The issue of hate speech legislation is, in my view, a difficult one. There are good arguments on both sides and, among the respondents, the critics have flagged a number of important issues.
Of course some of the critics are just dismissive: “Is Waldron’s book … a joke?” asked Ron Hansing of Columbus, Mo. “God help us from this kind of thinking!” And Robert Cicero of Tuckahoe, N.Y., wrote: “Shame on the whole lot of you” for even discussing this; the discussion, he said, “is yet one more assault on the US Constitution.” Or as Paz from New Jersey put it, “What part of ‘shall not be infringed’ do you fail to understand?”
But even those who love the First Amendment should be interested in at least understanding the things that can be said on the other side, if only to reinforce their sense of what’s distinctive about this country’s commitments. A large proportion of the other advanced democracies in the world combine a commitment to free speech with rules prohibiting hate speech. Isn’t it worth considering how they do this? And why? No one is burning the constitution here. We’re just trying to think about it.
Democracies like Britain, France, Germany, Denmark, Canada and New Zealand all prohibit hate speech of various kinds. They do so for what they think are good reasons. It is worth thinking about those reasons. Are they good reasons that (from an American First Amendment perspective) are just not strong enough to stand up against our overwhelmingly powerful commitment to free speech? Or are they simply bad reasons?
I think some of the things people cite in favor of hate speech regulation are bad reasons — like trying to protect people from being offended and annoyed. I agree with Stanley Fish about that. But some of the reasons are about dignity, not offense — I spend a lot of time in the book thinking aloud about that distinction — and these reasons are worth taking seriously, even if ultimately we think they are trumped by the value of free speech.