The wooly thinking of John Paul Stevens

In his review of Jeremy Waldron's new book in the NYRB, The Harm in Hate Speech, John Paul Stevens, the recently retired Supreme Court Justice, outlines how Waldron starts the book:

"Waldron begins by providing the reader with the facts of what may well have been an actual incident in New Jersey. A Muslim man, walking with his two children, turns a corner on a public street and is unexpectedly confronted with a sign saying: “Muslims and 9/11! Don’t serve them, don’t speak to them, and don’t let them in.”

Stevens then goes onto claim the following:

That example of anti-Muslim speech is important for two reasons. First, it has nothing to do with violence. The speaker has not threatened anyone, and there is no suggestion that the message will provoke a violent response by any of its targets or violent attacks against Muslims by those who sympathize with the views of the speaker. Thus, most of our Supreme Court opinions concerning the First Amendment protection for speech that may lead to violence are simply inapplicable to Waldron’s thesis that government should regulate speech of this kind. Second, the principal reason why Waldron believes such regulation would be desirable is not just to protect the targets of hate speech from offense. Rather it is to protect the inclusive character of a society that should respect the dignity of all of its members.

Waldron’s example seems to assume that the justification for regulating hate speech applies equally to the anti-Semitic speech and the anti-Muslim speech that he quotes. There are, however, two differences that merit comment. First is the temporal difference. Although anti-Semitic speech still occurs, it has almost disappeared from the public forum in the United States. The fact that social disapproval rather than government intervention brought about the change lends support to the general presumption against official censorship.

Second, while no group of Jews had carried into action a specific threat to public safety at the time that hate speech against them was prevalent in this country, today public concern about the potential behavior of a small subset of Muslims has been prompted by recent events. Toward the end of World War II, the kamikaze suicide bombers were Japan’s most effective weapon against our naval forces, and today it is suicide bombers like those who attacked the World Trade Center on September 11, 2001, who pose the most immediate threat to our national security. While the great majority of American Muslims—including many relatives of persons killed on that date—are just as offended by that attack as any other American, and have the same interest in preventing any future attack, one cannot exclude the possibility that there may be a few people of Muslim faith who pose a special danger.

That possibility does not justify the hate speech identified by Waldron. Nevertheless, such speech may generate responses by both neutral observers and respected leaders of the Muslim community that will both produce a better understanding of that community’s culture and correct misleading statements by extremists. Waldron is right to criticize the “bravado” of liberals who call “attention to their ability to bear the pain of this vicious invective [by proclaiming] ‘I hate what you say but I will defend to the death your right to say it.’” Nevertheless, I think we need more speech on this topic, not less, even if that means permitting some speech that is offensive.

This is a bizarre argument, especially coming from a former Supreme Court Judge, and especially in the New York Review of Books.

The argument, insofar as it makes sense, goes as follows: (1) the situation Waldron outlines has nothing to do with violence. [Which then leaves aside the violence of being alienated from a community, the violence of not being spoken to, and not being able to interact with anyone; what Arendt would call civic death]. (2) A "small subset of Muslims" has made a threat to the United States. [This point seems ok, though what it has to do with hate speech is uncertain]. (3) The greatest threat posed to the USA today is by suicide bombers. [This is insane enough I will not even comment on it]. (4) Even if this is the case, Stevens says, that "there may be a few people of Muslim faith who pose a special danger…does not justify the hate speech identified by Waldron." Great.

Except that Stevens goes onto claim that "such speech" may generate understanding. The argument here is something like: speech, any speech, about this issue, will generate further understanding. Because we need "more speech on this topic," it means "permitting some speech that is offensive."

There is a willful absence of criteria here. More speech is not necessarily better speech. More speech, if it is, as in Waldron's example, bigoted and alarmist, does not produce either of the goals that Stevens hope it will produce, unless his argument is that flagrantly incorrect statements will produce responses that correct the flagrantly incorrect statements, which is a bizarre way of asking for further understanding, though it does generate the unlikely possibility that Stevens is in turn hoping his own statements will be corrected, and playing devil's advocate.

It is also totally underspecified why the need for more speech -- and presumably Stevens means speech that leads to one of the two outcomes he outlines (in bold in the quote) -- requires allowing offensive speech, especially if the offensive speech is like the example Waldron gives, which, as far as I can see, leads to neither "better understanding" nor a correction of misleading statements.

While much of Steven's review is cogent, these passages are a prime example of wooly thinking, which could be summarized as follows. (1) There is a threat to the national interest. (2) We should talk about it. (3) Here are some words. (4) And it is good.