Antisemitic hate speech is back on college campuses across America in the wake of the horrific Israel-Hamas war. The hypocrisy of college administrators and faculty, who police the use of pronouns, while permitting Jewish students to live in fear, is an outrage. Yet defenders of free speech on college campuses should hesitate before they demand more censorship. Such censorial powers would undoubtedly be used to marginalize reasonable religious and conservative dissenters further. It will also propagate a sense of virtuous victimization among those with truly hateful views. Giving more power to bureaucrats in colleges or the government to censor speech is a cure worse than the disease.

Other options remain. One approach involves strengthening tort laws to enable those injured by words to bring their verbal aggressors to account. However, for this to happen, the Supreme Court would need to reconsider its ill-advised extension of First Amendment protection into the domain of tort law. The least desirable among the options would be to criminalize “hate speech” as a type of group libel, as is done in other countries, like Canada.

The First Amendment and Hate Speech

Those unfamiliar with First Amendment doctrine may be surprised that much “hate speech” is constitutionally protected in America. Still, hateful words can rise to the level of being criminal. For instance, a threat that causes another a reasonable fear for their safety can be proscribed by law. Similarly, speech that incites others to imminent lawless action is not protected. These types of speech should never be permitted on college campuses. Colleges have a fiduciary duty to keep students safe from harm.

Formerly, tort law was squarely within the arsenal of weapons to hold people accountable for their words. Such torts included defamation, or the spreading falsehoods that damage another’s reputation, as well as intentional infliction of emotional harm, meaning, outrageous conduct that causes severe emotional distress. Regrettably, the Supreme Court has extended free speech protections to torts. As a result, an ever-growing cadre of “public figures” find it all but impossible to collect damages for defamation. Moreover, rogue individuals who intentionally inflict severe emotional distress upon their neighbors can claim First Amendment protection if their speech includes matters of “public interest.”

Take the case of Synder v. Phelps, which illustrates the harm done to persons by depriving them of a fair shot at rectifying a wrong done to them. Members of the Westboro Baptist Church picketed the funeral of Lance Corporal Matthew Snyder, who was killed in the line of duty in Iraq. The church members held up hurtful signs, including ones that read “Thank God for Dead Soldiers” and “You’re Going to Hell.” The father of the slain soldier sued for, among other misdeeds, intentional infliction of emotional harm. The Supreme Court would not allow him to collect damages because most of the signs related “to broad issues of interest to society at large, rather than matters of purely private concern.” Yet the Court did not deny there had been intentional infliction of emotional harm upon the grieving father, nor did it deny that some of the signs were directed specifically at the slain soldier and his family.

It is wrong to extend First Amendment protection to tort law because this allows persons, to whom harm has been done, to be sacrificed for a collective good. Freedom of speech is an essential collective good that promotes an open exchange of ideas. But it exists primarily to protect individuals from government overreach, especially where criminal laws are concerned. The state cannot easily overreach with tort laws, where its role is limited to settling a dispute between private individuals in an impartial hearing. The role of tort laws is to rectify a concrete wrong done to a person, not to punish someone on behalf of society. By inserting the First Amendment into this realm, an injured person is required to bear disproportionately the cost of speech as an abstract collective good. 

Criminalizing Hate Speech to Protect Groups

An alternative approach to allowing persons to sue others for harm caused by words is to criminalize or punish “hate speech.” In other jurisdictions, hate speech is speech that promotes hatred of certain groups. Typically, these collectivities are identified based on race, religion, sexual identification, or the like.

Political philosopher, Jeremy Waldron, in his book titled The Harm In Hate Speech, has defended such laws as having a twofold purpose. First, they serve, positively, to preserve the status of groups as deserving dignity and membership within a well-ordered society. Second, they serve, negatively, “to convey the sense that the bigots are isolated and embittered individuals, rather than permit them to contact and coordinate with one another.” In other words, they exist to defend the dignity of some groups and to ostracize and punish “haters.”

Many of the problems with hate speech laws, so defined, flow from the second, negative facet of these laws. But their problems have at their root the sickness of putting collectivities above individuals. Groups foster collective identity, and with that, collective hatred.

This sickness started the Israel-Hamas war in the first place. The atrocities remind us of Reinhold Niebuhr’s observation that groups can be more immoral than individuals. Fed by a collective sense of grievance as oppressed Palestinians, terrorists raped, tortured, killed, and desecrated the dead bodies of innocent civilians because of their identities as Jews. As Bertrand Russell reminds us, the fact that a group is oppressed does not make it moral. Yet most Palestinians are not terrorists, nor are most Jews oppressors.

Hate speech laws are a perverse response to the sickness of valuing collectivities more than persons because they stoke group grievances. The predictable effect of such laws is to empower one group to use these laws to silence another. Persecuting political opponents using hate speech laws is far less heinous than massacring civilians. But this is a pretty low threshold by which to assess desirability.

Hate speech laws also tend to foster ethical dualism. Groups often perceive themselves to be good, while they ascribe to their enemy qualities such as inhumanity, injustice, impiety, or villainy. Hate laws reinforce ethical dualism by protecting a “just” or “righteous” group while punishing their detractors. This false sense of righteousness is bolstered in no small measure because such groups are protected from criticisms due to the chilling effects of indeterminate hate speech laws.

As a corollary, hate speech laws can make it difficult for outsiders to discuss the moral complexities and ambiguities of actions taken by protected groups. A critic risks having sanctions imposed if their opinions are unacceptable to authorities. Hate laws can chill reasoned criticism, making fair discussion and judgment about protected groups more strained in the public square.

Perhaps the most perverse effect of hate speech laws is that they tend to reinforce the identity and solidarity of the community of “haters.” In some circles, “haters” become untouchables with whom polite company will not associate out of fear of being infected with dangerous ideas. But within the community of “haters,” which is created by shared ostracism, they are apt to see themselves as marginalized, noble, and heroic. Moreover, this sense of solidarity around forbidden ideas can serve to delegitimate the political system within the eyes of those who are ostracized, thereby further radicalizing them.

In sum, hate speech laws are prone to fostering a zero-sum game within the political arena. Certain groups can use the power of the state in a punishing manner in the hope of eradicating negative views about them. Far from quashing objectionable speech, the heavy-handedness of hate speech laws propagates another minority community, one that understands itself to be truly marginalized because they are being persecuted by the law. At the same time, reasonable dissenters who fear social ostracism are apt to hold their tongues, making it less likely that protected groups can be held to account for their misdeeds. Overall, such censorship does more harm than good as it tends to stoke the very social divisions the laws were intended to quell.

Finding a Fitting Remedy

Hate speech laws are not the kind of remedy needed by Americans embroiled in their collective madness of party-based tribalism. Americans need laws that unite people while holding each individually accountable. That great advocate of free speech, Thomas Jefferson, gave counsel which remains as germane today as it was in 1800. “And let us reflect that, having banished from our land that religious intolerance under which mankind so long led and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions.” Sadly, religious intolerance has not been banished. Yet Jefferson’s message to forgo the use of state power to punish heretical ideas remains timely.

Given the pathologies associated with hate speech laws, Americans should reject the temptation to embrace them. Tort law, unlike hate speech law, does not celebrate group identity. Instead, it remedies a direct injury done by one person to another. It teaches that each of us owes obligations to our neighbor, where that neighbor is not an abstraction but a person. Further, it invites juries of peers to decide when lines of appropriate conduct have been egregiously violated. It does not entrust such judgments to university administrators or government bureaucrats.

While tort laws may be preferable to outright speech bans, they are not a silver bullet in promoting basic decency. Like all remedies, they risk creating other problems. The Supreme Court has already canvassed some of these.

One concern is that damage awards may be so excessive that they function like speech bans. Quantifying the costs of emotional pain is notoriously difficult. Juries might also be tempted to favor exorbitant damages. For this reason, in Gertz v. Robert Welsh, the Court proposed guidelines for limiting awards in defamation cases. This is a wise measure. The purpose of tort law should not be to punish but to instruct and correct. We owe duties to care to others and we are responsible for correcting the wrongs we inflict upon them. Guidelines for jury awards are prudent and necessary, especially for the tort of intentional infliction of emotional harm. Measures that dissuade the filing of frivolous lawsuits are also essential safeguards in an angry and litigious society.

In a world of warfare and division, stoked by group outrage, more frank discussion is desperately needed about how to channel anger while recognizing both collective and individual wrongs. College campuses across America are the most visible places where attempts at discussion and reckoning are going awry. Fortunately, there may be low-hanging fruit to be reaped by recalibrating First Amendment speech protections in the domain of tort law. The trick is to avoid the Sylla of censorship, with its propensity to do real social damage, and the Charybdis of promoting license without consequences.

Part of the solution is to let college students and other Americans know that they will be expected to “put your money where your mouth is.”