As a boy in Invercargill, Jeremy Waldron was captivated by one volume of his Oxford Junior Encyclopedia: the one entitled Law and Order. It was a prescient choice for a man who has become an esteemed legal and political philosopher and in 2010 stepped into one of the same Oxford University’s most prestigious positions, Chichele Professor-Elect of Social and Political Theory at All Souls College.
Waldron studied at Oxford in the early 1980s, but in the intervening years lived mostly in the US, holding professorships at Berkeley, Princeton, Columbia and New York University. His intellectual home, however, has remained the same: the intersection of law and political philosophy, disciplines that he says “overlap at their centres rather than their edges”.
He studied philosophy and law at the University of Otago, qualifying as a barrister and solicitor in 1978, but never practised law. He was drawn instead to its philosophical roots and in recent years turned his attention to the issue of hate speech.
Discussions of hate speech hinge on a conflict between two values: the right to freedom of expression and the right to freedom from harm. When these values clash, as they inevitably do, liberal societies must decide which one has the right of way. New Zealand, like the UK, France, Germany, Canada and Australia, sets a limit on freedom of expression by outlawing hate speech, which our Human Rights Act defines as “threatening, abusive or insulting” speech “likely to excite hostility against or bring into contempt any group of persons … on the ground of [their] colour, race, or ethnic or national origins”.
In the US, the treasured First Amendment means that any law restricting freedom of expression is deemed unconstitutional, a proposition that is not without its controversies. “We still have the scourge of occasional cross-burnings,” says Waldron, on the phone from New York. “It might only affect people on a particular street or neighbourhood, but it summons up nightmarish resonances – the prospect of a return to the racial terrorism that disfigured this country for 100 years after the abolition of slavery.”
A 2003 Supreme Court decision held that, in and of itself, cross-burning did not meet the threshold of demonstrating “an intent to intimidate”. So, as things stand, the Ku Klux Klan remains free to say hateful things about minorities, even when the aim is to produce distress, contempt and loathing.
Waldron recognises that many Americans are proud of their First Amendment rights and that change is unlikely anytime soon. Yet in his influential Holmes Lectures at Harvard University, he offered a defence of hate-speech legislation and wondered aloud whether the US might not learn something from the democracies of Europe and the Commonwealth.
“We use the law where there are crucial interests that need to be protected,” Waldron says. “Even though the law can’t turn haters into lovers; even though it can’t change the morals or attitudes of those who speak hatefully; the crucial thing is the dignity, the assurance and the tolerable life circumstances offered to vulnerable groups. That’s the law’s main target.” As the word “assurance” implies, the very existence of hate-speech legislation offers peace of mind: it provides boundaries; an assurance that things will not be allowed to get out of hand.
In New Zealand, hate-speech legislation has not been punitive. Last year the Human Rights Commission fielded about 500 race-related complaints and enquiries – about a quarter in reference to hate speech – but in the 19 years that the legislation has existed, not a single prosecution has been made.
For many of us, media controversies are the most recognisable tests of free speech: Paul Henry’s Breakfast comments about Indians, and Michael Laws’s swipes at journalists. In Waldron’s view, though, these belong to the low end of the spectrum, where the law doesn’t need to play a role. In between the power of law and the effect of social sanctions is the territory of employers, particularly those, like TV channels, with public exposure.
“Even in countries that don’t legislate against hate speech, like the US, the remarks that Paul Henry made would probably have cost him his job. I don’t think that’s inappropriate – his remarks were entirely offensive – but it would be inappropriate to make remarks like that the focus of legislation. Law is just one among many mechanisms that society has to control the boundaries of tolerable and intolerable behaviour. We should probably prosecute only the most egregious, most vicious examples [of hate speech].”
The worry, of course, is that by restricting speech, even the clearly obnoxious instances, we endanger the kinds of speech we value. Dissent, criticism and artistic controversy are important markers of democratic health. The 1988 novel The Satanic Verses prompted Iranian leader Ayatollah Khomeini to issue a fatwa, pronouncing a death sentence on author Salman Rushdie. For Waldron, the case is useful for clarifying the bounds of permissibility.
“I would draw a line, if possible, between something that is offensive to a religion and something that is degrading. Rushdie’s book … offended a great many Muslims and it offended Islamic sensibilities. But then you have libel, degrading the dignity of a whole group of people – that’s something different.
“Although you may offend me when you cast aspersions on the founder of my religion, you don’t necessarily degrade me, or lessen my social standing, or make it more difficult for me to live my life. So, saying, for example, ‘all Muslims are terrorists’ seems to me something we should be very careful about and probably restrict. Saying something about the Prophet would be offensive but permissible.”
This position is unlikely to impress the absolutists who regard the right to free speech as an all-or-nothing matter. For Waldron, though, such matters are rarely that simple. But he wonders whether the absolutists are the best judges of the effects of hate speech.
“They are really strutting out their own ability to tolerate hate speech. Yet the ability of a well-heeled, well-insulated white liberal person to tolerate hate speech is quite a different matter to the people who are being libelled; to the people who bring up their children in the midst of such insults and have to explain to them what’s going on.”
The very idea that rights are absolute is not uncontroversial, especially for civil and political rights. Certainly, an ideal democracy in an ideal world is built on an ideal set of rights, one of which is the right to free speech. But in the real world, where rights will inevitably clash, it isn’t obvious that limiting a right necessarily means limiting the quality of democracy.
“For instance, if you limit the right to vote to a certain class of people, then you are beginning to attack the fundamentals of democracy. If you limit the basis on which parties can be formed, as countries like India do, to ensure that parties can’t embody religious or inter-communal antagonisms, then you will affect democracy, but perhaps in a healthy way.”
Waldron’s pragmatism recognises the complexities of the political world. “The law is an important repository of moral knowledge. Its choices and its intelligent consideration of choices bring into focus what moral and political philosophers want to talk about.”
See also www.freespeechdebate.com.
New Zealand-born David Hall is a doctoral researcher in political theory at the University of Oxford.