Kindly Inquisitors, Revisited

Kindly Inquisitors, Revisited

"Today, what I called in 1993 "the new attacks on free thought" are no longer new. The regulation of speech deemed hateful or discriminatory or harassing has spread internationally and dug in domestically. In the United States, hate-speech laws as such are unconstitutional. But indirect, bureaucratic prohibitions have burrowed into workplaces and universities. Federal law holds employers civilly liable for permitting the workplace to become a "hostile environment"-a fuzzy concept which has been stretched to include, for example, a Bible verse printed on a paycheck (could upset an atheist) or a Seventh-Day Adventist's discussion of religion ("religious harassment" because it "depressed" a plaintiff)...

Brandeis University found a professor guilty of racial harassment for explaining the origin of the word wetbacks. But the idea that minority rights justify speech codes and quasi-judicial inquisitions is barely controversial among academic administrators. History will someday wonder how the very people who should have been most protective of intellectual freedom took such a wrong turn.

Abroad, without a First Amendment to act as a buffer, direct government restrictions on hate speech have become the norm, enacted by many countries and encouraged by several human rights treaties... The United States and Hungary, according to the British political theorist Bhikhu Parekh, are the only countries which have recently resisted the trend to ban hate speech...

Version 2.0 of the case for bans on speech relies less on metaphorical notions like "words that wound" and "verbal violence," which could mean almost anything. Instead it looks to a narrower hostile-environment doctrine which justifies penalties only in relatively extreme cases, such as when speech seems likely to create a pervasively demeaning or threatening social environment for recently persecuted minorities, denying them (the theory goes) equal status as fully protected citizens...

I don't think Version 2.0 has succeeded in answering the challenges that I and others have posed. It has not demonstrated that hate speech silences minorities, rather than mobilizing or energizing them; it has not shown that restrictions ameliorate hate or silence haters, rather than intensifying hate and publicizing haters. It has not figured out how to make political authorities interpret and enforce political restrictions apolitically, or how to prevent majorities and authorities from turning restrictions to majoritarian and authoritarian ends. It does not reckon the cost of overdeterrence and of chilling important but controversial conversations; or the cost of stereotyping minorities as vulnerable and defenseless; or the cost of denying the agency of the listener, who, after all, can choose how to react to the maunderings of haters. It has yet to enunciate a limiting principle. Why, after all, stop with speech deemed harmful to minorities, when there is so much other socially harmful speech in the world? Doesn't it harm society to let climate-change deniers yammer on?...

Society benefits from the toleration of hate speech, and so do targeted minorities...

The case for hate-speech prohibitions mistakes the cart for the horse, imagining that anti-hate laws are a cause of toleration when they are almost always a consequence. In democracies, minorities do not get fair, enforceable legal protections until after majorities have come around to supporting them. By the time a community is ready to punish intolerance legally, it will already be punishing intolerance culturally. At that point, turning haters into courtroom martyrs is unnecessary and often counterproductive.

In any case, we can be quite certain that hate-speech laws did not change America's attitude toward its gay and lesbian minority, because there were no hate-speech laws. Today, firm majorities accept the morality of homosexuality, know and esteem gay people, and endorse gay unions and families...

To appeal to a country's conscience, you need an antagonist. Suppression of anti-gay speech and thought, had it been conceivable at the time, would have slowed the country's moral development, not speeded it. It would have given the illusion that the job was finished when, in fact, the job was only beginning. It would have condescended to a people fighting for respect...

You cannot be gay in America today and doubt that moral learning is real and that the open society fosters it. And so, 20 years on, I feel more confident than ever that the answer to bias and prejudice is pluralism, not purism. The answer, that is, is not to try to legislate bias and prejudice out of existence or to drive them underground, but to pit biases and prejudices against each other and make them fight in the open. That is how, in the crucible of rational criticism, superstition and moral error are burned away.

I believe the hope of living in a world free of discrimination and prejudice is a utopian pipe dream, and is as anti-human and dangerous as most other utopian pipe dreams. The quest to stamp out discrimination or bigotry or racism wherever it appears is a quest to force all opinion into a single template. I reject the premise-not just the methods-of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, which calls on signatory countries to prohibit "all dissemination of ideas based on racial superiority or hatred." In my view, if minorities know what is good for us, we should at every turn support pluralism, with all its social messiness and personal hurt. Politicians and activists, however well intentioned, who would shelter us from criticism and debate offer false comfort.

History shows that, over time and probably today more than ever, the more open the intellectual environment, the better minorities will do. It is just about that simple. So here is a reply to advocates of hate-speech regulation who wonder if, today, it really serves any purpose to let people go around touting The Protocols of the Elders of Zion. The answer is yes, it does. We cannot fight hate and fraud without seeing them and debunking them. John Stuart Mill, writing in On Liberty in 1859, was right. "Wrong opinions and practices gradually yield to fact and argument: but facts and arguments, to produce any effect on the mind, must be brought before it."

Today I fear that many people on my side of the gay-equality question are forgetting our debt to the system that freed us. Some gay people-not all, not even most, but quite a few-want to expunge discriminatory views. "Discrimination is discrimination and bigotry is bigotry," they say, "and they are intolerable whether or not they happen to be someone's religion or moral creed"...

Those of us in the gay-rights movement-and in other minority-rights movements... should be the last people on the planet to demand that anyone be silenced.

Partly the reasons are strategic. Robust intellectual exchange serves our interest. Our greatest enemy is not irrational hate, which is pretty uncommon. It is rational hate, hate premised upon falsehood. (If you believe homosexuality poses a threat to your children, you will hate it.) The main way we eliminate hate is not to legislate or inveigh against it, but to replace it-with knowledge, empirical and ethical. That was how Frank Kameny and a few other people, without numbers or law or public sympathy on their side, turned hate on its head. They had arguments, and they had the right to make them.

And partly the reasons are moral. Gay people have lived in a world where we were forced, day in and day out, to betray our consciences and shut our mouths in the name of public morality. Not so long ago, everybody thought we were wrong. Now our duty is to protect others' freedom to be wrong, the better to ensure society's odds of being right. Of course, we can and should correct the falsehoods we hear and, once they are debunked, deny them the standing of knowledge in textbooks and professions; but we equally have the responsibility to defend their expression as opinion in the public square...

Minorities are the point of the spear defending liberal science. We are the first to be targeted with vile words and ideas, but we are also the leading beneficiaries of a system which puts up with them. The open society is sometimes a cross we bear, but it is also a sword we wield, and we are defenseless without it.

We ought to remember what Frank Kameny never forgot: For politically weak minorities, the best and often only way to effect wholesale change in the world of politics is by effecting change in the world of ideas. Our position as beneficiaries of the open society requires us to serve as guardians of it. Playing that role, not seeking government protections or hauling our adversaries before star chambers, is the greater source of our dignity.

Frank Kameny, an irascible man with a capacious conscience, had it right. In more than 50 years of activism, he never called for silencing or punishing those he disagreed with, but he never cut them any argumentative slack, either. In his spirit, I hope that when gay people-and non-gay people-encounter hateful or discriminatory opinions, we respond not by trying to silence or punish them but by trying to correct them."