Is Hate Speech Defamatory?

Waldron on the harm in hate speech.

Posted Mar 30, 2019

Wikimedia Commons
Source: Wikimedia Commons

In The Harm in Hate Speech, law professor Jeremy Waldron argues that hate speech is a kind of group libel that defames the members of the targeted group.

Defamation, loosely defined, is the dissemination of a falsehood about a person or group that damages the person’s or group’s reputation. In legal theory, a distinction is drawn between slander, which is oral defamation, and libel, which is defamation published in print, writing, or broadcast through radio, television, film or the public internet. Unlike slander, libel must have a certain permanence of form.

The sort of group libel to which hate speech belongs, Waldron argues, is criminal group libel. Criminal libel used to play a greater role in U.S. jurisprudence than it does today, where libel and slander commonly are treated as torts. But several states continue to keep criminal defamation laws on the books alongside their civil defamation laws, including Florida, Idaho, Kansas, Louisiana, Colorado, Michigan, New Hampshire, and North Carolina. Montana’s criminal defamation law was rendered unconstitutional by U.S. District Court Judge Donald Molloy on March 18, 2019, in Myers v. Fulbright (2019).

The elements of criminal libel laws tend to be similar to those of civil libel laws. However, a crucial difference between criminal and civil libel is that in civil libel, the damage is to a private or public individual but not to the public as such. In criminal libel, by contrast, the damage is to the public or the state rather than a particular person.

The target of criminal libel can be another person — a public official, a social group, a government entity, a public school, and even a deceased individual. While dead people obviously cannot sue others, defamatory effects on their reputation can sometimes be considered a damage to the state or the public.

Because the harm in criminal libel is to the state, criminal libel is particularly well-suited for Waldron’s purposes. If the state is the injured party, there is no need to worry about whether hate speech causes actual damages to particular group members; all we need to worry about is whether smearing group members’ reputation harms the state (and not just the group members).

How exactly does Waldron think hate speech damages the public? Hate speech damages the public, Waldron argues, when it succeeds in creating the appearance that members of the targeted group have a diminished social or legal standing in society than members of other groups. This change in how society appears to its citizens is a disturbance of public order, and this is what hate speech laws offer an assurance against — for all of us.

However, on Waldron’s view, the harm in hate speech isn’t just a public harm. The public harm of hate speech supervenes on its harm to individual group members. Hate speech harms individual group members, Waldron argues, because it violates human rights, specifically the right to dignity.

Conceding that “dignity discourse is cursed by equivocation” (p. 139), Waldron imbues the term with new meaning. Dignity, on his proposal, lies at the foundation of each person’s reputation: It’s the social (or legal) standing they are publicly regarded as having. The social standing people are regarded as having ought to be the same regardless of their membership of a particular group. Qua social or legal sta­tus, Waldron argues, a person’s dignity is not immutable, but needs to be “established, upheld, maintained, and vindicated by society and the law” (p. 60). As members of society, we are all required to “refrain from acting in a way that is calculated to undermine the dignity of other people” (p. 60). This is the requirement that hate speech laws reinforce.

But if people’s social standing can be diminished by others, how does Waldron come to the conclusion that people should be granted equal dignity regardless of their membership of particular groups?

Waldron’s answer is that “we accord people dignity on account of the sorts of beings human persons are” (p. 86). Because human persons have the same inherent worth, they are entitled to be regarded as having the same social status. When people are portrayed as subpar citizens in speech or action by some members of society, other members may mistakenly come to regard them as having a lower social status than they do.

Waldron’s claim — that the harm of hate speech is that it defames the targeted group — is likely true for the case of hate speech that makes a factual claim. One example of hate speech that Waldron’s suggestion accommodates is hate speech that takes the form of a pseudoscientific claim portraying members of the targeted group as subhuman. This type makes the false claim that the targeted individuals have a lower social status by virtue of belonging to a particular social group.

Another example of hate speech that Waldron’s suggestion accommodates is speech that charges members who belong to a particular group with a crime, which would count as libel per se. A claim of involvement in “vulgar” illegal activities, such as prostitution, necrophilia, bestiality, incest, exhibitionism, or voyeurism, can serve as incitement to contempt by falsely portraying targets as contemptible, whereas a claim of involvement in “evil” illegal activities, such as treason, espionage, terrorism, murder, drug trafficking, child abuse, kidnapping, hijacking, or blackmail, can serve as incitement to hatred by falsely portraying targets as evil and dangerous.

But many other types of hate speech fail to be defamatory, as the notion of defamation is used in legal theory and practice.

Hate speech that doesn’t fall under the concept of defamatory speech includes: (1) non-factual statements, (2) fair comment of public concern, (3) self-referential trolling memes, and (4) broadcasts of unaltered private documents, pictures, or recordings.

(1) Non-factual hate speech doesn’t make a factual claim that can be shown to be objectively true or false. This automatically disqualifies it as defamatory, as defamation by definition is the dissemination of a falsehood. Take neo-Nazi Erica Alduino’s statement that “Even blacks on the right side of the bell curve can’t engage in abstract thought,” cited by Southern Poverty Center on March 12, 2019. This statement arguably lacks substantial meaning, as it remains underspecified what "abstract thought" means. But if it lacks substantial meaning, then it is not objectively false (or true). So, it cannot be defamatory.

Many (if not all) slurs fall into this category as well. For example, when a white person hurls the N-word at a black person, they convey their “low” opinion of black people, but opinions (that truly are opinions and are not merely framed as such) are not factual, and therefore cannot be shown to be objectively true or false. So, hurling slurs at others doesn’t by itself count as defamatory.

Generally speaking, all speech acts, other than those which aim at representing the world as it is, fail to be defamatory. Orders, demands, commands, requests, pleads, permits, invitations, and suggestions, also known as directives, fall into this category. When making a directive speech act, the speaker’s goal is to make the world fit his words, not to utter words that fit what the world is already like. For example, if you yell, “Close the door!” to get the hearer to close the door for you, your goal is to get the hearer to change the world in such a way as to match your words. You want the hearer to change the world as it currently is and cause it to become a world in which the door is closed. If the hearer follows your order and closes the door, then your order is satisfied. But orders and other directives cannot be objectively true or false, and therefore cannot be defamatory. The same goes for promises, pledges, vows, oaths, refusals, and other so-called commissive speech acts.

Threats can be commissives, or a mixture of directives and commissives. When making a threat of the comissive kind, the speaker commits himself to do something bad to the person he threatens by making “a promise” or by swearing that he will do it. In the case of a true threat, the speaker threatens to cause physical harm to the hearer. But a speaker can also threaten to cause emotional harm, embarrassment, or shame.

Consider the following toxic statement made at the Nuremberg trials by Robert Ley, chief of the German Labor Party: “We swear we are not going to abandon the struggle until the Last Jew in Europe has been exterminated and is actually dead.” This is a commissive threat to murder the Jews who survived the Holocaust and who reside in Europe. Although it has the marks of a true threat, the government has an interest in protecting witness testimony that is not in contempt of court. So, it would be unlikely to be judged to be a true threat.

A threat can also be a mixture of a directive and commissive and order, as well as a conditional promise to do something “bad” to the person who is threatened. If, for example, you shout, “Get off my property, or I will shoot!” (and you are sincere), then you are ordering the intruder to get off your property, and you are at the same time promising to shoot him if he doesn’t get off your property. So, a threat can be rendered as a promise to do something “bad” to the hearer, for example shoot him, unless he complies with your order.

You can use a sentence to make a speech act without making it explicit which speech act you are making. For example, you use the words “My brother has a black belt in karate” to threaten the hearer, even though you are not making an explicit threat. The claim made by a literal reading of the sentence is objectively true or false: Either the speaker has a brother with a black belt in karate, or they don’t.

But the threat itself is not assessable on the true-false dimension, and therefore cannot be defamatory. As threats cannot be defamatory, defamation clearly isn’t what makes threatening hate speech harmful.

(2) Commentary of public concern, or social critique, isn’t defamatory, because it’s privileged (or protected) speech. For example, following the shooting of the black teen Michael Brown in Ferguson in 2014, the neo-Nazi site the Daily Stormer claimed that “Actually, No, Black Lives Don’t Matter.” Although this statement implies the false claim that it’s okay to kill black people, the claim can be seen as furthering the hate group’s political agenda, which means that it would likely be regarded as protected speech.

(3) Self-referential trolling memes, like the 4chan’s meme “It’s Okay to be White,” are typically published with the intention of diverting attention away from genuine discussion to further a cause, but they fail to be defamatory, because they are referring to the speaker’s in-group. If, for example, a copycat commented on a feminist blog that “It’s okay to be a man” out of context, this would (at best) betray malicious disregard for furthering feminist causes, but it would be a stretch to call the comment defamatory.

(4) Broadcasting an unaltered document, picture, or recording of a person’s private activities without their consent counts as speech. Yet this type of speech isn’t defamatory, because it doesn’t convey a false message. If, for example, you include a random picture from Google Images of a crying woman in your blog post about female rape victims without permission, the overall impression given of the woman would be highly offensive (by a reasonable person standard), yet it would not be defamatory.

The upshot is that Waldron’s thesis that the harm of hate speech lies in its defamatory nature only applies to a limited class of hate speech. This raises the question of whether hate speech that isn’t defamatory might be rendered harmful in some other way. I will address this question in a subsequent post.  

The first post in this three-part series on hate speech can be found here.