S3E2: Sticks and Stones: The Problem of Hate Speech

How many times do you remember hearing this as a kid? Sticks and stones may break my bones, but words will never hurt me. It's a well-intentioned phrase meant to help children withstand cruel taunts and name calling. But there's an important question many forget to ask. Is it actually true? Well, it depends on who you ask. There is a category of speech that some believe can not only hurt people, but hurt them far worse than just sticks and stones. We're talking, of course, about hate speech. As human rights advocates, we know that many global atrocities from the Holocaust to the Rwandan genocide can be exacerbated or even driven by hate speech. And that speech can be especially dangerous when targeted in marginalized communities. But the question of how to address hate speech is a thorny one, because it often involves a clash between two fundamental rights—the right to protection from discrimination and the right to freedom of expression. Most people agree that free expression doesn't mean that all speech should be allowed. How many times have you heard this other phrase for instance, "It's illegal to yell fire in a crowded theater?" Yeah, surprise it's actually not illegal to shout fire in a crowded theater, though I don't recommend trying it at a movie theater this weekend. But there are certain kinds of speech that we've decided we shouldn't be free to express. We have libel laws, we have perjury laws, defamation laws, you can't incite a riot. But the US Supreme Court holds that there is effectively no hate speech exception to free speech rights under the First Amendment. Though countries like France, Germany, and the UK, and many others, do regulate hate speech in their legal systems. So why is it so difficult to get people to agree on whether hate speech should be illegal? I mean, we typically argue that hate speech must be regulated to prevent this speech from escalating into incitement to discrimination to hostility or violence, which international explicitly prohibits. So that incitement theme is, you know, a really important one. But the incitement standard is very blurry in practice, leading countries that pledge both to combat discrimination and protect freedom of speech to address hate speech in very, very different ways. So trying to come up with solutions also leads to hard questions about who should have the power to decide what constitutes hate speech in the first place. I'm Claudia Flores, law professor at Yale Law School. I'm Tom Ginsburg, a professor of law at the University of Chicago. And this is entitled A Podcast About Why Rights Matter and What's the Matter with Rights. Part of the reason hate speech is such a contested issue is that we can't even agree on what it actually is. And yet it does feel intuitive. When you hear the words hate speech, I think all of us have a gut level understanding of what it is. So why is it so hard to pin down? One of the problems here is that there's lots of hate speech around people insult each other all the time. They're trying to express anger or hatred, even attacking people by groups, you know, and that's really what many other countries do prohibit. Group based animus being used as insults. One idea is that it's anything which, you know, manages to offend a group, but that's a pretty broad category. And I think we feel like, well, maybe it's a little too broad that some speech, which might be valuable or useful, might be caught up in that category. So there's the potential of overbreath anytime you have any restriction on speech. So hate speech sort of has two elements to it, right? One is the content of the speech, which is that you're saying something insulting or discriminatory against someone because of a characteristic they might have. And those characteristics change depending on the context and depending on what the social media platform thinks and depending on what a particular country's constitution might think. And then there's also the harm issue. And so, and that's where the debate is too. What kind of harm does it need to cause? Does there need to actually be physical harm out in the world? Or could it just be hurt that the listener experiences? So that's part of the sort of debate that we have going on around what hate speech is and what should actually be prohibited. And the category of hurt is really, really broad indeed. I mean, people are hurt all the time. Think about the university context where we're discussing sensitive issues. I teach about Israel and Palestine, for example. And I do so, I think, very sensitively. And I think my position is articulating the law is pretty clear and, of course, is the right position. But if I'm overly worried about offense, which is a completely subjective matter, then I'm going to say a lot less about the conflict. It's going to chill my presentation of that topic. And that's going to have costs which are diffuse throughout the class. So, you know, mere offense in a sensitive society is probably too low a standard for, you know, restricting speech, we need to do something more than that in order to have a robust conversation in a democracy. Then the question is, you know, you go to the other extreme, you have, for example, like an intentional use of a racial epithet against a person, you know, should that be punishable? I think a lot of Americans would probably say yes, at this point, even though the law doesn't follow them in this regard. No. And I think the other important point to make is that, you know, there's the kinds of prohibitions that a state might make. And then there's also just what's happening in the private sector, right? I mean, there are listservs and platforms that, you know, set standards all the time about what can be said and what can't be said that happens in academia as well. You know, there are institutions that will say, I don't want you talking about this set of topics. You know, you might have a platform that decides that it doesn't want certain kinds of insulting, abusive speech to be spoken, and it's going to take it down. And that's totally fine for them to do. They're setting the context for conversation. When we talk about hate speech, we're talking about something that is intended to be a bit more objective. When you want to try to understand what hate speech is and how we should think about it's complicated inner workings, there's one person you have to turn to first. And he's my former professor. He taught me everything I have forgotten about the First Amendment. And he's my current colleague. My name is Robert Post, and I teach at Yale Law School. I'm a Sterling professor of law. And one of my specialties is the First Amendment, and in particular, academic freedom. Post is a world-class expert in hate speech. In fact, you could say he wrote the book on it. Books, actually. And he was gracious enough to come on our podcast and walk us through how we should be thinking about this controversial issue. Roughly speaking, there are two categories of definitions for hate speech. One ties hate speech to violence. It's the kind of speech which was likely to cause violence. In the first branch of hate speech, the connection between the hate speech and the events you want to avoid is contingent. It may or may not cause the thing. In the United States, it used to be said that speech that had the tendency to cause illegal conduct could be regulated. That was known as the bad tendency test. And Holmes, in his dissent in Abrams versus the United States, in 1919, November of 1919, says we can't have such a loose causal connection because any speech could have the tendency to cause harm. And so what we need is instead to have a clear and present danger. And the present test is the Brandenburg test, which means it has to be aimed at and, in fact, is likely to cause imminent harm. So we in the United States say if you're going to regulate speech, the causal arrow connection has to be quite tight. Otherwise, it can be expanded to all sorts of things. That's the general rule in First Amendment jurisprudence. The second definition of hate speech is not a contingent harm. It's speech which is inconsistent with dignity and which demeans, abuses, humiliates the recipient. Speech which humiliates or abuses or degrades the dignity of a recipient is not contingently connected to that result. It is intrinsically connected to that result. It is the definition of having your dignity demeaned that someone speak to you in this way. In the United States, we have various forms of regulation which follow this pattern, the most classic being fighting words, those words which by their very utterance cause injury. So then you have to ask yourself how do words by their very utterance cause injury? I mean, what is our image of the world where words cause it by themselves? And the best answer that I can think of myself is that we all are socialized to have certain identities. We are who we are because we've been brought up to internalize certain images of ourself. And in particular, your own sense of self is dependent upon other people views of you. Don't know how to play first base in baseball unless you know what it is to be a second baseman, a third baseman, a shortstop, a pitcher, a batter. You need to know lots of things to know who you are. So the way in which ourselves depend on other depends upon other people following rules of civility. And there are social rules different in each culture which define what it means to treat another person with dignity. And the violation of those rules is viewed as a violation of dignity. If I strip you of your clothes, I'm taking away your dignity because our clothes in our culture are connected to our own sense of who we are, our self respect, etc. And that's how words by their very utterance can cause injury. Now notice that the connection between the speech and the harm is the intersubjective norms that unite the speaker and the audience. And in nations which have a common culture, or in which there is a hegemonic culture, which defines what the common culture will be, regardless, it can use the law to enforce these norms. And it turns out that the United States began to perceive itself in the decade of World War Two. And you know, this is the platoon in World War Two that has the Italian American, the Jewish American, the Polish American, the Wasp, and the you know, whatever, began to define itself as a culturally pluralist country in which the norms of no given community could survive. And so in the US, there is a very strong distinction between a community, let's say a community is association of people defined by these common norms and a public. And this public is not reducible to any community. This was being theorized in the second first and second decades of the 20th century. By the fourth decade of the 20th century, it was being interpolated into our First Amendment jurisprudence. And the court said, look, if we were to let the force of the state be used to enforce the norms that define dignity, we would be enforcing the norms of one community as opposed to other communities. And we can't let the law be used in this way. So precisely the result of our cultural heterogeneity, the court said was a reason why we can't enforce these civility norms when we're dealing with public discourse, as to say discourse in the public, to create the public sphere. And the second reason is American elites are extremely weak in defining cultural hegemony. And that's because, you know, we are splintering into thousands of anarchic groups. And the law has been unable to, as a distinct say from Canada, find an elite group with the cultural power hegemonically to enforce its sense of which norms should define dignity. Now another thing to understand about hate speech is that when you rule out of bounds speech, because it's somebody's sense of civility is being offended, you are basically reading those people out of the formation of public opinion. My favorite example of this is there was England until very recently had a law blasphemy. You know, blasphemy is very much like hate speech. It's hate speech about God. It's speech that would offend the respect or dignity of God. That's the meaning of blasphemy. England understood this to be involving a propositional truth until about the 1880s. If you denied the trinity, that was blasphemy. By the 1880s, that was absurd. So they redefined it as speech that would offend the average ordinary Anglican, not the ordinary Muslim, but the ordinary Anglican is what a blasphemy was. Debate in the 1930s in Parliament where one speaker gets up and he says, you know, how is it that when someone from the west side, meaning, you know, the Bloomsbury group says things about God, like Bertrand Russell, it doesn't defend the average Anglican. And so they can be atheist and say whatever they want. When someone from the East end, meaning, you know, labor rights and kind of like people on the left, say something about God, that's offensive, you know, that's blasphemy. And you can see there very clearly the cultural differences about what counts as offensive and not offensive. So when you read the people on the East end out of the formation of public opinion, you're basically, you're creating a situation where you're going to have to suffer in the end, the revenge or the repressed. If people are excluded from political participation, and they're not completely demoralized, you're going to see their recurrence and, you know, Europe is very liberal in defining hate speech. And I think it is not implausible to imagine there's some connection between that and the rise of the extreme right wing in Europe, because these people are feeling excluded from the, there are no ones in dialogue with them, no one can be because of their hate speech. So that's always a risk. And a country will take that risk, depending, you know, on how hegemonic their elites are, or how socially cohesive they are in the US, where we're always on the point of fragmentation, we err on the side of inclusion for that reason. For me, there is no question in my mind that words cause harm. And the law recognizes it in so many situations, like child abuse can be verbal, you know, in the human trafficking context, coercion can be verbal. Like there are actual kind of tangible things that words do that are harmful. And Tom, I think you agree with that, right? You think that the law can recognize harm on its own just through verbal acts. Sure. I mean, it used to be sticks and stones will break my bones and words will never hurt me. But now we understand that words actually cause physical reaction in your brain and your body. And there's chemical reactions and such. So the mind, body distinction, I think, has, you know, broken down. And we recognize that there is genuine harm in words. So I agree with you. So if we both agree there, and presumably we agree that the harm that words can cause can be discriminatory harm, right? I mean, you can say something to me based on my identity that will be painful and I can do the same. I guess the second question is whether or not we think that that's something that the law should regulate. And that is a different question, I think, because there we're balancing two values, right? The value of keeping free and open conversation between us and the value of us not having our feelings hurt and our human dignity hurt and, you know, potentially inflicting real harm on each other. I gather for you that you would want to protect the open flow of information at the expense of the potential of our feelings being hurt by the things that each other says. Yeah. And one of the reasons is resonant with articulation there, which is we can't agree on who should be the regulator. And whenever society does, then there are always excluded groups that don't get to speak. And so, you know, it's always the problem of who guards the guardian, you know, who's going to be in control of this. And it's almost always abused or misapplied from the point of view of someone. Who should be the regulator? I think it's connected to the other point that Post was making, which is that in communities that have more of a cohesive identity, that somehow that's an easier problem to solve, or at least an ostensibly easier problem to solve, whereas in communities like ours that don't have as much of a cohesive identity, it might be a harder problem to solve. But it also may be more needed here, right? Because we have more groups that are, you know, kind of butting heads. And so, and we have less of a sense of obligation to each other. I mean, I'm just now spouting things about American society that I don't even know I believe in. But, but, but I do think, you know, there is this issue of where, how we protect ourselves from each other in a way that keeps lines of communication open. Yeah. I mean, when I look at the year, I agree with that. But when we look at the European cases, like one particular group that gets a lot of prosecutions or Muslim radicals, you know, we're calling for, you know, anti-Jewish things, and they get punished for hate speech. Now, that's not a problem of the majority protecting the majority. It's the majority protecting one minority against another. And Europe, there's a consensus about that and there probably should be. I have no problem with that. But my, you know, they have to trust the regular. And there has to be a shared set of values about what exactly crosses the line and what doesn't. That's all well and good. But it doesn't stop all the majority people who want to spout anti-Muslim stuff. And so the state ends up, I don't want to say it prefers one minority to another. I don't think that's what's going on. But it leaves open perhaps the biggest source of threat. But that's clearly a misapplied principle. I mean, I agree. I understand that that's what happens, but that's not abiding by the principle. I mean, this is what I think is a general problem. This is what it sees. Huck and I are writing about disqualification regimes. Like under what circumstances do you ban a political party? United States are more generous in the sense that we don't have any rules in which a party's platform can, you know, allow it to be banned from the public sphere. Europe does that a lot. The party bans are most effective when the party is a fringe party with no actual chance of taking over. But what about a party that is calling for the end of democracy that's really popular? Well, you can't ban them. And this actually goes to Trump to some degree. Like I think banning Trump from running for office would actually strengthen his position and make it more difficult to actually keep him out of office. Ultimately, legal accountability can't substitute for political accountability in that case, although the two things work closely together as we're seeing in the current documents case. The point being that if the movement is too popular, bans are going to have absolutely the opposite effect. It's going to draw people to them. So I think that's a kind of paradox in democratic regulation of who can run. And I think it also relates to the democratic paradox about who can say what in society. And so if you shut out Muslim radicals in Europe, Europe is not going to become a Muslim radical continent, right? That's just not happening. They are peripheral. If you shut out the AFD, the alternative for Deutschland in Germany, they might grow stronger. So I think his argument has to be qualified with regard to certain groups. And at the end for the United States, I guess I come down with the First Amendment, though it sure is irritating when you go and see all these vile stuff. So I wanted to take us to the online space. So thinking about the framework that you've provided, I thought it was really interesting, this idea that in the United States, we have a different idea of community because we are such a pluralistic society. In the online space, how does that translate? So arguably, we have an even more pluralistic society in the online space. So how should we think about hate speech, the idea of community, and also the impact of hate speech in that sort of virtual world we're all living in? I think it's just an enormously difficult question. I mean, you know, when we say in First Amendment, you're supposed to be clear and present danger, we have the idea of a specific speech act and a specific harm. If you're talking about speech online, you know, where it has millions of hits and travels at the speed of light, I think harm is more stochastic than it's unilaterally causal. So we need different notions of connecting speech and harm simply because of questions of scale. And we haven't gotten to think about how to theorize that because it can't be that any speech which has a chance of harm can be regulated. So how we actually conceptualize that, I have no idea, but I do know we're going to have to think about that very hard. The second point that you raise is it's a very deep point. We protect speech in the United States so that we can together form a public opinion which makes our government democratically responsive to us. So the state is democratically legitimate in part because we're free to help form the public opinion that should direct the state. Many theorists have defined democracy as government by public opinion. And you know, that's why when people come out of a state of tyranny, the first thing they want is going to the streets and speak. So what does it mean to participate in the formation of public opinion? If I go into the public space and it's, you know, everyone just, if I'm a Jew in 1939 in Nazi Germany, I could speak in the public space. But if all I do is get spat on and no one takes me seriously, no one engages in a dialogue, no one treats me with a modicum of civility, it's not going to serve the purpose of allowing me to feel that the state is democratically responsive to me. So what I call in my writings the paradox of public discourse is that in American First Amendment jurisprudence, we suspend in public discourse the very civility rules which are necessary for public discourse to perform its constitutional function, which is to create a public opinion that can mediate between my individual autonomy and our collective autonomy. And so that's a very fine balance. And it's always the case that a court should be allowed to intervene to enforce a civility rule in public discourse if the ability of public discourse to perform its function of mediating between individual and collective autonomy is at risk. And that's always a balance. It's very hard to know where it is. And in part, that balance is maintained in the US, was maintained before the internet by the fact that our mass media had gatekeepers who maintained a very high level of civility on the whole. I mean, there were corners of it that didn't, but they were corners and that's the point. The internet now, all of us are involved in a public discourse and public opinion formation that has very little rules, almost no rules. And that means that the speech is becoming more and more alienating. That means it's at risk of not performing its function. And that's a very serious issue for us to think about in this larger sense of things. Is there a public discourse to protect at the supernational context? Because, you know, we're talking about the relationship between the public and the state. But I think the internet in a way is, you know, forcing us to think about that in a much more general way. Is there a global public discourse? For example, you know, Facebook right now, it will follow the laws of the country that it's operating in, right? And so there could be different rules in Vietnam, for example. So users on Facebook in Vietnam, then there could be for users on Facebook here. Is there some kind of supernational conversation that we need to be thinking about? And how do we think about that in the context of hate speech? Well, again, that's extremely deep and that's a really provocative question for further research. But the first thing to be said about it is every country that protects freedom of speech does it in the context of a national demos and the relationship between the speech of a national demos and a democratic nation state. And that's one reason why human rights, when it protects the right to speak, is to my mind almost incoherent because we don't know what speech is. I mean, you have to know what value you're protecting to know what is speech and what is not speech. And autonomy doesn't work and truth doesn't work. The only thing that works to describe the actual legal systems we live in is this relationship of public opinion formation and the state. But that's national. Now, what the internet has done has made a cosmopolitan public sphere, not a national public sphere. So what are we protecting? And that is something, again, we have to theorize and think about very deeply, which we haven't. Plainly US citizens who participate in a US residence are going to be protected in the traditional way. But if someone from Italy is coming into the US through Facebook, what sort of speech rights do they have? My guess is it'll be theorized in a Michael Jonean way, not in terms of the participation rights of a speaker, which is a major theme of First Amendment jurisprudence, but of the First Amendment rights of a listener. And listener rights are totally different than speaker rights. And they lead to a different regime of regulation. But we don't know. I mean, we really have no theoretical apparatus to understand this at all at the moment. And it is going to be a huge challenge going forward. When you look at Meta's community standards on hate speech, they are incredibly detailed. And I guess I'm curious about your thoughts now in talking about the private sector element of this and the regulation of hate speech. Obviously, Meta's interests in creating a certain kind of community are not going to completely overlap with the state interests or even the supernational cosmopolitan interests that we're talking about. How do you see those things as balanced? And do you have concerns about the private sector really taking a lead on regulation of hate speech? I know you're affiliated with oversight board as well. How do you see all of this developing in terms of coming up with sort of thoughtful standards on what hate speech should look like online? So I should say I'm a trustee of the Facebook oversight board. I'm not a board member, so I don't make the decisions, but I'm responsible for the financial integrity and that I have a fiduciary responsibility that the board do what it's supposed to do. One of the things it does is it interprets in light of human rights standards, Facebook's community standards, and it tries to articulate norms that should govern the regulation of speech within Facebook. And what I understand that project to be is infusing the decision making of a for-profit company with public law values. I think it's extremely important that that happen. And one reason is if you don't do that in the private company, it's just a private company, it can ban this person or that person, that will, because private property, you have discretion to do it every one. So public law values ought to be involved in something that's important. Should the state do it? The problem with the state doing it is a matter of scale. So Facebook takes down, we're not even talking about inappropriately leaving up, but takes down 50 million posts a month. No institution, no legal institution of any state is able to process things at that rate. It just can't happen. It's beyond human capacity. Now, that poses a deep problem, which I've been thinking a lot about and I do think is another, you know, you keep asking about, you know, what is the research agenda for the future? This is a research agenda for the future, which is the relationship between law and scale. So when a court articulates a norm, what it's doing is throwing into a well-articulated profession, lawyers, and a set of institutions, lower courts, a norm, and they're trained to understand a norm, apply a norm, be faithful to the norm, et cetera. That's what a legal system is. That's what we mean by rule of law. But when we articulate a norm at the oversight board, you can't, there's no human being supplying that norm to 50 million posts. It's an algorithm. It's AI. It's artificial intelligence. And that means it gets translated into a set of n-dimensional regression equations. And that's not a norm. It's a totally different thing. So there is a disjunct between law and artificial intelligence. And artificial intelligence is the only thing we have capable now of policing something as vast as the internet. And we do not understand the gap that separates law and regressions in AI. This is something that we need a lot of theoretical work on. The best work I've seen on that is by the Israeli legal scholar, Neva Elkin-Corin. She teaches at Tel Aviv. And she has this piece on contesting algorithms. She says, if they're going to have an algorithm, other people should have an algorithm. They should go at each other. Well, it seems to me that if the issue, the larger issue, is infusing Facebook, a private company with public law values, then the issue is, how do you legitimate in public law an algorithm? And the way I'm thinking about this now, it's tentative. And I would love to have, be able to implement this, but one trip before I'll be able to do that. AI is very interesting because you have to train it. AI gives the result and then you give it feedback. And in the feedback loop, it learns. It learns because there's humans giving it feedback. I think that feedback loop can be analogous to legal decision making and legal input. So if you can have the relevant stakeholders training the AI, say on an international level, you could legitimate it in the international civic space. You'd have to pick the stakeholders, they'd have to be training it. And then you set such an AI against a Facebook's AI and where they clash, that's where you'll have human interventions and norm articulation and straighten out why there's this difference of opinion or whatever. But we have to begin to think creatively about the institutions which we'll govern and they won't be the old legal institutions because of matters of scale. If you're getting a lot out of this podcast, there's another University of Chicago podcast network show you should check out. It's called Capital Isn't. Capital Isn't uses the latest economic thinking to zero in on the ways capitalism is and more often isn't working today. Join Vanity Fair contributing editor Bethany Magline and distinguished professor of economics Luigi Zingales as they explain how capitalism can go wrong and what we can do about it. Listen to Capital Isn't, part of the University of Chicago podcast network. There is another outlook that says most of the discussion we've had about hate speech is actually beside the point that what really matters when it comes to hate speech is merely the outcome of the speech. That idea comes from another heavy hitter in the hate speech literature. I am Laura Beth Nielsen. I am professor and chair of the Department of Sociology at Northwestern University. I am also a research professor at the American Bar Foundation, and I have studied hate speech, offensive public speech. I'm sure we'll get into what do you call it and why, but whatever you call it, I've studied it for probably 30 years. So let's start out by asking you a little bit about what is it? What is hate speech? How do people understand that? So the more I get into putting together the social science research with speech policy questions, the more I think the category is a bit of a red herring. So what I would say I'm concerned with is I'm concerned with the kind of speech for which there is ample social science evidence that is creating inequality. So right now I'm working on a First Amendment claim by a professor to misgender trans students in the classroom, right? Is that hate speech? I don't know. What's your definition? I don't know. But I can tell you that that student's ability to learn is impeded when they're misgendered. What happens if you use the N-word in class? People stop learning. So I would say I'm concerned with speech for which there is a large body of social science evidence that it creates inequalities in particular places. I'm looking at what we know in the aggregate about what harms people. So the analysis is not individualized to this conflict, which is a hallmark of law. It's what law is supposed to be doing. And I understand that the individual conflict that's being adjudicated in a legal case is important, but arguing that it should exist in its social context. And that requires an analysis of power. So the white male heterosexual Christian professor with tenure who wants to misgender a trans undergraduate student in this case, who's first or second year of college, right, leaving home for the first time, right? So it's not just these individual people that have a right to do X or Y, but these people are in a relationship, in this case, professor and student. And what do we know about how that relationship works? And should our analysis of rights care about that? And I think they should. But I understand people who say, well, that's way too complicated for law to do. That's just very complicated. But I think we could do it. But I didn't hear anything in your definition which brought intent into it. So in other words, if we just focus on the offense of the hearer, it may be that we're regulating all kinds of things which are actually said in good faith or neutral faith as hate speech. Does the intent of the communicator matter for something we might or other societies maybe regulate as hate speech? We find intent in the law a lot of places. One of the things you often hear is, well, how could we ever know what the person was thinking when they burned a cross? Well, we ask a jury in the same way that we ask a jury, did this person commit murder for financial? We do this all the time. So I'm not afraid of trying to do it in the legal system. And I wouldn't say taking offense. It's not that we're regulating what targets take offense to. We're regulating the kind of speech that a body of scientific evidence tells us is perpetuating a harm. And in some ways, my offense is totally irrelevant. Who cares if I'm offended? But if I'm mis-generating kids in the classroom, and we know that trans kids have this massively higher suicidality, and then when medical researchers talk to them, one of the reasons is that they feel marginalized from the institutions that we force them to go to, right? We kind of force you to go to school, and then you're mis-gendered. The individual offense is less, is less important to me. So I was in a debate one time, and I presented all the evidence that using the N-word makes black people less likely to be able to learn. Maybe not all of them, but, you know, broadly speaking, kind of in the same way that, you know, like the Claude Steele research about if you make race salient, and then you give people a math test, African-American students are going to do worse. So you can show that stuff. And so I had just given this big speech and, or, you know, presented the evidence and so on. And then the person who went after me purposely used the word to show he could, because it was his academic freedom. And this was in an academic, this was in the faculty senate, and he and I were on the panel talking about this. And it's, you know, you're sitting there and you're like, what, what was your intent just now? I just finished telling you what is going to happen in the minds of the vast majority of people of that race when you use that word. Here we are in the faculty senate, which is mostly white. And the people for whom this is really, really salient, you have just excluded a good portion of them out of the conversation. It made me so angry. So would we call that hate speech? If we're using this intent standard? Did he mean it hatefully? You know, he's playing with ideas. He's the first member. So, I mean, in a way, I care a little bit less about what's in his mind, but he knew, I had just told him, maybe he wasn't listening, but I had just told him what he was going to do if he did that, and he chose to do it anyway. And so what I would say is you just chose to marginalize the African-American professors in this room. And whether you think that's hate speech or not, I also think it's just gross. Yeah, right. Well, yeah, right. It's like, is there's no law against being an asshole if I can use the technical term. But, but it does mean that that person's obviously less effective as a, in this context, as a deliberator in that context, or certainly as a teacher, if that's what they were doing. Right. And could you say, then, now you, you don't have a job, and then he's going to make, I mean, he wouldn't, but some professor would make a First Amendment claim. And what's the claim? Academic freedom? Well, the first word in that sentence is academic. We're in a university. The job here is to teach and debate. And what you've done is you've just, on the basis of race, excluded people from full participation. Can you share with us other kinds of research that have been, that's been conducted along those lines? So this, this connection between hate speech and the ability of students to learn in a classroom where that speech is being used. Is there other research that draws that connection between the speech and the impact? Is there research that you can share with us that sort of, you know, illustrates the impact or the consequences of hate speech in different contexts? There's quite a bit of research that shows that if someone is degradated in front of you, your assessment of their value, the quality of their work, and so on goes down. When we get the sexual harassment as a cognizable legal claim under Title VII, there is a First Amendment response that says, hey, you can't tell people what to say. They should have free speech in the workplace. And then sort of the answer to that is, well, here's this research. And if you are degrading women or if you're degrading people based on race, or even talking about these groups of people as, you know, just to think of some of the tropes that are commonly used, you know, lazy, ineffective, manipulative, whatever they are, those assessments of the value of the person and the value of their work are impacted. And so the rationale of limiting, you know, speech in the workplace is because that is creating inequality. If you're being degraded in front of the boss or in front of somebody who's evaluating your work, their assessment of your work is going to go down. And so this is a lot of research in, you know, social psychology, where they'll do things like have a totally scripted debate, right? And the people in the audience who are the subjects are supposed to evaluate the debaters. So it's a black debater and a white debater, but the words are exactly the same. They're memorized. And you can show how people assess how the black debater is doing, regardless of which side they're on, which script they're using. As soon as that debater leaves, there'd be a confederate in the room who would either say nothing, in which case the debates are scored pretty well, you know, pretty consistently and fairly. Sometimes the confederate in the room would say there's no way that black guy won the debate. And immediately his scores go down. And then a third and troubling one is there's no way that N word won that debate. And you can just see the evaluation of the black debater tanking, regardless of the side. Right. And so when you start to understand that that's part of how people are assessing work, if you think part of what's going to get us closer to equality is if people have opportunity, well, then you can't have that in the workplace. The idea that we're just thinking of this as speech and not as systematically excluding people from opportunity and equality on the basis of these categories is to stick our heads in the sand. Yes, it's speech and speech is valuable and we want to protect it, but we have to recognize what the speech is doing. Okay, look, I think Laura Beth is conflating a few things here. I mean, there's the academic context where a professor who intentionally misgenders a student is certainly being a jerk and isn't engaged in good pedagogy. If a university disciplined a professor for that, you know, I would think that would be okay, although the fifth circuit apparently disagreed and upheld the rights of that professor. But in the academic context, we might have all kinds of restrictions that we don't need to go all the way to hate speech to analyze. You know, we have all kinds of demands that can be put on professors that are consistent with academic freedom. You can't bully, you know, there's lots of things you can't do. It's a highly restricted environment, actually. But when we're talking about hate speech, the intent of the speaker really does matter. And, you know, it's not just going away to intending violence. It's, you know, are you really trying to insult someone? Or are you simply using it in some neutral way where a person happens to be offended? And the latter is categorically different from in my perspective than the former. Yeah, I mean, I guess that the things that you say to someone, especially if you are in a certain position in relationship to them, like as a teacher or a mentor, that they end up impacting their performance, right? And their success in the world and their ability to do things. You know, I think that's a lot of the examples she's giving is how well people did on tests, how well they performed in certain situations, in the same way that I'm sure you have a lot of professors that told you you're wonderful, and that ended up making you feel like you could go forward and, you know, be the successful, amazing person that you are. People can do the opposite. And when it falls into a hate speech context, when you have people that are doing that to certain groups of people over and over and over, that that might be something we want to pay attention to and possibly even prohibit in some way. Yeah, I mean, I agree. I'm pretty sympathetic with what she's saying, but I disagree with her language a little bit. You know, I agree with her that that white male Christian professor was quite wrong. And I think he ought to be able to be disciplined for that because he's being cruel. He's abusing his position in the classroom. But I tend not to, you know, jump to the same language. Oh, it's a power analysis. Well, there's power all around us. There's hierarchy in every encounter we have as human beings. So that's just an overbroad use of that term too, in many contexts, though in this one, I think might be appropriate. But I just, a conversation is hard. It doesn't just happen. And it requires active construction of environments that requires a willingness of people to listen. And that's actually pretty darn rare, you know, at this quote from Jeanette Winterson about how just how rare it is to be able to understand each other. You know, that requires affirmative construction. Obviously hate speech is corrosive of that. Obviously gratuitous insults are corrosive of that. But how do we restrict bad speech without throwing a baby out with the bathwater? Yeah. I mean, it is interesting because you can see hate speech prohibitions as an attempt to do just what you said, which is to create a productive environment for conversation. But but I think sometimes it's just about the sort of language people are comfortable with. Like, one thing that, you know, at UChicago, the word that's used a lot is civility, right? Like this idea of having sort of like civil conversations. And behind the word civility is an expectation of treating another person with dignity. And I mean, actually, I'm curious, what's your reaction to that? When people say, when we tell students that we want them to engage with each other in a manner that's respectful and civil, what are we saying to them? I mean, I think that's really powerful. Democracy requires that we treat every single person as equal, right? And as a potential source of knowledge, everyone that we encounter and worthy of respect, that's Immanuel Kant. And, you know, I think that's ultimately the Bible. That's a deep demand of democratic discourse. John Dewey talks about that a lot. But the question is, how do we go about doing that? Do we do that with legal restriction or not? And that's really the debate. It's really hard to construct that. Generally speaking, in a democracy, in a plural democracy like the United States, we're going to have a lot of offense and morally different ways of constructing the world. You know, some of the issues we've talked about on our show, abortion, these are things which are, you know, really deeply divided in which both sides think that they have morality on their side. And in their conversation with each other, it could get pretty ugly. And you don't want the law to come down on one side or the other of a contested moral issue when people are advocating for their deeply held, genuinely held positions. So that strikes me as one of the dangers there. Yeah. And I agree with all of that. But the way that I see hate speech is a very narrowly restricted set of situations that we decide to regulate because we have one group of people that has historically been targeted for a stripping of their human dignity. So, you know, we don't want to regulate how everybody speaks to each other. But when you have a group of people that has been on the receiving end of sort of speech that is trying to press down their human dignity and keep them from participating in society, that's when we might want the law to intervene. And what we see in Europe is overbroad use of that. So Bob Dylan, for example, was prosecuted for hate speech in Europe for an offhand comment he made about Croats and Serbs. You know, all of a sudden some prosecutor in Paris says that he's violating hate speech norms. Well, what is to prevent that from happening if we adopt these rules? And that's not even the kind of intentional misuse of them by political forces trying to get advantage over the other side. Today as we're recording this episode, you know, Ron DeSantis and other Republicans are talking about how if they win the presidency, they're going to weaponize the Justice Department. They're going to treat it as part of the unitary executive, which means that they're going to go after their political enemies, which means we're headed towards a kind of fascist state, I'm sorry to say. And, you know, if they were to win and follow through on that. Wow. Can you imagine what hate speech laws would look like if they were being prosecuted by a Justice Department, bent on vengeance? You and I would probably be up in the dock, Claudia. I'll see you in the prison close. I know, but I do want to say just one thing about this that because I do think a lot of the arguments here are that you just don't trust, you don't trust the state or whoever would be creating restrictions to do it in a fair way and then not to use it against the people you care about, which I think is totally fair. But, you know, the other thing that's in my head when I hear that is just that in the meantime, there are a lot of groups paying a price for our inability to do this effectively. You know what I mean? Like the people that are getting off of all these social media sites because they don't want to deal with the things that are happening or whatever. The hate speech is continuing and if we can't create laws and regulations that we think are fair and that are not dangerous, then there is a price that's being paid by groups of people already. It's just which prices we think are the right prices. Well, no one denies that there's a price being paid. No one is in favor of hate speech. I'm not in favor of hate speech. My God, I'm horribly offended by it. But my question is, how can we actually do something about it in our context that's likely to really be effective? I think the social media could do a lot and they choose not to and that's fine. We can regulate them. We can incentivize them to do better. I have no problem with that. Those are private entities that are making money off of all of our information and data and our contributions. I have no problem with regulating them. There have been other moments where we've been afraid of this kind of regulation. This reminds me a little bit of sexual harassment, sexual harassment in the employment context. There was a time in the early 2000s where a lot of people were concerned that these kinds of sexual harassment prohibitions would end up either catching the wrong fish or leading to a chilling of interactions in the workplace that were going to be too high a price to pay. People might feel differently about this, but in my mind, being protected against sexual harassment was worth all of that other stuff. I don't think any of those terrible things have happened, at least not to the extent that people thought that they would. I wonder if this is really a similar situation where we think that certain things would happen. I think we are in a different political moment with different kinds of potential leadership in this country, but I mean more broadly that maybe it's really the same kind of balance. Remember that there are similar kinds of protections in the employment context for employment discrimination. If someone is to use racial epithets in the employment context, that is discrimination and we don't have to go all the way to hate speech to say that. You're right, maybe there would be other consequences. I didn't, by the way, this is something where going to law school changed my mind. Maybe it was studying with Bob Post that changed my mind. Before I went to law school, I was like, "Hate speech? Why should we allow that? Why should we allow pornography? This is horribly harmful speech." Then when I got there, I realized that the First Amendment really allows for a kind of openness, which is rather amazing. It allows the development of all kinds of social movements. It allows for a kind of epistemic anti-foundationalism to use a kind of phrase that sounds like it would have rolled off Bob Post's tongue, which is that we could become anything through our national conversation. Yeah, we could become a hate-filled, we could really destroy our democracy, but we also could change our identity completely. We could become a Spanish-speaking country. We can become a country where the majority is celebratory and joyous and all these things. There's so many possibilities in the First Amendment. Basically, what it is in the end is a trust of what he was calling the public to get it right over the long run. That runs over all kinds of individual interests. There's all kinds of harms and suffering on the way on the part of individuals, but it's that faith in the public and democracy, which at the end is the foundation of it. Maybe that's running out. Maybe people are no longer willing to go with that. I know that there's demand for speech regulation from both the left and the right now, so maybe an emerging consensus. It's not just on social media, but I, for one, may be the last liberal, but I think I was convinced by what I learned in law school, and I think that's probably the right position. Please write a book titled "The Last Liberal." I'll do your forward for you. Oh, that's so nice of you. I think one of the, the final thing I'll say before I move on is that one of the tricky things about hate speech is that sometimes I think it's actually many different things. For example, there are situations where what we might call hate speech, that it's actually speech that's being used to silence people. The entire purpose of it is to make an entire group of people quiet. In that situation, hate speech is really harming the free flow of ideas. There are some situations where it's meant to be a distraction from the actual conversation, and then there are other situations where it is the conversation. I think we're trying to create these legal categories for, I think, what is actually a really complicated phenomenon. Maybe that's why we keep just running into issues, because there aren't really two things happening here, hate speech and free speech. There's actually a really complicated set of things happening in context that are new to us still. I agree. Entitled is a part of the University of Chicago podcast network and is produced with the support of Yale and University of Chicago Law Schools. Our show is produced by Matt Hodup and Lea Cisrin. Thanks for listening.