Brian Hutler Hate Speech, Political Conversations, and Citizenship
Maggie McKinley: Tension b/t speech and protection of minorities. Integration of distinctive communities and institutions leads to conversations, especially b/c most integrations are by force. Exposed for some scholars the failures of liberalism in resolving historical injustice/structural inequality. Cf. MacKinnon’s critiques of sexual harassment and pornography as destructive of community—excluding women through semiotics of power.
Hutler argues for regulation of hate speech as inclusivity measure, but tries to do that through more democratic theories: Meiklejohnian theories and political science scholarship on deliberative democracy growing out of Habermas. Empirical depth to deliberative democracy through the use of ordinary language philosophy/Grice: argues for a new ideal model of speech, the conversation, rather than the “marketplace of ideas.” That alone is a contribution to law & political science.
Suggestions: Normative components of argument. Conversational model: speech has more to it than just dialogue and conversation, enacted in part right here with the commentary. Nothing conversational about this part. Some of our free speech doctrines already protect conversational aspects of speech, but that doesn’t mean we should keep doing it or make it an explicit goal. Potential normative justifications—e.g., deliberation is great; it’s its own justification. But: What does it mean to put majority and minority in a room?—may homogenize through majoritarian decisions. Votes allow the minority to continue to hold its views. Does valuing conversation silence other methods of communication, like Fuck the Draft? Is it exclusion from the marketplace of ideas that we’re concerned with, or exclusion from educational environments, workplace environments, civil discourse/social life through microaggressions? Internet versus student speech—a lot of the hate speech conversation there is about participating in educational opportunities.
Finally, are we doing this because protecting conversations protects minorities, and our aim is to protect participation of minorities/improve their lives? Is hate speech the beginning of a solution or is the same argument leading us to things like affirmative diversity training as the next step of a conversational model? Example: Rising intonation as a sign of lack of leadership but also as a sign of being female: should we train students during mock oral arguments to not gesture, not have female affect, etc.? If you have a stigmatized affect, should we train people out of that to improve the conversational approach?
Microaggressions as hate speech: when Easterners casually throw around “off the reservation,” should that be regulated? Whose norms will be chosen? Conversational norms vary widely.
Structural suggestion: combining internet and schools may not help—disguises some tensions in your argument. Distinction b/t hate speech and harassment may be important.
Hutler: agree about difficulty of defining norms, but at higher theoretical level there is an overarching norm of what Grice calls cooperation—the goal of conversation is to reach some kind of mutual understanding. The goal of having that kind of conversation, even if we don’t achieve it, has a kind of moral value. It’s valuable for individuals to be able to express themselves in a context where someone else cares; there’s also a value in forming a relationship, even if fleeting, which is designed to achieve mutual understanding even if it doesn’t occur. Playing w/ idea of individual freedoms understood as protecting relationships/relationship formation, not just individual activities.
As citizens, we use conversations to structure our interactions at the ground level. In the workplace: legal standards are applied in the office, and there it matters that minorities get to have their say and get and adequate/equal level of representation, but more to the point in an interpersonal context it’s about ideally us coming together to agree on some way of interacting. That’s why focusing on universities is useful. It’s a place where people live and interact on a small scale as citizens.
RT: The press and the relationship to the ideal of conversation: asynchronous? But it’s also one to many. Images as counterexamples to the ideal of conversation—think of the little pamphlet mentioned by Justice Scalia in the abortion protest case, which is going to be a picture. Other complicating factors in how we interact: memes—can you engage in dialogue with a meme? Can you argue with a meme? Stories: George Lakoff and the metaphors we live by: what does it mean to be in conversation with a story? Persuasion: is it the opposite of deliberation? Is it incorporated into deliberation but also capable of occurring in a non-deliberative way? People have projects in conversations; that matters to the kind of conversations they have. The university of your ideal: in US, people don’t live on campus together, except at the elite colleges—they go home or to work. What does that mean for your account? Perhaps just that we don’t show by behavior that we as a society value what democratic deliberation theory asks us to value.
Hutler: In terms of the press: Speech that isn’t directly conversational is still deserving of protection. For him, the value of those things comes through either trying to understand what the artist/speaker meant—they may or may not care what I think—or talking about it with some third party. Think of discussion forums on newspaper websites. Starting points for conversations—and it was always that way: newspapers contributed to public discourse not just by creating a public record but by creating the nexus for a conversation w/others.
The goal is mutual understanding; it doesn’t always work out. Persuasion isn’t necessarily relevant; he’s not sure it counts as mutual understanding. If you browbeat someone into agreeing w/your position you haven’t achieved mutual understanding. Lots of valuable conversations might not result in any kind of agreement or shared viewpoint. Sometimes it’s bad faith to go into a conversation aiming to get the others to agree. (Which to me implies that this theory should give zero protection to commercial speech.)
Q: in a democracy, the purpose is at some level to persuade, right? Isn’t that a value we want in a democracy?
A: If what happens is that I come to understand what you’re saying and think it’s right, that’s wonderful.
Q: Problems of hate speech regulation often come at the level of definition of what counts as hate speech. By improving the conversation, you mean shutting up certain speakers, which contradicts the justification for free speech.
A: definition may have to be tailored to contexts.
Q: there are many settings not dedicated to public discourse and democracy. The classroom, the workplace, the dorm room? The theory is very hard to implement.
Q: conversations have projects; sometimes there are conversations about non-conversational statements/speech that others perceive as hateful. How do we get speech about that if we shut down the hateful remarks?
Q: do people need to contribute valuable ideas to have a right to participate? The Westboro Baptist Church doesn’t have anything to offer, but their presence contributed to a conversation by others and didn’t slow the progress towards sexual equality. Maybe you need hate speakers on campus to have a conversation about hate speech. [While I’m sympathetic to this argument in the abstract—or at least as justification for not removing certain groups who’ve shown up in public spaces—you don’t need slavery advocates on campus to have a conversation about slavery, or Holocaust deniers to have a conversation about the Holocaust. Especially since speech always crowds out other speech, if only by taking your attention away from speech you might otherwise be encountering, the “your bad speech sparked good speech” argument doesn’t seem to me to justify any speech in particular.]
Q: Reminder that people are forced out of conversations by certain speech: including some people means excluding others, and so you can't get the hate speech in the conversation for "free." This is an empirical point that matters. [The libertarian response is often to those forced out "toughen up"--that is, change who you are and how you think about speech that hurts you, and come back. But it is at least reasonable to ask whether we should tell the hateful speaker to change who they are and come back.]
A: Yes, also wants to maintain the possibility of conversation with the hateful speaker.
Q: Habermas may work better for the college sphere than elsewhere: it is a place where democratic conversation is the/a key goal. Recognition of our common humanity. If you say to someone "you're not human like I'm human," the example of conservatives who won't talk about their views about Obergefeld is not appropriate. The conservative students don't think that liberals don't think they're fully human. The swastika etc. are signals that people who were previously excluded should still be excluded because they don't merit treatment as people. [Not sure I agree about how conservative students perceive the situation, but ok.]