Hate Speech


Rochelle Gurstein

In the Fall of 2015, I attended a symposium about “little magazines” at the New School. One of the speakers, a youngish creative writing teacher at Columbia, arrived late and she apologized to the audience, explaining that she had been delayed because she had been talking to students in her class who were extremely upset about the “controversy” at Yale that had erupted over appropriate Halloween costumes. As a person outside of the Academy, this was the first time I heard about “safe spaces.” It was new to me and I was puzzled, for I was living in a world where I thought that the doctrinal devotion of the “advanced” wings of the Academy and the art world to “transgression” and “subversion” was still a going thing. How could students at Columbia and Yale—and I would also learn at the New School—be “upset” that an associate master of a residential college sent out an email raising the question whether the administration was being paternalistic by telling students which Halloween costumes they should or should not wear?

When, during the discussion period, I tried to formulate a question to this effect, I was told by the creative writing teacher that students feel a hostile environment is created by costumes that insult and demean “other peoples” and their cultures. A student in the audience announced that, as an African-American female, she resented being silenced by those in power who act like free speech is more important than the feelings of people who are threatened by it. The question arose in my mind, when did the rather trivial matter of wearing a Mexican sombrero or Indian headdress on Halloween become elevated to the status of exercising “free speech”? But before I could ask this, younger members on the panel and in the audience were explaining how claims of so-called reasoned argument—especially when it came to free speech—should not trump the feelings of the vulnerable who are made to feel “unsafe.” I saw men on the panel who were political activists in the ‘60s and as committed as ever to democracy and social justice turned into hopeless, oppressive old fogies on the wrong side of the struggle for … I wasn’t sure what. I was surprised by how ardently at least some students and teachers felt about the need for safe spaces and speech codes and apparently Halloween costume codes and how these scaredy-cats were anything but shrinking violets.

This incident came back to me as I was re-reading David Bromwich’s penetrating analysis of the first round of the “Culture Wars” in the 1980s and early’ 90s in his Politics by Other Means. I found the book dispiriting since so much of what he warned against twenty-five years ago—in particular, the coerciveness of political correctness, the way it encourages “group thinking” and threatens “independence of mind” —has now become reality, institutionalized in the Academy through mini-bureaucracies tasked with enforcing Title IX of the Education Amendments. Bromwich could already document the way college presidents and deans of law schools were reacting—or over-reacting—to incidents of “hate speech” on campus. One concerned a student at Brown University who, in a drunken rant, spewed out curses and insults to “niggers,” “faggots,” and “fucking Jews,” though not to any particular person. President Vartan Gregorian expelled him on the grounds of “harassment,” asserting that the student “in himself and by his words constituted a violent threat to the self-esteem of the students who heard or overheard him: above all, to those who took personally the things he said. Bromwich was already able to set out the logic that would give legitimacy to "safe spaces” on campus today: “Speech, when sufficiently vile and when directed against victims who fall into a legally ambiguous class of the vulnerable, may, without ceasing to be speech, turn into the moral equivalent of physical harassment” and give rise to “paternalist interventions.”

When I heard about “safe spaces” at the New School and many times since, I did not make the connection to “hate speech.” In the 1990s, when I first began reading about this emerging legal concept, it attracted my sympathetic interest if not my allegiance. That was because I was appalled at the time by what was being defended by the principle of free speech, noting how all disputes about what might legitimately appear in public were habitually—mindlessly and ritualistically it seemed to me transformed into a courageous battle for freedom against repression. These were the days when “controversies” raged over whether 2 Live Crew’s album Nasty as We Wanna Be was obscene (a jury in Florida found it was not) and over the legitimacy of N.E.A. funding of Andres Serrano’s Piss Christ and the exhibition, Robert Mapplethorpe: The Perfect Moment, which included his notorious “X Portofolio” of photos of consensual torture and sexual humiliation that Mapplethorpe himself described as “pornographic.” I had been struck by the irreality of the many self-righteous defenses of artistic freedom advanced in these disputes and also the later one concerning the “N.E.A. Four” (Karen Finley, Tim Miller, John Fleck, and Holly Hughes), observing that the First Amendment and the fear of censorship could be drafted to defend anything. Joshua Smith’s article about the Mapplethorpe affair in the Washington Post was typical. He warned that censorship—even though what was at issue was federal sponsorship—would result in “boring, lifeless art” that would “offend no one and challenge and inspire no one.” As was often the case with champions of art-world martyrs, I could not help wondering if Smith had actually seen Mapplethorpe’s graphic photos of dehumanization and, if he had, what kind of mental contortions he had to perform to make a statement like the following:

Creativity and the human spirit require exploration and risk, as does life. Artists in a free and open society have been looked to as leaders in dealing with strong, provocative, controversial and avant-garde issues…The worst effect will be self-censorship by museums for fear of controversy. If this is permitted to happen we shall lack the free expression necessary to protect our other freedoms and to give our society vision and inspiration for the next century.

During the ‘90s, defending pornographers had become the stock in trade of the American Civil Liberties Union. Norman Siegel, then executive director of the NYCLU, sounded as robotic as Mapplethorpe’s defenders when he asserted that a New York City ordinance regulating the location of x-rated video stores and topless bars—not censoring their wares—was a victory for “the principles and values of censorship, authoritarianism, and homogeneity” over “free expression, individuality, and diversity.” Free-speech absolutism had gone so far that even Ronald Dworkin defended pornography in the pages of the New York Review of Books. Pornography, he had no trouble granting, was “often grotesquely offensive” and “insulting,” but he insisted it could not be banned for that reason “ without destroying the principle that the speech we hate is as much entitled to protection as any other.” At the time, I had not noticed that Dworkin used the phrase “the speech we hate.” Instead, I was struck by how diminished, how vacant, the principle of free speech had become. I could not help but think of all the impassioned bromides offered in defense of 2 Live Crew, Mapplethorpe, and all the others when I read his declaration, “The essence of negative liberty is freedom to offend, and that applies to the tawdry as well as the heroic.”

“Negative liberty,” “freedomto offend”: this constricted interpretation of free speech depressed me; it still does. Especially when I recalled the anything but negative version of liberty that was required to courageously speakout in public against the draft during World War I that resulted in the imprisonment of the socialist Eugene Debs and the deportation of the anarchists Emma Goldman and Alexander Berkman. Or I recalled the wild imaginative inventiveness that needed to be protected against suppression, like James Joyce’s Ulysses, which was banned in the early 1930s. I thought of the earlier understanding of free speech as the very lifeblood of social progress, which was advanced by Theodore Schroeder, a champion of the First Amendment and debunker of Victorian repression. Or there were the 1911 public lectures about birth control that landed sex reformers like Margaret Sanger and Emma Goldman in jail: “One by one advocates of mystery and blind force have surrendered to the angels of enlightenment, and every enlargement of opportunity for knowledge has been followed by the moral elevation of humanity.” Schroeder’s earnest words now feel like they belong to another world (which they do), but I knew that it was the belief that progress was on one’s side, combined with faith in reasoned argument, that had given the principle of free speech its moral depth and urgency.

Questions of free speech were very much on my mind in the '90s because I was writing a book, The Repeal of Reticence, that dealt, in part, with the history of obscenity law and I was surprised to find that, contrary to the way obscenity is understood today, the First Amendment did not enter that discourse in any consequential way until relatively recently. Neither did the notion of “offensiveness.” It was not until 1954 in an extremely influential article by William B. Lockhart and Robert C. McClure, “Literature, the Law of Obscenity, and the Constitution,” published in the Minnesota Law Review, that the principle of free speech and the harm of offensiveness got attached to obscenity and, from that point on, to one another. The reason for the article at that particular moment was the scholars’ observation that the “puritanical” regulation of “obscene” materials had degenerated into “an unsatisfactory [extra-legal censorship] system that permits one or a few states to control the reading of the nation.” To remedy this situation, Lockhart and McClure wanted to provide obscenity with a new “uniform and liberal” standard. They argued that a particular class of publications about sex— “important literary, scientific, and educational contributions” —had “social value” and thus was deserving of First Amendment protection. Here they were doing battle with the long history of First Amendment law that had rejected obscenity as utterly “without redeeming social importance.”

Lockhart and McClure knew that the “social value” of such publications would have to be balanced against the “‘evils’ claimed to justify obscenity censorship.” And this is where “ offensiveness” made its entry into the legal discourse. Given that the outer limit of free speech is now understood as “freedom to offend” —not only when it comes to “risky” art and pornography but also, it now occurred to me, to “hate speech” —it is all the more striking that its origin as a harm was within the context of obscenity law at the very moment that “ obscenity” (always in scare quotes) as something to take seriously was losing its hold on the educated public. Offensiveness, as defined by Lockhart and McClure, testifies to its diminished status: “the relatively minor harm that results from disturbing or shocking the sensitive soul,” “a temporary sense of shock, irritation, and outrage at worst.” The word that legal writers, judges, and the public at large previously would have used when describing obscenity was “indecency,” by which they meant “unfit to be seen or heard,” with all its moral and aesthetic reverberations. For earlier generations—and this was a revelation to me—indecency was anything, but private and subjective or minor and temporary; it was a powerful force of “pollution” and “contamination” that inhered in words and things and presented a grave, uncontainable threat to the quality and the character of the common world.But this more comprehensive understanding of obscenity that took account of its public dimensions, I also knew, belonged to a sensibility that at that moment in time was being debunked as “puritanical” or “Victorian.” Lockhart and McClure’s narrowing of the harm of obscenity to the private realm alone would carry the day:“This infrequent and trivial offense to the sense of decency and propriety of relatively few readers cannot possibly outweigh the values of unrestricted freedom in literature.” But not the one exception they were careful to make:“Unless the author iswritingonly'dirt for dirt’s sake’"—precisely what First Amendment absolutists, forty years later, were reduced to defending.

To free literature about sex from legal regulation, Lockhart and McClure knew they would also have to discredit other alleged"evils” of obscenity: that it incites"libidinous thoughts,“ leads to"anti-social behavior,” or lowers “general moral standards."Drawing on the research of psychologists and social scientists, they concluded that any "causal relationship” in any of these areas was “extremely tenuous.” It was this move to the realm of “factual data” that led Lockhart and McClure to put into question the longstanding belief that literature influences life. Earlier in the century, sex reformers, novelists, and their defenders were all driven by the conviction that their speeches and writings could change the world.And those who used obscenity laws to censor them did so because they feared they were right.In their zeal to unmask the ignorance and “prurient prudery” underlying censorship, Lockhart and McClure inadvertently trivialized the principle of free speech by depriving it of its reason for being: if there is no “causal relationship” between literature, readers, and the larger world, and if the harm, if there is any, is nothing more consequential than offending a few overly sensitive souls, then it becomes an open question as to why such material deserves the full force of constitutional protection and any association with the democratic commitment to open, vigorous public debate that had long been attached to this cherished liberal principle — a question, it goes without saying, that never occurred to Lockhart and McClure or to anyone else who has accepted offensiveness as the primary harm of obscenity or who has elevated it to the primary aim of free speech.The lesson: whenever we hear talk about “offensiveness,” we should know we are in the realm of things that do not matter overly much.

With this history on my mind and all the mock heroics surrounding the controversies over the tawdry sexual exhibitionism of photographers like Mapplethorpe and performance artists like Karen Finley, let alone the statement by a man who served on the jury of the 2 Live Crew obscenity trial—"You take away one freedom and pretty soon they’re all gone"—I realized, during the first go-around of the Culture Wars, that the defense of the First Amendment had become a contentless commitment.All this posturing felt unbearable to me, and that is why I was attracted, at least initially, to the feminist criticism of pornography as the subordination of women in its humiliation and brutalization of actual women in photographs and movies, but also as an ideology, what Susan Brownmiller memorably described as “the undiluted essence of anti-female propaganda.” This understanding removed obscenity from the innocuous status of “victimless crime,” to which it had been relegated in the 1960s—which seemed to me a step in the right direction. And I was particularly interested in the attempts made by Catharine MacKinnon and Andrea Dworkin to move beyond the First Amendment and ground obscenity law in the Fourteenth Amendment, making the issue one of equal protection of women.

It was this interest that led to me to a circle of legal scholars who were formulating “hate speech” in accord with the feminist reconceptualization of pornography.A volume of essays that appeared in 1994 entitled The Price We Pay: The Case Against Racist Speech, Hate Propaganda, and Pornography edited by Laura Lederer and Richard Delgado served as their manifesto.It announced that hate speech encompassed not only actual speech, as when a black worker was repeatedly subjected to racial slurs on the job and told by his employer that it was “horseplay”; but also such “symbolic” gestures as hanging pornographic pictures on the walls of a common room in a shipyard where a lone woman was working as a welder; burning a four-foot cross on the lawn of a Hmong family in Eureka, California; placing swastikas on the desks of Asian-American and African-American inspectors in a newly integrated fire department in San Francisco (the list could go on); and each was explained away as a “joke” or a “prank.” This new generation of legal theorists refused to stand for this. They were adamant that the victims’ searing mental anguish was more like the injury that resulted from physical assault than from speech that could be answered by “more speech"—the only remedy offered by First Amendment absolutists. They went to great lengths to document the gravity of the harm, which included "fear, humilation, degradation, illness, terror, anger, and rage.” The old consensus about “offensiveness” - “the relatively minor harm that results from disturbing or shocking the sensitive soul” — as the only harm of obscenity now sounded like it belonged to another time (which it did). I was heartened that the earlier idea that things that appear in public have consequences had returned to the world.

But the more I read, I found that it had returned in an entirely different guise and that it had nothing to do with the dangers to the public sphere pictured by those alarmed about living in a world flooded with obscenity—the coarsening of public conversation, the debasement of the common world, the waning of any sense of shame. Instead, these legal theorists believed that pornography, along with racist speech and hate propaganda, were the ideological means by which the powerful “silence,” “subordinate,” and “dominate” “historically disenfranchised people.” Hate speech, they argued, had enormous social consequences:it “perpetuates negative stereotypes, promotes discrimination, and maintains whole groups of people as second class citizens, hampering their participation in our democracy.” All of which results in an “atmosphere of fear, intimidation, harassment, and discrimination.” What is more, many of the contributors believed this was true of all forms of harassment, no matter the scale or difference in intention. When it came to the harassment of women, Lederer and Delgado declared, “Rape, women battering, catcalls, whistles, leers, and the proliferation of violent and degrading pornography all contribute to the subordination of women by making them fearful and by inviting others to think of them as targets.” It was this reasoning—or was it visceral outrage? or both?—that justified the Fourteenth Amendment as the basis of legal redress.

Even though I understand why this school of legal theorists argued that racial taunts, burning crosses, pornography, and all the rest subordinate entire groups of people, their turn to the Fourteenth Amendment now seems fraught with unintended consequences. One of the worst is that it gave these words, symbols, and images, which lack even “the slightest redeeming social importance” —the old standard for protected speech—the status and dignity of an idea, which they do not deserve. And this, in turn, made them eligible for protection by the First Amendment, as defenders of pornographers and cross-burners argued in law journals and in courts, and judges largely concurred. The legal concept of hate speech, I now saw, unwittingly provided the thoroughly emptied-out principle of free speech with new, but thoroughly debased, content. Thus: “The speech we hate is as much entitled to protection as any other.”

Reading these arguments now, I also see that an enormous in- tellectual leap from the harm experienced by the individual to its larger social ramifications was required to justify the application of the Fourteenth Amendment. Or perhaps what it took was a leap of faith rooted in righteous anger at social inequality. Whatever it was, the editors were not overly rigorous when they wrote approvingly, “The contributors of this book argue that the purpose of hate speech is the subordinationof one people by another” (their emphasis), for the speech and gestures they documented, from the most crude to the most intimidating, were not directed at a class of people by another class, but rather by a particular person—a thoughtless or vicious person (typically a white man)—against another particular person in the workplace, at school, on the street, in front of their homes.Was that particular man’s purpose “the subordination of one people by another” if he was not consciously aware of the social ideology that permits or encourages or underwrites his hate speech, which, when it came to the subordination of women, included his “catcalls, leers, and whistles” as well as his consumption of pornography? How could one ever know?

Even though I had sympathy with their larger position, I knew it would be plagued by the subjective, psychological nature of mental anguish and its causes, that what one person suffers as humiliation, another can brush away as a vulgar remark and that no amount of “research” could settle the matter. What is more, I knew that it was not an easy thing to pin down how a harm inflicted on an individual by another individual in private enacts society’s “subordination” of “historically disenfranchised people.” And I wondered what would constitute proof of the “crime"—if that was the right word—and what would be the legal remedy—laws, city ordinances, speech codes?—let alone punishment or compensation for the victim. Just as I have come to believe that determinations of obscenity—which I understand as a judgment about which things should appear in public—should not be left to the courts to decide since liberal jurisprudence lacks the conceptual resources to take account of its public, aesthetic, and moral dimensions, I suspected that the legal formulation of hate speech would run into similar roadblocks.

Now, a quarter of a century later, the question of what constitutes hate speech has become increasingly focused on which words create an"unsafe” atmosphere on college campuses. And the category has proved depressingly amenable to over-extension, as the controversy over Halloween costumes at Yale made clear, as well as the invention of ever more subtle varieties of hate speech captured in the mind-bending term “micro-aggression” and a new battery of protective measures such as “trigger warnings” and “safe spaces” that are more suitable to ministering to psychological distress than to redressing the subordination of one people by another — the latter of course being the harm that gave the legal concept of hate speech both its moral urgency and its foundation in theFourteenthAmendment. As I write these words, I now see that all of the elements were there from the beginning, that they were constantly slipping into one another. “Political correctness” on college campuses in its therapeutic form has furnished reporters and pundits with much material to sneer at. But the punishments for failure to conform to the attitudes and language it demands—"shaming, scapegoating, and periodic ritual exorcisms,“ as Robert Boyers recently put it—have given rise to legitimate concerns about what Boyers has called the creation of a "total culture” and Bromwich the “soft authoritarianism” of the contemporary Academy.

Whether or not this is a passing obsession, it is extremely troubling, but I did not anticipate that what I thought was essentially a hot-house campus affair would spill out into our larger world of politics. Yet that is what happened during the presidential campaign and election when Donald Trump positioned himself as a “radical” in revolt against the elite who belittle “the people” and made an all-purpose enemy out of political correctness—"over-sensitivity,“"self-censorship,"Obama’s refusal to call radical Islamic terrorism by its proper name for fear of "offending” Muslims a case in point. Trump’s rallying cry was that he would speak his mind and in plain English; he was not afraid of “offending” anyone, certainly not minorities and certainly not their sanctimonious champions. With the historical convergence of obscenity, the First Amendment, and offensiveness fresh in my mind, I was struck that the notion of “offensiveness” as “the relatively minor harm that results from disturbing or shocking the sensitive soul” returned in a completely unexpected form: as the weapon of put-upon people against the politically-correct elite. Again I felt disoriented. What was once a powerful weapon to de-fang the legal concept of obscenity and belonged to the most socially progressive people in the 1950s was now being deployed by Trump and his clan (Steve Bannon, Milo Yiannopoulos, et. al.) against those who claim that mantle in our time.This is where exigent circumstances make for strange bedfellows:those of us who are alarmed by the eagerness of self-professed radicals on campus to censor their enemies find ourselves uncomfortably close to people whose politics we find reprehensible. The need for the First Amendment returns, but this timenotin the service of rebels like Emma Goldman, Margaret Sanger, and Eugene Debs, who believed that they had progress on their side and would improve society by reasoned argument(and organizing and fighting the powers that be), but in the service of reactionaries.

Not surprisingly, during the campaign the many outrageous, obscene, boorish, and tawdry things that Trump said both in public and in what he thought was private offended the identity-politics democrats who believed it was “Hillary’s turn,” and they responded by attacking Trump and his supporters in the strongest terms available to them: misogynist, racist, xenophobic, homophobic. Which was also their immediate reaction to the election. While I knew they were not wrong, their choice of words struck me as strangely unpolitical, though at the time I found myself hard-pressed to explain why.At first, I thought the trouble lay with the personal, censorious tone of the attack, that their resort to invectives sounded more like a reprimand of bad behavior that required an apology—and “sensitivity training"—than penetrating criticism of the flagrant defects in Trump’s political program such as it was and is.That these two radically different realms—the social realm of manners and the political realm of ideas and action—could be so easily mixed up, I now realized, also grew out of the unargued but plausible premise at the base of the legal concept of hate speech:that slurs and insults had such obvious, undeniable social ramifications that they went without saying.The habits of mind of hate speech, political correctness, and identity politics were bound up in ways that I had not previously noticed, and this became even clearer to me after the election.

When I read the most searching post-mortems, I agreed with the criticism that because identity politics reduces everything to the categories of race, gender, and sexual preference, it forecloses in advance any larger discussion about matters that are of wide public concern and dispute, such as abortion (misogyny), law and order (racism), marriage (homophobia)—to name a few—and makes questions of globalism and unemployment ( i.e., class) of secondary importance. In fact, I thought, identity politics constricts the range of imaginative sympathy to only those who can be fit into the category of the "historically disenfranchised,” which explains how class, especially during the election post-mortems, was applied exclusively to “uneducated,” “unemployed,” “white males,” (read:misogynist, racist, xenophobic, homophobic—the very people who voted for Trump), there by erasing the 43.1 million people of every race, sex, and national background who are suffering the grinding, humiliating effects of poverty. Wasn’t this the habit of mind that led to the replacement of the dispossessed with Clinton’s"deplorables"? Surely there is a hierarchy of misery where life-and-death questions of poverty rank at the top.

From there I began to think about how ill-suited these same categories were to picturing larger political ideals such as the common good, which, I was sorry to admit, was beginning to sound like a hollow abstraction even to me who believes there is suchathing. Diversity, multiculturalism, the further inclusion of the previously excluded—but with little sustained inquiry into what kind of society is worth being included in—captures the imaginative scope of identity politics. This brought to mind an op-ed piece I read in the New York Times the other day by Melissa Harris-Perry, law professor and erstwhile host of a liberal cable-TV news show, who was offering her opinion of the kind of leader that would move the “irrelevant” N.A.A.C.P. in a “radical new direction” : “Is it ready to have as its president a young person just out of foster care who, because he is transgender and black, lived with vulnerabilities many can’t imagine?” What, I wondered, made Harris-Perry take for granted that the most extreme “vulnerabilities” that she could imagine were the qualifications necessary for making the N.A.A.C.P.“relevant,” let alone “radical”? How could she not realize that, to unsympathetic ears, her proposal sounded like a parody of political correctness?

My response is to say that her political imagination is paralyzed by the legal language of rights and interests, victims and harms, inherent in hate-speech thinking; such language, while it apparently mesmerizes many good liberals, lacks the conceptual resources to move from victims and “vulnerabilities” to citizens and the common good. And in the case of its most gushing enthusiasts, these habits of mind have allowed them to mistake their ever more sentimental valorization of the most “vulnerable” in society for a commitment to radical politics. That was the best I could do and it was not very satisfying.And then my own ideal of a vital public sphere returned to me: a world peopled by citizens engaged in the civic humanist idea of democracy as self-rule among equals, what in the 1960s went by the name—or dream—of participatory democracy.But in my current mood—and in this world of corporate monopoly, neo-liberal globalism, and impending climate crises—this ideal, too, sounded like a hollow abstraction.