Hating Hate Speech

The controversy—if we may call it that—over Phil Robertson’s views on homosexuality has drawn attention to the workings of the marketplace of ideas.

In particular, everyone is now debating what it is and is not permissible speech, in polite conversation and in public.

Most people agree that the Robertson family does not have a constitutional right to have a television show. The A & E network does have a right to suspend one of the show’s cast members.

And yet, the issue does not really seem to be about whether or not Congress may make a law abridging freedom of speech. It’s not about government intruding in the marketplace but about special interest groups shutting down certain ideas by shunning those who articulate them. Or better, by attacking those who advertise on such shows.

Many gays have no problem with the Duck Dynasty having a television show or with Phil Robertson being on it. Camille Paglia has denounced the effort to repress speech and Andrew Sullivan does not believe that the patriarch of the “dynasty” should be suspended for speaking in character.

For his part Sullivan preferred to engage a debate over what he called “fundamentalist” views of homosexuality. Which is the right way to do it.

His discussion would have been more persuasive if he had not said this:

This is a fascinating glimpse into the fundamentalist mind. You’ll notice that, for the fundamentalist, all sin – when it comes down to it -  starts with sex. This sexual obsession, as the Pope has rightly diagnosed it, is a mark of neurotic fundamentalism in Islam and Judaism as well as Christianity. And if all sin is rooted in sex, then the homosexual becomes the most depraved and evil individual in the cosmos. So you get this classic statement about sin: “Start with homosexual behavior and just morph out from there.”

In truth, the notion that original sin, as theologians call it, has something to do with sexual lust dates to Saint Augustine. You do not get too much more mainstream than Augustine. One is shocked to discover that Sullivan does not know this.

Obviously, the Bishop of Hippo was not referring to homosexuality, per se. He was referring to all non-procreative sexual activities.

It is true that homosexuality is called an “abomination” in the book of Leviticus, but that book also says that adulterers should be stoned to death.

In today's Judeo-Christian  world even those who disapprove of homosexuality do not believe that anyone should be persecuted or punished for it. Many of the same people disapprove of adultery but they do not believe that adulterers should be stoned to death. Yet, in some modern religions that homosexuality is taken to be a capital crime and adulterer are stoned to death. It would be good for an astute observer like Sullivan to make these basic distinctions.

One has serious doubts about whether, for anyone outside of certain not-to-be-named cultures, “the homosexual becomes the most depraved and evil individual in the cosmos.” Flights of rhetorical hyperbole do not an argument make.

Were we to consult with Dante and ask who occupies the lowest circle of Hell—surely such people would be good candidates for being the most depraved and evil individuals in the cosmos—the answer is, as you know, Judas, Brutus and Cassius… those who betrayed God and Caesar.

Clearly, homosexuals have been persecuted and brutalized for their sexual orientation, but the worst eliminationist rhetoric and genocidal manias have been directed against, for example, Jews and Armenians. And let’s not forget the abomination of slavery.

Besides, reason requires that we distinguish between what Phil Robertson said and hanging a gay man in public in downtown Tehran.

One understands that, for Sullivan, not being allowed to marry the person you love is an unspeakable act of persecution, but I cannot bring myself to equate that indignity to crematory ovens or enslavement.

For most of human history the vast majority of human beings were not really allowed to marry the person they loved. It is only recently that marriage became associated with love, but to call the marital institution a universal expression of romantic love is to profess complete ignorance of the practice of marriage.

Unfortunately, those who want to shut down all hate speech do not make the distinction. They believe that some language is so vile, so hurtful and so injurious that the government must regulate it. They believe that the government should regulate the hate speech that involves affixing demeaning labels to groups of people.

One is forced to know that these same people believe that all markets should be strictly regulated.

Peter Berkowitz summarizes Professor Jeremy Waldron's analysis:

A professor at New York University School of Law, and the Chichele Professor of Social and Political Theory at All Souls College, University of Oxford, Waldron believes that American professors of constitutional law often fail to grasp the seriousness of the harms caused by hate speech and the justification, consistent with the requirements of a free society, for barring it. Waldron is at his best in examining the pain, the humiliation, and the obstacles to the full enjoyment of the rights and pleasures of citizenship arising from speech that targets a group and ascribes to all members wicked or monstrous qualities. But typifying much progressive thought, Waldron overlooks the critical question of the competence of legislators, executive branch officials, and judges to police the content of speech while preserving liberty of thought and discussion.

While Waldron understands the harm that hate speech can inflict, he fails to address the question of what does and does not count as hate speech. And, he does not explain who is to decide what does or does not fall within the category.

Berkowitz continues:

Waldron …  is not in favor of restricting speech that merely causes offense. "The issue is publication and the harm done to individuals and groups through the disfiguring of our social environment by visible, public, and semi-permanent announcements to the effect that in the opinion of one group in the community, perhaps the majority, members of another group are not worthy of equal citizenship." It does not seem to occur to Waldron that authorizing the government to determine what counts as the "disfiguring of our social environment" effectively gives the state limitless power to endorse speech it likes and suppress speech it dislikes.

Berkowitz is correct here. I am not sure what Waldren means by “disfiguring our social environment.” I don’t believe that the social environment would have standing to bring a suit or to prosecute anyone. In truth, its about attacking and trying to disfigure certain groups of people. Are the aggrieved parties to decide what has or has not abridged their rights? Does GLAAD speak for all homosexuals? Should the question be decided with class action suits? If so, how much of the determination will be based on personal sensitivity.

One person many might be grievously harmed by words that another might easily laugh off.

The difficulty, as I see it lies, in taking laws that have been written to protect individuals and applying them to groups. In particular, to groups that might not even call themselves groups.

When Phil Robertson lumped together adultery and bestiality, should he have been attacked by an adultery advocacy grouip for having defamed them and prevented them from enjoying their constitutional rights?

If we accept that certain derisive slurs are hurtful, is it also hateful to describe, as Robertson did, certain sexual activities with non-vulgar and non-obscene terms?

If Robertson’s language constitutes a firing offense because it damages the reputations of certain groups of people, should those who have been attacking his reputation be sued for defaming his reputation?