By Tina Fernandes Botts
The case of the Fresno State professor who was recently under fire for making negative statements about Barbara Bush through her personal Twitter account (the “Jarrar matter”) raises several interesting questions about freedom of speech in the United States. These questions include, but are not limited to, whether statements made through personal social media can affect the employment status of tenured professors, how the internet has changed thinking about freedom of speech, and whether First Ladies are public figures for First Amendment purposes.
Statements about public figures are treated differently than statements about non-public figures in the relevant case law. Specifically, although defamation is, generally-speaking, unprotected speech (meaning it can be freely regulated and litigants can sue and recover damages for defamation), a public figure will not win a defamation lawsuit in the United States unless the defamer acted with “actual malice,” that is, with knowledge or reckless disregard for the truth of the allegedly defamatory statement.
Putting this into plain English, people can make false or harmful statements about public figures in the United States, and cannot be successfully sued for damages for doing so, unless the statement was made while knowing the statement was false, or with reckless disregard for whether it was true or false. The rationale for this exception is the same sort of rationale that generally protects political speech, i.e., people have to be able to speak freely about political issues and elected officials in order to discuss the pros and cons of those issues and/or the pros and cons of keeping such persons in office, as long as the speaker is acting in good faith.
The freedom of expression question I would like to address in this essay, however, is what the Jarrar matter has to do, if anything, with current debates surrounding hate speech. In the service of answering that question, I would like to explore what I see as the question that is at the heart of all questions and debates surrounding hate speech, and that is, How does a person committed to both the American value of freedom of expression and the more universal value of human dignity reconcile these often competing values within the contemporary discussion of whether hate speech is a thing, and if so, what to do about it. One answer follows from philosopher John Stuart Mill’s “harm principle” according to which, one person’s freedom stops where harm to others begins.
Another way to express Mill’s harm principle is that one person’s freedom stops where another person’s freedom begins. I have always thought there was both an intuitive appeal to Mill’s harm principle as well as a pragmatic appeal. The way I see it, the intuitive appeal recognizes that regardless of what I understand my rights to be, it would be hypocritical to deny those same rights to others.
The pragmatic appeal is that an equal right to freedom (as H.L.A. Hart would call it) is something that no sensible and fair person would reject. Thus, if we can all agree that Mill’s harm principle makes sense (both intuitively and pragmatically), it would seem that we could use this principle to reconcile the seemingly competing values of freedom of expression and human dignity in the freedom of speech context, particularly as regards the very hot topic of hate speech.
If we did so, the baseline train of thought for examining all hate speech questions would then, arguably, become, “Does this expression harm anyone?” or “Does this expression limit the freedom of anyone else?” If the answer to either of these questions is “yes,” then the expression in question would count as hate speech. The next step would seem to be defining what counts as “harm,” sufficient to warrant the conclusion that the expression in question is not protected by the First Amendment, and can be freely regulated.
It is often held that “mere offense” is not enough to amount to the requisite “harm.” If “mere offense” were sufficient to meet the hate speech standard, this train of thought goes, First Amendment violations would run rampant and court dockets would become so filled with people filing hate speech claims that the entire judicial system would shut down (or simply be slowed down to such a degree as to become severely hampered in efficiency).
So, if “mere offense” is not a sufficiently high standard for assessing the harm required to regulate hate speech, what would be a sufficient standard? I think the answer to that question is related to the answer to the question of just exactly what hate speech is, that is, why its existence is posited, most frequently by members of historically marginalized, oppressed, and subjugated groups, in the face of opposition from many in mainstream America who deny that hate speech even exists.
Because the American sociopolitical climate has historically been fairly averse to acknowledging both that hate speech exists and that hate speech causes harm, it seems important to explore the tension between the view of mainstream America on this topic (i.e., there is no such thing) and the views of members of historically marginalized, oppressed, and subjugated groups (i.e., there is such a thing and it causes harm). This essay, then, engages two related themes: First, the question of whether hate speech exists. And second, the question of if there is such a thing as hate speech, what the harm is in it.
So, what is hate speech? Theorists of all varieties (e.g., legal scholars, sociologists, political theorists, philosophers, lay people) quibble over the answer to this question, but, arguably everyone agrees that if hate speech exists, it has (at least) two key components. The first is some form of expression (that is, it is the outward, rather than the inward articulation of a thought), and the second is that the expression is hateful. It is worth exploring just what “hateful” means here. What does it mean for an action, for an expression, or for anything, for that matter to be “hateful.”
Criminal law may provide us with a clue. In recent years, something called “hate crimes” has emerged on the scene. Generally speaking, a “hate crime” is a regular crime with the added component that the crime was directed at the victim in virtue of his or her identity as a member of a historically marginalized, oppressed, or subjugated group. A key component of laws against hate crimes is that the crime was violent. In summary, then, a “hate crime” is a violent crime directed at one or more members of a historically marginalized, oppressed, or subjugated group in virtue of his or her membership in the group.
The “hate” part of hate crime, then, is violence occasioned by historically-situated prejudice. Importantly, a hate crime is not a crime directed at any group member in virtue of group membership, but a crime directed at a member of a group that is already oppressed, in virtue of the characteristic or trait that signifies the person as a member of the oppressed group. This is important because a key component of a hate crime is that it re-instantiates and reifies a prejudice that is well known and established.
Bringing this analysis back into our discussion of what hate speech is (if it exists), this would mean that hate speech is violent expression directed at a member of a historically marginalized, oppressed, or subjugated group in virtue of his or her membership in the group. This definition, then, leads fairly directly to what I see as the harm of hate speech, which is, arguably, the reinforcement of historically situated oppression against a member of a historically marginalized, oppressed, or subjugated group. This definition conveniently includes the “violence” element required by the concept of “hate” as used in “hate crimes” as well, where “violence” is defined as the forceful infliction of pain, damage or hurt on someone else.
Traditionally, although First Amendment jurisprudence in the United States has always provided for exceptions to free speech where a policy issue is identified as more important than free speech (examples are obscenity, “fighting words,” defamation, and child pornography), the re-instantiation and reification of institutionalized prejudice and oppression has never been deemed sufficiently important to supersede the general freedom of speech requirement in the United States, in the same way that policy considerations underlying the other so-called “free speech exceptions” are understood to supersede free speech. There are all sorts of theories available for why this is the case, but the reason that I find most persuasive (rooted in general principles in the philosophy of law) is that human dignity has never been a part of the American ethos.
That is, human dignity (often considered part and parcel of the ethico-legal value of freedom in western sociopolitical theory) as such is not expressly articulated as a value in American jurisprudence. In American jurisprudence, in other words, the concept of freedom (which is most definitely explicitly valued) has been lopped off from its grounding in the natural law continuum that includes reason, freedom, autonomy, and human dignity as the core ideas of western political and legal thought.
What is left is freedom standing alone, freedom without human dignityAnd as noted moral philosopher Jeremy Waldron has stated (The Harm in Hate Speech, Harvard University Press, 2014), and I agree, the harm that hate speech causes is that it violates human dignity. If American legal and political theory were to reengage with the concept of human dignity that is arguably part and parcel of the western value of human freedom, the harm in hate speech would be self-evident: it harms the human dignity of those to whom it is directed.
But, what does any of this have to do with the Fresno State English professor’s tweets about Barbara Bush? Quite a lot, I think. Jarrar’s tweets arguably violated the human dignity of their subject, the late Barbara Bush. They violated her human dignity not because they accused Mrs. Bush of being a racist, but because they violated the common courtesy of not speaking ill of the dead, particularly so soon after someone has passed away.
Now, I can see how someone might argue that these tweets amounted to “mere offense” rather than human dignity violations, and I am happy to agree to disagree on that point with anyone who has that view. Nonetheless, if we sort through the various comments criticizing the professor’s tweets, such phrases as “common decency,” “common courtesy,” and “insensitive” are consistent themes. The combination of the fact that Mrs. Bush had just died and the intensity of the negative criticism seems to be the source of the outrage.
So, if we can characterize the public outrage over the tweets as a concern that human dignity was violated, we have to then ask why the same level of public outrage is not directed at instances in which the human dignity of persons who are members of marginalized, oppressed, or subjugated groups has been violated through the utilization of racial slurs, the dissemination of racist propaganda, or the like.
What I am asking those who are outraged at the English professor’s tweets to do, in other words, is to look in the mirror and ask themselves if they would have the same level of outrage if the tweets at issue had been racist tweets directed at a member of a historically marginalized, oppressed, or subjugated group.
Would the person who posted those tweets be the subject of the same level of public condemnation and outrage? Would the employment security of the person who posted those tweets be threatened? Would the same level of anger and public denunciation be directed at such a person, or would the same people who are condemning the English professor’s actions be arguing instead that the poster of racist tweets was just exercising his or her free speech?
Through the analysis in this essay, I do not mean to condemn the English professor’s tweets as violations of human dignity (although I do think it is discourteous to speak ill of the dead, particularly so soon after someone has passed away), nor do I mean to characterize those tweets as hate speech. Instead, I aim to highlight to the reader that if the human dignity of Barbara Bush is so important as to warrant public censure for expressing an opinion about Mrs. Bush’s sociopolitical leanings, perhaps the human dignity of those who are the targets of hate speech, as defined above, should be considered equally as valuable, so as to warrant hate speech regulation in the United States, just as it is regulated in every other civilized country in the world.
But, on the specific topic of the English professor’s tweets, it seems to me a good case could be made that the tweets are protected by the First Amendment, not necessarily on the grounds that they constitute political speech (although I do think they count as such), but on the grounds that Barbara Bush was a public figure, and as such is subject, under the First Amendment, to a much wider array of commentary in virtue of the fact that she held that status, as long as the person making the comments believed them to be truthful when the comments were made.
Tina Fernandes Botts is an assistant professor of Philosophy and the Pre-Law Coordinator in the Department of Philosophy at Fresno State. She is also an attorney. Professor Botts was the keynote speaker at the Fresno State Freedom of Speech Forum in the Fall of 2016. She has published two books, has a third book in press, and is in the process of writing a fourth book on hate speech entitled Hate Speech and Social Harm.