BY NADINE STROSSEN WITH JOHN K. WILSON

Nadine Strossen, the former ACLU President (1991-2008) and Professor of Constitutional Law at New York Law School, is the author of a new book, HATE: Why We Should Resist It with Free Speech, Not Censorship (Oxford University Press). She will be speaking May 5 at Politics and Prose in DC, May 7 at the Cato Institute, May 8 at the Maryland State Library in Baltimore, May 9 at The Clinton School in Little Rock, May 20 at the 2018 Evanston Literary Festival, May 21 at North Central College in Naperville, IL, June 5 at the Carnegie Council in New York, and June 10 at Printers Row Lit Fest in Chicago. John K. Wilson interviewed her via email for Illinois Academe and AcademeBlog:

Q: One challenge for free speech comes from harassment law: If regulating hate speech is essential to create equity in the workplace or schools, why shouldn’t it be regulated in the entire society to create more equity? Why should legal equality end at the office door?

A: Let me start with the bottom-line answer: If a specific instance of “hate speech” satisfies one of the Supreme Court’s three appropriately narrow definitions of speech that, in particular contexts, is punishable as harassment, that “hate speech” could be punishable as harassment “in the entire society,” not only in the workplace or educational settings. To be sure, two of the three types of punishable harassment––“quid pro quo” and “hostile environment”–– are most likely to occur in workplace or educational settings, because they entail the kinds of power relationships that exist in those settings. However, these concepts could be enforced in any other context in which similar exploitation occurred. Moreover, the third type of punishable harassment––which is individually targeted harassment––can be invoked to punish any expression “in the entire society,” including “hate speech,” that unduly interferes with the target’s freedom and privacy.

An explanation of the foregoing conclusions requires nothing short of a summary of the most fundamental First Amendment principles, which I’m happy to provide! It gives me an opportunity to illustrate a major point that the book discusses, which is not nearly as well-known as it should be: that “hate speech” is neither absolutely protected nor absolutely unprotected. Rather, our law draws sensible distinctions between protected and punishable “hate speech.”

I (along with other commentators) regularly put the term “hate speech” in quotation marks to underscore that it has no specific definition, precisely because the Supreme Court never has identified or defined a category of speech with a hateful message that is excluded from full First Amendment protection solely due to its message. To the contrary, the Court repeatedly has held that permitting government to punish or regulate speech that conveys a hateful, hated message would violate the cardinal “viewpoint neutrality” principle, which the Court has hailed as the “bedrock” of our free speech jurisprudence: that government may generally not punish speech based on disapproval of its viewpoint or message. The Court unanimously reaffirmed that core principle in one of its most recent rulings, in June 2017. It struck down a federal statute that barred trademark protection for ethnic slurs, and thus allowed an Asian-American rock band to trademark its name, “The Slants,” which band members had chosen in order to reclaim the term and assert pride in their Asian heritage.

In this key sense, “hate speech” is distinguishable from constitutionally unprotected obscenity, a subset of sexually oriented expression that the Court has defined in terms of its content and held to be an exception to the general viewpoint-neutrality rule. I should note that the Court-created obscenity exception to general First Amendment principles has been heavily criticized, including by many Justices.

Although “hate speech” may not be regulated based on dislike of its viewpoint or content, it––along with speech conveying other messages––may be regulated if, in a particular context, it directly causes specific, imminent serious harm, which cannot be averted by any means short of punishing or suppressing the speech. Sometimes this situation is summarized by stating that the speech poses a “clear and present danger” or an “emergency.”

Since the 1960s, the Supreme Court has increasingly strongly protected speech whose messages have been widely disapproved or viewed as controversial. Not coincidentally, many of these decisions arose in the context of the Civil Rights movement, protecting expression of civil rights demonstrators, whose ideas were feared and hated in many communities. Since then, the Court has reduced the number and scope of exceptions to the viewpoint neutrality principle. Likewise, it has enforced the emergency principle strictly, requiring speech to comply with demanding criteria in order to be punishable consistent with that principle. This is true of the three types of expression that may be punished as harassment.

While we use the term “harassment” relatively loosely in colloquial conversation, the Supreme Court has defined expression that may be treated as punishable harassment narrowly, to ensure that the expression is punishable not solely because its viewpoint is disliked, but rather because it directly causes specific imminent serious harm.

As I already noted, the Court has recognized three types of harassing expression that may be punished if they meet the pertinent criteria. Quid pro quo harassment is a type of extortion by someone in a position of power. This occurs, for example, if a professor says to a student, “Sleep with me and I’ll give you an A,” or if a supervisor makes a similar statement to a workplace subordinate. Such extortionate expression may be punished consistent with both the viewpoint neutrality and emergency principles; it is being punished not because of dislike of any idea it conveys, but rather because of the direct harm it causes to the relatively powerless person it targets.

Second, expression that directly targets an individual or small group of individuals in a manner that unduly harries or intrudes upon their freedom or privacy may be punished as harassment. This kind of harassment can occur in any setting “in the entire society,” and violates criminal laws, as well as affording the basis for a tort lawsuit. A classic example would be repeated unwanted telephone calls in the middle of the night.

Third, the Court has recognized that expression may constitute punishable “hostile environment” harassment in the workplace or educational setting. Any conduct, including expression, may be punished as hostile environment harassment in the workplace if it is sufficiently “severe or pervasive to alter the conditions of employment and create an abusive working environment.” Likewise, the Court has enforced parallel standards in the educational setting. It has stressed that offensive expression alone usually will not give rise to a claim of hostile environment harassment, and that it could do so only if the expression were “so severe, pervasive, and objectively offensive, that it effectively bars the victim’s access” to the workplace or “to an educational opportunity or benefit.”

If “hate speech” (or speech conveying any other message) satisfied these strict standards, it could be sanctioned as hostile environment harassment. The federal Equal Employment Opportunity Commission (EEOC) recently settled a case in which it charged that a company’s African-American employees had been subjected to a racially hostile work environment due to multiple incidents of “hate speech”: a noose was displayed at the worksite; derogatory racial language was used by a direct supervisor and a manager of these employees, including references to the Ku Klux Klan; and the employees had been targeted with racial insults.

In contrast with the Supreme Court’s sensible concepts of punishable harassment, too many campuses have enforced a much broader concept, which squarely violates the viewpoint neutrality principle and does not satisfy the emergency principle. Specifically, too many campuses punish––and too many advocates call for punishing––any expression about sex or gender that any member of the community subjectively views as “unwelcome,” making her/him “uncomfortable.” This sweeping concept was endorsed by the Department of Education’s Office of Civil Rights and the Department of Justice during the Obama Administration and was, justly, severely criticized by many commentators, including in a scathing report by the American Association of University Professors. Critics also included prominent feminist professors and activists. As these critics observed, this distorted concept led to the punishment and chilling of even pedagogically valuable expression in classroom settings. Moreover, by suppressing expression about the vital topics of sex and gender, this wrongheaded concept of punishable harassment undermined equality values, far from promoting them. I refer to this concept in the past tense because Secretary of Education Betsy DeVos suspended the pertinent regulations, which her department is now in the process of re-examining.

 

Q: Do you believe that free speech needs to have particular protection on college campuses, above and beyond anywhere else? How do you respond to critics who argue that the desire for high-quality speech on campus should override the belief that anyone, no matter how stupid or offensive, should be allowed to speak at a college?

A: As the Supreme Court has recognized, freedom of speech on college/university campuses is especially important, along with academic freedom, not only for the sake of the students and faculty, but also for the sake of our entire society. This is so because higher educational institutions play such key roles in promoting knowledge, research, and the search for truth, and also in preparing students to be effective and engaged members and leaders of the larger community.

The fundamental viewpoint neutrality principle should be enforced as strictly on campus as elsewhere. Nonetheless, universities could decide, for legitimate pedagogical reasons, to impose certain viewpoint-neutral limits on determining which speakers may be invited to address campus audiences in campus forums. After all, there are only a finite number of speakers who can be accommodated, given space and scheduling constraints. While the university could offer these limited speaking slots on a first-come, first-served basis, it could also make a pedagogical determination that it would be more educationally valuable to allocate them according to certain viewpoint-neutral criteria. For example, it could require that any speaker be invited or sponsored by members of the campus community, rather than permitting speakers with no university connections. As another example, the university could require that any speaker must make a certain portion of the allotted time available for audience questions and comments. Likewise, it could require that any speaker must permit media coverage of the event.

Even assuming that a particular speaker is “stupid or offensive,” such that her/his remarks do not constitute “high-quality” speech, it could still be educationally valuable for students and other campus community members to have the opportunity to listen to and engage with that speaker. For instance, such a speaker might play an influential role in our society, notwithstanding views that many would consider “stupid or offensive.” In any such case, it would be valuable for members of the campus community to hear the speaker’s ideas and to subject them to the exposure, analysis, and rebuttals that would be facilitated through the speaking engagement. In other words, far from endorsing the speaker’s ideas and making them more likely to gain support from campus community members, such a speaking engagement might well increase opposition to those views not only in the campus community, but also beyond.

I should note that private colleges and universities are not bound by the First Amendment, since the Constitution (with a few exceptions) governs only public sector individuals and institutions, including public higher educational institutions. Nonetheless, most private higher educational institutions undertake to honor the same basic academic freedom and free speech principles as their public counterparts, as being integral to their institutional missions. To cite one prominent example, the University of Chicago recently adopted a set of robust free speech principles, which have served as a model for other colleges and universities.

 

Q: You seem to accept defamation law as a legitimate restriction on free speech, as the courts have. But if hate speech arguably causes greater social harms than defamation and is less valuable speech, why shouldn’t it also be subject to legal regulation? Why should wealthy white celebrities get to have courts silence speech that harms them, but maligned minorities do not?

A: Speech that satisfies the sensibly strict standards for defamation satisfies the emergency principle, and is not punishable solely because its viewpoint is disfavored. Specifically, to constitute punishable defamation, speech must constitute a false statement of fact that injures someone’s reputation, causing tangible economic damage. Moreover, if the speech is about a public official or public figure, it cannot be punished unless the speaker intentionally or recklessly lied. These demanding prerequisites for defamation actions mean that it is very hard for “wealthy white celebrities . . . to have courts silence [defamatory] speech that harms them,” even when it does in fact harm them. This is precisely the reason why Donald Trump, both as candidate and as President, has repeatedly advocated revising our defamation law, to make it less unfriendly to powerful defamation complainants.

In fact, it would be easier for a “maligned minorit[y]” group member who is not a “wealthy celebrity” to recover in a defamation action than for “wealthy white celebrities” to do so. That is because non-celebrities will prevail without having to show that the defamatory lie was told intentionally or with reckless disregard for the truth; in contrast, they need only show that the defamatory lie was told negligently, or without reasonable care about the truth.

In contrast with individual defamation claims, which may proceed in accordance with the principles outlined above, group defamation claims have implicitly been ruled inconsistent with key First Amendment principles, including the viewpoint neutrality rule. The Supreme Court has not had occasion to declare this explicitly. Nonetheless, experts concur that, in a series of cases, the Court has implicitly overruled its 1952 Beauharnais v. Illinois decision, in which a 5-4 majority narrowly rejected a First Amendment challenge to Illinois’s group defamation statute.

Statements about groups involve generalizations, making them more akin to expressions of opinion than to the false statements of fact that constitute a prerequisite for a defamation claim. As the Court observed, “There is no such thing as a false idea.”

Far from aiding “maligned minorities,” group defamation actions would actually undermine their equality causes. Justice William O. Douglas’s dissenting opinion in Beauharnais stressed this point:

Today a white man stands convicted for protesting…our decisions invalidating restrictive covenants. Tomorrow a Negro will be hailed before a court for denouncing a lynch law in heated terms. Farm laborers…who compete with field hands…from Mexico,…a minority which finds employment going to members of the dominant religious group––all of these are caught in the mesh of today’s decision…. It is a warning to every minority.

I would also like to take issue with the question’s premise that “hate speech” is “less valuable” than defamation. By definition, defamation consists of a factually false statement that demonstrably damages someone’s reputation, inflicting tangible economic harm. Many would consider such speech to lack value.

In contrast, as I explained in response to Question #1, the term “hate speech” has no agreed-upon definition, but rather is used to stigmatize whatever message the person using it finds hateful and hated. Given the ideological diversity in our society, it is not surprising that one person’s “hate speech” is someone else’s cherished speech, which s/he might well even deem loving and of great value. For example, some Christians have sought to persuade LGBT individuals that their sexual orientation or gender identity is sinful, in an attempt to save their souls. While some LGBT individuals (and others) plausibly view this as homophobic or transphobic “hate speech,” the speakers plausibly maintain that they are motivated by love, compassion, and concern.

The epithet “hate speech” has been hurled at expression conveying a dizzying array of perspectives on seemingly every public policy issue. For example, that charge has been leveled against T-shirts emblazoned with many diverse messages, ranging from “Trump” to “Black Lives Matter.” In France, the head of an LGBT rights group recently was convicted of “hate speech” for labeling the head of an anti-gay-rights group a “homophobe.” Student government leaders at the University of California Irvine recently declined to display the U.S. flag because they thought it could be viewed as “hate speech.” Many people denounce the Confederate flag as “hate speech,” whereas others consider such denunciations to constitute “hate speech.” Etcetera, etcetera. Given the malleable, limitless concept of “hate speech,” one can hardly claim that such speech has little or no value.

To the contrary, as the foregoing examples illustrate, the label “hate speech” is consistently applied to the category of speech that the Supreme Court has always held to be the most valuable in our democratic republic: speech about public affairs. As the Court declared: “Speech concerning public affairs is more than self-expression; it is the essence of self-government.”

 

Q: Many of your arguments seem aimed at convincing left-wing critics of free speech. Do you think leftists in the US today are a greater threat to free speech (and have a declining devotion to it) than conservatives?

A: Public opinion surveys, as well as anecdotal evidence, indicate that those on the liberal end of the political spectrum tend to be more supportive than others of censoring hateful speech that conveys discriminatory views. After all, arguments in favor of “hate speech” restrictions maintain that such restrictions would promote various liberal values (which I personally share), including: equality, dignity, diversity, and inclusivity. Therefore, it is important to explain that censoring “hate speech” does not effectively promote these values, but in fact might well undermine them. For this reason, many human rights activists in other countries and in international organizations have become increasingly critical of the “hate speech” restrictions that they have observed in operation. Accordingly, they have called for greater use of non-censorial alternative measures for countering hateful, discriminatory attitudes and actions, including vigorous counterspeech and enforcement of anti-discrimination laws.

While liberals on the whole tend to be more supportive of laws censoring “hate speech,” conservatives on the whole tend to be more supportive of laws censoring other speech whose viewpoints they abhor, according to public opinion surveys, as well as anecdotal evidence. Expression that conservatives are more likely to favor censoring include burning the U.S. flag, athletes taking a knee in protest of racial injustice, and Black Lives Matter demonstrations.

Writer Nat Hentoff well captured the tendency of most people to advocate censoring the expression of views that they especially detest in the title of a book he authored: Freedom of Speech for Me, But Not for Thee; How the Left and Right Relentlessly Censor Each Other. This general tendency is precisely why the viewpoint neutrality and emergency principles are so essential; absent the constraints they impose on officials’ censorial power, officials would inevitably exercise that power to suppress whatever messages are relatively unpopular and whatever speakers are relatively disempowered. We certainly saw that pattern during earlier periods in U.S. history, when the Supreme Court permitted government to censor speech that was feared to pose a vague threat of harm; that power was wielded to suppress speakers who challenged the status quo and advocated law reform, including abolitionists, suffragists, civil rights protestors and anti-war demonstrators.

 

Q: What do you see as the state of free speech of America today? Are the courts, the political leaders, the media, and the general society moving toward greater protection of free speech, or do you think liberty is under greater threat today than in the past?

A: In recent decades, the Supreme Court has moved toward greater protection of free speech, on the whole, than at any time in U.S. history. Notably, Justices across the ideological spectrum have consistently supported freedom for many kinds of controversial expression, including ideas that are both hateful and hated. For example, in 2011 the Court upheld the right of protestors to picket outside funerals of slain military veterans with signs conveying messages that were virulently anti-Catholic, anti-gay, and anti-military, even though the Court recognized that this expression would “inflict great pain” upon the deceased veterans’ family members and friends. Moreover, the Court has strongly enforced the speech-protective viewpoint neutrality and emergency principles, and sharply reined in previously recognized exceptions to these principles. For example, in the funeral protest case, the Court explained that, “As a Nation we have chosen. . . to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

I have not read any studies about the media’s stance toward free speech. However, I assume that they generally tend to be supportive of robust free speech, which after all is integral to their own mission.

When it comes to political leaders and society in general, evidence indicates at least rhetorical support for free speech in general, but a willingness – even eagerness – to suppress particular speech whose ideas are disliked, or that is feared to potentially contribute to some harm, even if it does not satisfy the emergency test. This is the pattern that was captured by Nat Hentoff’s book title that I cited in response to the prior question. After all, it seems like just plain common sense that speech conveying negative ideas might lead to negative consequences.

Only after considering the consequences of permitting government to suppress speech because of such a feared “bad tendency” can we appreciate that investing officials with such sweeping discretionary power may well do more harm than good. Among other problems, it predictably leads to disproportionate censorship of speech by political dissidents, advocates of law reform, and members of minority groups. As Justice Brandeis observed, in advocating the strict emergency test in lieu of the bad tendency test that the Court enforced in his era: “Fear of serious injury cannot alone justify suppression of free speech. . . . Men feared witches and burnt women.” He went on to explain why we must protect freedom even “for the thought that we hate” (quoting that other pioneering free speech champion on the Court, Oliver Wendell Holmes) and that we fear to have a bad tendency:

[N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.