Why Hate Speech Law Is So Problematic by Nadine Strossen

Former ACLU president Nadine Strossen recently released a book titled Hate: Why We Should Resist It With Free Speech, Not Censorship. In the book, she expounds on the virtue of free speech and why we must protect it at cost. Several highly visible democracies around the world have legal definitions of “hate speech”—Germany, United Kingdom, and Canada to name a few. However, there is no legal definition for “hate speech” in the United States. Nadine thinks United State’s approach is the correct approach to speech deemed hateful by some. In chapter 5 of the book, she attempts to differentiate between “hate speech” and “hate crime”—and goes to show why “hate speech” is such a problematic legal concept when contrasted with “hate crime” vis-a-vis physical violence. She writes:

Like other forms of conduct, one person’s speech can of course affect other people. Speech can affect listener’s emotions, psyche, beliefs, and behavior. Unlike other forms of conduct though, speech can influence listeners only through their intermediating perceptions, reactions, and actions, and only as one of countless other factors that also have potential influence. For this reason, hurling words at someone is materially different from hurling the proverbial sticks and stones. Sticks and stones directly cause harm through their own force. But words at most can most potentially contribute to harm. Whether particular words actually cause harm depends individual listeners perceive and respond to them, which in turn is influenced by the listener’s personality and circumstances, including innumerable other factors that potentially influence their psyche and behavior. In sum, speech has both an enhanced positive value and a reduced negative potential when contrasted with most forms of conduct, and thus warrants special protection.

If you are interested in her book, you can buy it on Amazon or listen to it on Audible.

Nadine Strossen is currently a professor of law at NYU and currently sits on the Council on Foreign Relations.

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