The surprising faith of the group-libel restrictors in
prosecutors, judges, and juries
bobsheridan at earthlink.net
Wed Mar 7 10:05:36 PST 2007
James Carroll's "Constantine's Sword"recounts the long sad tale of
Christian vilification of Jews for denying the godliness of Jesus,
resulting in many atrocities including Crusader depredations,
pogroms, the Expulsion from Spain, and the Holocaust. The grains of
sand of hate speech produced these. There's the harm. I did see a
tv documentary on Germany's efforts to cleanse the culture and the
language of common sayings and usages that denigrate one group or
another and its members, using student treks to Holocaust sites, and
discussing how putting-down others prepares the ground for the sort
of bad thinking that results in more harm.
Perhaps we're looking, myopically, at constitutional law for the cure
when we should be focusing on education in critical thinking. One of
the lessons learned from my five years experience in teaching conlaw,
admittedly a brief period, but sufficient to survey the field a few
times, is that conlaw is not the answer to the world's great
questions, but a tool, one among many, in trying to deal with them.
As the man said, the cure for bad speech is more speech. That goes
double for hate speech.
Regarding propositions for abolishing hate speech by legal means,
this amounts to abrogating the "birds of a feather" habit of thinking
from which most of us, I presume, suffer at least to some degree. As
a matter of human psychology, I don't foresee success. I do think it
would be helpful to rely on critical thinking skills to form habits
useful in preventing the carrying of such thinking to extremes.
Again, the German example comes to mind.
On Mar 7, 2007, at 9:20 AM, Volokh, Eugene wrote:
> -----Original Message-----
> From: Eric R. Claeys [mailto:claeyser at slu.edu]
> Sent: Wednesday, March 07, 2007 4:37 AM
> To: Volokh, Eugene
> Subject: Re: The surprising faith of the group-libel restrictors in
> prosecutors, judges, and juries
> Yes, to this point, most of the defenders of group libel in this
> discussion have tended to the left as measured by contemporary
> But one can defend group libel laws from the right. Hadley Arkes does
> so in a chapter of _Philosopher on the City_ on Beauharnais and
> One can also extrapolate from the approach many pre-1940 jurists
> took to
> seditious libel. On this, see the minority report to the Virginia
> Resolution on the Alien and Sedition Acts, ghost-written by John
> Marshall, or the bad-tendency opinions from Gitlow, Schenck,
> Whitney, &c
> This approach wouldn't bar all contemporary hate speech, but it covers
> some. Let me sketch the argument real fast and a couple of points of
> contact in this debate.
> The axioms behind this position are: Representative democracy
> a citizenry with political maturity, i.e. well-formed classic
> virtues; because people are corruptible, it is easy to demagogue them
> and shake them out of such virtues; becaus e people are social and
> political, their moral character is influenced by opinions they hear;
> so, in principle, the government and other opinion-shaping organs
> in the
> society all have a responsibiilty to extinguish certain kinds of
> if they seem especially likely to demagogue the people. Most of the
> time, it is prudent to tolerate Communists, Nazis, and other cranks
> seditionists as a testament to free speech. But these are just
> rules of
> prudence. If such groups'
> speech is taken seriously, the government has the responsibility to
> squelch it.
> So -- in response to the Bernard Lewis example. Yes, sedition and
> speech laws give prosecutors the discretion to make an example of
> enemies, and that is a downside. In a country habituated to
> democracy, better to worry about the risks that Eu gene points out and
> don't let prosecutors have too much discretion. Maybe the U.S. went
> overboard with the Communists early and mid-20th century in this
> though I think it's a close case.
> But one has to make distinctions between the politics we take for
> granted and the politics in a country like Venezuela now, or Weimar
> Germany 80 years ago. Or even Western Europe right now., in
> relation to
> So take the Bernard Lewis case. Because of Europe's experience with
> Nazism and its large and unassimilated Islamic populations, some
> European countries may need laws giving public prosecutors power to
> remind people that it's beyond the pale to advocate extinguishing the
> Jews or some other race. These laws can be abused, yes, but there
> is a
> social cost to Nazis or Islamicists repeating over and over, for a
> decades that Jews ought to be exterminated, &c &c. See Riesman's 1942
> Columbia L Rev article on group libel for its recounting of Jews'
> experience in Europe.
> As Malla suggested yesterday, in social-science terms, it's probably
> impossible to balance the error costs in a rigorously empirical way.
> But to the extent that ethics and politics are shaped by opinion, they
> are not easily measurable in strict empirical terms, and it is a
> game to try. Why should 1A be doctrine be stacked to require the
> governemnt to wait on the empirical proof.
> And in these terms, if a country has tolerated Islamicists to the
> that they become a potent Fifth Column and domestic political
> constituency demanding that prosecutors use hate-speech laws to
> pick on
> their enemies, that country has much bigger problems than
> violations of
> free-speech laws.
> I realize the doctrine abandoned this position a generation ago,
> but I'm
> still interested to hear reactions.
> Eric Claeys
> Saint Louis University
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