though I didn’t think he was qualified.
Alex Jones – The power of the mob
And now I represent Alex Jones and Infowars in defense of claims brought by surviving families of the Sandy Hook shootings in 2012. Mr. Jones has publicly entertained doubts about whether the shootings took place, and he’s hosted others who call it all a hoax on his television and radio broadcasts. He’s referred to as a conspiracy theorist, and has been de-platformed from Facebook, Twitter and Paypal, among others, for his “hate” speech.
Why would I represent him?, a prosecutor asked he other day.
Because, I told her, I can walk away from what Alex says if I find it offensive, but I can’t walk away from a warrant if the state decides to search my computer because what I said is hateful.
Just this year, the NAACP sought to have me criminally prosecuted, questioned my fitness to practice law, and condemned me publicly for posting on Facebook a photo of Coors beer cans surrounding a Budweiser bottle draped in a noose. “Ku Klux Coors,” I called it.
I still think the photograph was funny, even if I will never again take a case pro bono from the NAACP. I remain proud of the hundreds of cases in which I have represented people of color, even as I continue to do so.
There is no mob quite so frightening as a self-righteous mob.
Defending Jones is easy as a matter of law, even if doing so in the shadow of Sandy Hook as a Connecticut lawyer has attracted scorn. I am a lawyer, you see. I defend the unpopular, ensuring that no one’s life, liberty or property is taken without due process of law. You are here because you share that commitment.
The threat posed by “hate” speech
Send me a picture of your grandchild naked in a bath tub and odds are you will not be prosecuted for promoting child pornography. But send me such a picture of a child you don’t know, and you might be prosecuted.
We draw a line between permitted and prohibited images by discussing “serious literary, artistic or scientific” purpose. But even Justice Potter Stewart had difficulty parsing this line – “I know it when I see it,” he famously said. Our law speaks in generalities about such things, deferring to inchoate “community standards.”
What about speech? Is there social pornography, speech that serves no serious literary, artistic, scientific or political purpose? I’m worried that the time will soon come when courts entertain the prospect.
Consider conspiracy theories. Of what value is the outlier’s speech? We here in Connecticut know Sandy Hook happened; we know a thing or two about 9/11, too, don’t we? But vast segments of people in different regions of the country still harbor doubts about what happened in Sandy Hook and in New York. Do we silence them because they just can’t be serious? They aren’t artists? They’re not researchers or we don’t like their politics? I've debated good friends, prominent native American lawyers, who doubt what I take for granted about 9/11.
Do we silence them because they make us uncomfortable – we know their speech to be lacking in value when we hear it?
Doing so just drives the fear that animates such speech underground, and confirms the fears of those we silence. The antidote to the speech we hate is more speech, not less, the Supreme Court has reminded us again and again.
Unpopular speech, the outlandish conspiracy theory, is simply an explanation of the world’s mysteries and horrors rendered in terms that reflect the speaker’s lack of trust in norms the rest of us take for granted. They are the theodicy of the dispossessed. Rather than shunning or scapegoating outliers, we should seek to build bridges based on reason and common values.
Social media outlets harvest our data, sell it to others, and now, shockingly, seek to censor what we can and cannot say on their platforms. We are becoming habituated to behavioral compliance. How long until the government joins hands to keep the peace?
Just last night, Facebook announced a permanent ban of speech its overlords deem offensive. Among those banned for life, Alex Jones. The algorithmic giant is opaque; and it is a quintessential public form seeking to link all of us, but arrogating to itself the right to exclude us if we don't dance to the puppet-master's tune. Behold “Big Other,” the very harm Shoshana Zuboff warns against in her brilliant new book, The Age of Surveillance Capitalism. I trust Alex Jones -- what you see is what you get. I can't say the same of the overlords of social media. For my money the most dangerous man in America just now is Mark Zuckerberg.
I like free speech. The more outrageous the better. Let’s talk about race, class and gender, exploring every theory, no matter how the theories make us feel. Lancing fear makes trust possible, and, as Cicero intimated, sharing common values, trust, makes civilization possible.
Conclusion
So long as we resort to reason and principle rather than violence to resolve our disputes, we lawyers and judges will always be busy. Lawyers are ambassadors for the interests they represent; judges apply neutral principles to the disputes that bring people to court. The fierce exchange that takes places in a court of law is a sign of civilization at its best.
So when I walk into your courtroom next to a man reviled in press, understand that I come on his behalf as his representative asking you for just and fair decisions. When I cross the aisle to shake your hand before or after a long day of objecting and wrangling, understand that I come as a brother. Forgive me if I fight too hard -- I was abandoned by my father as a child, that wound forms me; I’m wired to care.
The law wearies me, and as I grow older, I wonder sometimes just how much fight I have left. What once looked infinite no longer does so. But I depend on the rule of law for the life I live; I remain in awe of the law. I suspect I’ll keep fighting for as long as I am able.
The rule of law, I say, is one of the world’s wonders. I, for one, am proud to serve it. I suspect you are, too.