Nadine Strossen. CREDIT: Amanda Ghanooni.
Nadine Strossen. CREDIT: Amanda Ghanooni.

HATE: Why We Should Resist It with Free Speech, Not Censorship, with Nadine Strossen

Jun 11, 2018

Nadine Strossen gives a rousing, detailed, and convincing defense of free speech as it is laid out in the First Amendment. "American law really is nuanced and makes a great deal of common sense," she says and while censorship of 'hate speech' in other countries is certainly well-intended, in practice the laws have proven to do more harm than good.

JOANNE MYERS: I'm Joanne Myers, and on behalf of the Carnegie Council I would like to thank you all for beginning your morning with us.

It's a great pleasure to welcome Nadine Strossen to this Public Affairs program. She is the author of a very timely book entitled HATE: Why We Should Resist It With Free Speech, Not Censorship, and this will be the jumping-off point for her discussion today.

I believe you all received a copy of her bio, so let me just briefly note that as past president of the American Civil Liberties Union (ACLU) from 1991 through 2008 she has been in the forefront of defending our civil liberties and is well-versed in the tangled history of efforts to protect or constrain hate speech. Currently she is a John Marshall Harlan II Professor of Law at New York Law School.

Few issues are as controversial as the right to free speech, especially when it's pitted against people's desire not to feel attacked or hated simply because of their race, religion, or sexual orientation. While objectionable speech has plagued communities for a very long time, since the election of Donald Trump hate-fueled verbal attacks have increased and at times have become even violent in our public discourse.

In recent decades, the U.S. Supreme Court has traditionally resisted temptations to place limitations on speech, even when it is deemed hateful, and has interpreted the First Amendment as protecting most speech from government restrictions. It's interesting to note that in comparison, most other democracies—Canada and much of Northern Europe, for instance—expressly restrict hate speech through national legislation. This has led many human rights activists in those countries and in international agencies to criticize those laws and to advocate the U.S. approach.

In HATE: Why We Should Resist It with Free Speech, Not Censorship, Nadine dispels the many misunderstandings that have clouded the perpetual debates about this topic, including the equally erroneous assertions that hate speech is either absolutely unprotected or absolutely protected. In laying out a compelling argument against policies that try to restrict what individuals are allowed to say, she tells us that the way to resist hate and promote equality is not censorship but argument: Democracy succeeds only when the thoughts and aspirations of all its citizens have the right to express their point of view.

As battles loom over the line between free speech and hate speech, the question becomes: What constitutes the intolerable? When is speech truly hate speech, or alternatively, simply a cherished right protected by the First Amendment to the Constitution? Are there restrictions society can enforce on words we despise?

For the answers, please join me in welcoming our guest today, Nadine Strossen from Hopkins, Minnesota. Thank you for joining us.

NADINE STROSSEN: Thank you so much, Joanne. As you might have inferred, we figured out that we have a connection going back to the suburbs of Minneapolis and St. Paul.

I was so struck—and I want to thank Joanne and everybody associated with the Carnegie Council for organizing this and for having me here—by the impressive website and the mission statement, to "enlarge the audience for the simple but powerful message that ethics matter, regardless of place, origin, or belief." It's a very moving mission statement.

The specific ethical principles that the Carnegie Council advocates include human rights and dignity, and of course that mission and that message dovetails very much with the mission and message of my book, namely that we have an ethical responsibility to resist hate. Note that the only verb in the title is "resist," so it's not only a book that is anti-censorship, which it certainly is, but it is also a call to urge all of us to exercise our right—and I would say a moral responsibility—to raise our voices to counter hateful, discriminatory, and stereotyped ideas.

My book also argues that we all have fundamental human rights—again I'm going to quote the mission statement of the Carnegie Council—"regardless of place, origin, or belief," among other factors, and these rights include not only freedom from hateful, discriminatory conduct, but also freedom of belief and freedom of speech. In my view, based on experience and observation, these rights are mutually reinforcing.

We hear so many arguments today that we have to prefer—and college students' surveys show that students believe—that the goal of promoting diversity is so important that we should sacrifice freedom of speech in order to advance it. I am here to say that we don't have to make that choice, because these rights are mutually reinforcing. We are entitled to and can enjoy liberty and equality and civil liberty and civil rights. While censorship in all these other countries, as Joanne mentioned, is certainly well-intended, I certainly endorse the goals of those laws, to promote equality and dignity—two of the goals of the Carnegie Council as well, also diversity and societal harmony—in fact the laws in practice do more harm than good to those very vital goals. In fact, focusing on that goal of societal harmony, my book also ties into the Carnegie Council's goal of promoting peace.

I quote many experts from other countries who concur based on actual experience that hate speech laws, while intended to reduce divisiveness and promote harmony, actually in effect in operation do the opposite. I would like to quote just a few of them. I know this audience is particularly interested in the international dimensions of the issue, so I want to stress that.

Let me start with an Oxford professor—along with my dear old friend and colleague Monroe Price [who is in attendance]—Timothy Garton Ash a couple of years ago wrote a wonderful comprehensive book about freedom of speech, and he concludes, looking at the hate speech laws in his own country, the United Kingdom, and many other countries, that on balance they do more harm than good. In particular he says, "Far from encouraging harmony, these laws create a perverse incentive to stir up discord." [Editor's note: For more from Ash and Free Speech, check out his 2016 Carnegie Council talk.]

Also in support of that position, there was an entire book written by a South Asian scholar who teaches at Hong Kong Baptist University named Cherian George. A couple of years ago he wrote a book called Hate Spin: The Manufacture of Religious Offense and its Threat to Democracy, and he created this term to describe the phenomenon that is so widespread in countries that have hate speech laws, that those laws become incentives for politicians to spin expression by rival groups as hate speech or even to provoke them to issue such speech and then bring charges and stir up further hostilities to their political advantage.

Let me cite just one more international expert on this point, former Indian Attorney General Soli Sorabjee, who said: "Experience, including in India today, shows that criminal laws prohibiting hate speech will encourage intolerance and divisiveness. For example, fundamentalist Christians, religious Muslims, and devout Hindus seek to invoke the criminal machinery against each others' religion. To combat bigotry and promote tolerance, we need not more repressive laws but more free speech." That is the term that we lawyers describe that more speech—we often call it "counterspeech"—any speech with a message that counters either the expression or the potential harm of hateful ideas.

I was so struck as I did the research for my book at how much support and increasing support there is for what we think of as the "American" position. As Joanne's excellent introductory remarks indicated, as a matter of law the United States is alone, but as a matter of critiquing the laws we are developing more and more company. Don't get me wrong. To me freedom of speech and other fundamental human rights are not matters of popularity contests, so even if nobody else supported the position, I would still be advocating it based on the principles.

I'm just going to quote one other international authority here on the basically American position that counterspeech is not only consistent with human rights and free speech principles, but is actually more effective in countering hatred and promoting equality and societal harmony. I'm just going to quote the European Commission Against Racism and Intolerance (ECRI). Very important, because this is the organization that has advocated the adoption of strict hate speech laws which now exist throughout Europe and also monitored the enforcement record of those laws. As a result of the enforcement experience, a couple of years ago ECRI issued a very critical report about how those laws are operating and advocated moving toward counterspeech, which it said—and I remember these exact three words—will be "much more effective" than the censorship laws in actually promoting the goals at stake.

You can tell from what I've said so far that my book really discusses two intersecting and overlapping points: One has to do with free speech principles; the other has to do with concerns of policy, pragmatism, and strategy. They really do overlap.

Because of the policy and pragmatic arguments, I would maintain that the same approach that we do follow in the United States as a matter of First Amendment free speech principles should also be voluntarily adopted even in contexts where the First Amendment is not the law, starting with other countries, because we are unique in having such a strong, not only explicit protection for freedom of speech in our Constitution, but also, at least going back to the mid-20th century, a very strong free speech jurisprudence strongly enforcing the constitutional protection. I urge that other countries should for concerns of really advancing the goals at stake also move in the direction that the United States has adopted. More to the point, I quote many experts in other countries who take that position.

Second, private sector companies—the lawyers here all know this, but most people are not aware of the fact that the United States Constitution, including the free speech guarantee, applies only to government officials. A private sector entity, including even a private university, is not bound by constitutional constraints. Nonetheless, I urge that for all of the policy and practical reasons that the United States law is the desirable approach and that it should also be adopted by private sector entities that have great power over communications, including online companies.

Let me start by briefly outlining the free speech principles. As Joanne rightly said, there are so many misunderstandings about this. Too often we hear binary statements, each opposite from the other but linked by being equally incorrect. We often hear even public officials, journalists, and lawyers—people who should know better—saying, "Hate speech is not free speech." That was said when Ann Coulter was denied a platform at Berkeley last spring. Howard Dean, who had been chair of the Democratic National Party, governor of Vermont, presidential candidate, said: "Well, Berkeley didn't violate her First Amendment rights because hate speech is not free speech," and many others have made a similar incorrect statement.

Conversely, we often hear statements that "hate speech is constitutionally protected," and that absolute statement is also not completely correct. As I appreciated more and more from doing the research for my book, American law really is nuanced and makes a great deal of common sense.

It is true that the Supreme Court never has labeled or defined a category of speech as "hate speech." Throughout the book I put the term in quotation marks. I'm not going to keep giving you air quotes, but just imagine those from now on. It is not a constitutional law term of art precisely because the Court never has defined and identified a category of speech based on its hateful, hated content, message, or ideas and said it's categorically excluded from the First Amendment.

It is different, for example, from obscenity, which is a category of sexual expression defined by content that the Court has said—most of us think incorrectly, but that's the subject of another talk—obscenity is a term of art for categorically excluded expression. Hate speech is not.

On the other hand, the Supreme Court has said that when you get beyond the content or message of the speech and instead look at its overall context, speech with a hateful message along with speech with any other message may, in certain contexts, be punished, specifically if in context under all the facts and circumstances that speech directly causes "certain specific imminent serious harm which cannot be prevented short of punishing the speech." So, law enforcement would not suffice, education and debate would not suffice.

That's a very strict exception, but it is satisfied by many important situations involving hateful speech. The Court has also created subcategories of speech that satisfy what I call this "emergency standard." For example, a true threat, which does instill a reasonable fear in a particular audience member, has to be specifically targeted, not the way we use the term "threatening" in a more loose sense, or an intentional incitement of imminent violence.

Let me give you one other example. We usually call it "hate crime" or "bias crime," and that is a constitutional law term of art unlike "hate speech." The Court has said that if something which is already a crime, such as an assault or vandalism, when the victim is singled out for a discriminatory reason, such as race, religion, or sexual orientation, society can deem that to be a more serious crime on the theory that it causes more harm to the victim and to society as a whole, so it can be subject to an enhanced punishment.

Let me give you one example of a recent case in which the United States Supreme Court unanimously refused to create and recognize a category of unprotected hate speech. It was less than a year ago, one of the Court's most recent free speech cases, and it was called Matal v. Tam.

Simon Tam, an Asian American rock musician, had created a band consisting of other Asian American rock musicians, and they gave their band a name which traditionally has been an ethnic slur. On some campuses I would have to give you a trigger warning at this point. They called their band The Slants.

Well, guess what? Simon and his fellow Asian American rock musicians were not choosing that name because they wanted to denigrate people of Asian origin. It was exactly the opposite. They were celebrating their ethnic heritage, asserting their pride, and seeking the empowering step of reclaiming and reappropriating that term.

But the bureaucrats in the U.S. Patent and Trade Office decided that it was "disparaging" on the basis of ethnicity, and they denied Simon the right to choose his name, to give his interpretation—by the way, it was a play on words. It was his "slant" on the term as well, and he chose it for that reason as well.

Fortunately, the United States Supreme Court, 9-0, struck down that law. I emphasize two points here: One, for all of the division that we see on the Court on so many civil liberties and constitutional law issues, this is a point where there is enormous consensus, and I think regardless of at what point you are on the ideological spectrum it behooves you to join with the Supreme Court in celebrating not only—and there's my second point about that case—in one fell swoop, what was being respected was not only his free speech rights but also his equality rights.

Very quickly because time is a-wasting and I want to have plenty of time for questions and discussion, on the pragmatic and policy arguments, many human rights activists around the world, as Joanne noted, have agreed that well-intentioned as hate speech laws are, they have proven to be at best ineffective and at worst counterproductive.

When you think about it logically, what are the consequences of these kinds of laws? They might drive the speech underground, in which case it becomes harder to acknowledge the ongoing problems of racism and other forms of discrimination and to take constructive action against it; they often drive hate-mongers to use sugarcoated language that is much more appealing, much more sympathetic; and, of course, throughout history to the present day, hate-mongers love to portray themselves as martyrs. They love to provoke their ideological opponents to try to censor them because that gets them attention and sympathy that they otherwise would not have.

If you look at the record of European countries, for example, you would have to say that these laws have really been ineffective in reducing problems of discrimination and even discriminatory violence. Across the continent there have been rising and distressing patterns of discrimination and violence. We have seen the rise of explicitly racist parties.

The situation in Germany is particularly poignant to me, as my dear friend Karen asked me to please recount—and I always should—that I am the daughter of a Holocaust survivor. I think it's important for people to know that I am a free speech champion not despite being poignantly personally aware of the horrors of genocide and the Holocaust, but precisely because of them. The history in Germany is not one that supports hate speech laws as an effective way to counter Nazism.

There were hate speech laws in Weimar Germany. Hitler's associates, including Julius Streicher, the publisher of Der Stürmer, the virulently anti-Semitic magazine, were repeatedly prosecuted. They loved the attention and the sympathy that it garnered for them. The problem in Germany was that there was no enforcement of laws against actual violence, so the Nazis did get away literally with murder in attacking their political opponents, Jews, and other minorities.

In Germany we have rising anti-Semitism despite some of the strictest laws in the world. Much of this has gotten a lot of publicity.

Let me mention in addition to incidents of anti-Semitic violence, which have driven Angela Merkel for the very first time in post-war Germany history—which has been very concerned about not replicating the problems of the Holocaust, understandably—that for the very first time in history, she has appointed a cabinet-level minister for anti-Semitism. That's how serious the problems have been.

In the last German national elections last fall, almost 13 percent of the vote went to an explicitly racist party, Alternative für Deutschland (AFD). On April 20, which was our calendar-year anniversary of Israeli independence, Bret Stephens wrote a column in The New York Times in which he talked about increasing anti-Semitism, not only in Germany and in France but in England and throughout Europe. He had this chilling line—again I remember the exact words. He said: "To be a Jew in Europe today is to be living on borrowed time."

I will have to tell you something in terms of intellectual and analytical rigor. A couple of weeks ago I was in Brussels debating the European Union commissioner who has been the major instigator of online censorship there. You can guess what her conclusion was from the fact that these really strict laws have not succeeded in suppressing hatred and hateful violence: "We need more laws and we need stricter laws." But fortunately, there are many in all of those countries who reach exactly the opposite conclusion.

We have to acknowledge the potential harms that are associated with hate speech. But I say "potential" because unlike other kinds of harmful conduct—we've all heard that old saying, "Sticks and stones may break my bones, but words will never hurt me," and we all know that our parents told us that precisely when words did hurt us, right? It wasn't a factual statement, it was an exhortation. We don't have to let the words hurt us. We can steel ourselves. We can have certain attitudes, because the hurt only comes through the intermediating process of the human mind.

On that, I want to just briefly cite two experts. One is Richard Ashby Wilson, who is a professor of both anthropology and law at the University of Connecticut. This is his recent book, came out last year, called Incitement on Trial: Prosecuting International Speech Crimes. I spoke at a panel on Richard's book, and tonight he's speaking at a panel on my book at the Open Society Foundations.

Richard is completely supportive of American free speech law on this point. He has a very narrow proposed definition for speech that would satisfy a really strict incitement standard in the international context.

The most important point of his book I think generally is that he says everybody invokes common sense and assumption when they say that hate speech causes harm. In the international context the harm that is usually just assumed or common sense to follow from hate speech is discriminatory violence, including mass atrocities and genocide; in the American context, the potential harm that most people have been most concerned with, especially on campuses lately, is psychic harm or mental or emotional trauma.

What is so interesting is that when you actually analyze the factual record, as Richard does with respect to potential incitement, it turns out that there isn't any demonstrable causal connection in the vast majority of cases. His conclusion is—based on really rigorous analysis and certain experiments that he designed, surveys that he designed—that hateful speech: (1) doesn't necessarily cause hateful attitudes, and (2) hateful attitudes do not necessarily translate into hateful conduct. This is where counterspeech—we can intervene at each of those points to stop the speech from having a negative impact either on attitudes or on conduct.

In terms of the psychic impact, one of the great experts that I quote several times in my book happens to grace us with her presence today, Pamela Paresky, who lives in Aspen but happens to be here. Pamela is also a great expert who is quoted in a forthcoming book about which I'll say no more than the title, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure, by Jonathan Haidt and Greg Lukianoff. Again, the common sense is belied by actual experience of mental health experts who tell us that we can learn how not to allow even the most hateful, hurtful, vile words affect us in a negative way. This is another example of counterspeech—education—to steel ourselves against that potential negative impact.

Even assuming that hateful speech does cause serious harm—I'll assume that for the sake of argument; I want you to know it's debatable—that would still not justify censoring it. This is really important because the analysis on the part of most proponents of hate speech laws in this country stops here: (1) They just assume it's a matter of common sense that the speech causes harm, and (2) therefore, it follows as the night does the day supposedly that censorship would be the appropriate solution. That is really where my book hammers home that censorship in fact is not a solution, and this is supported by experience not only in the United States before we adopted the current speech-protective standards, but also in other countries.

Not surprisingly, every single law is disproportionally enforced against any dissident, any government critic, and here even most ironically disproportionately against advocates of the rights of the very minority groups that are expected to be protected by the law. This has been the repeated complaint of international organizations, including Human Rights Watch and many critics, that I cite in my book.

You're going to have to read the book to get the many examples. They will chill you, let me tell you, because we have the worst of both worlds under these hate speech laws. On the one hand, they do not effectively promote their goals. On the other hand, they do suppress important expressions about public issues. So no matter what your political beliefs are, you would just be chilled by some of the examples.

I'm going to use some of my last minutes to just read you a sampling here of speech that has recently been punished under hate speech laws in Europe. I'm going to give you some examples about religion because I thought it was so significant in yesterday's Supreme Court decision that the Court says, "We have to support equality and neutrality under the law not only on the basis of who you are, but also on the basis of what you believe." You'll see that these laws will suppress both religious speech that is against the dominating ideology of whoever is in power and also suppress speech that is critical of religion if that goes against the dominant power elite.

In 2017, two British street preachers were convicted for preaching from the Bible, including statements that were deemed insulting to Lesbian, Gay, Bisexual, Transgender (LGBT) persons and Muslims.

In 2016, a Danish appellate court affirmed a lower court's conviction of a man who had posted Facebook comments charging that "Islam wants to abuse democracy in order to get rid of democracy."

In 2016, Laure Pora, who headed the Paris chapter of the LGBT rights organization AIDS Coalition to Unleash Power (ACT UP), was criminally convicted and fined $,3500 for applying the term "homophobe" to the president of an organization that opposes gay marriage.

In 2015, France's highest court upheld criminal convictions and fines totaling $15,000 for pro-Palestinian activists who went to supermarkets and handed out fliers saying, "Buying Israeli products means legitimizing crimes in Gaza."

I can give you so many more examples. Poland criminally charged singers who made critical statements about the Catholic Church because of child abuse.

One final example: In 2005 the French newspaper Le Monde was found guilty of inciting hatred against Jews because of a 2002 editorial that criticized certain Israeli policies.

I tried to give you a potpourri, so hopefully there is some speech there that you agree with and some that you disagree with, but I hope that you think none of it should be subject to criminal punishment.

My last word, I'm going to quote one of the epigraphs to my book because I really want to emphasize the positive in coming back to the ethical commitment of this fine organization, the Carnegie Council, the responsibility to resist hate speech through free speech. I personally believe that it is especially morally incumbent on those of us who object to censorship that I feel that I have a stronger moral and ethical responsibility to raise my voice against hatred. Of course, I would do it given my personal background and convictions anyway.

The three epigraphs to my book are three civil rights and human rights champions who stress that message, the first being Barack Obama, the second being Martin Luther King. The third, Aryeh Neier, the former chair of Open Society Foundations, who will be chairing my panel there tonight, was himself a Holocaust survivor. He and his immediate family escaped to this country, but his extended family was completely exterminated, and he was the executive director of the ACLU when we defended the free-speech rights of Nazis in Skokie to demonstrate, again not despite the fact of his personal history but precisely because of that.

I am going to end with an invocation that he made in his wonderful book about that case called Defending My Enemy: American Nazis, The Skokie Case, and the Risks of Freedom: "Hardly any of the voices that should have been raised in moral protest against Nazism were to be heard in Germany or the territories conquered by the Reich. Where political and religious leaders did speak out against the Nazis, notably in Denmark, most Jews were saved. Those Jews who died were victims of the silence of Europe's moral leadership as much as they were victims of the Nazis."

So, thank the Carnegie Council and all of you for not being silent.


QUESTION: Karen Gantz.

Could you give an example, Nadine, of where hate speech "causes direct harm"? For example, in Charlottesville, if the authorities know that an enormous number of people are brandishing guns, would that be an example where imminent harm is predicted and nothing can be done to oppose that?

NADINE STROSSEN: I think that's a really good example. First of all, that's hypothetical. That was not the situation in Charlottesville.

I was asked about that situation, and my own reaction is exactly what the analysis of the ACLU had been. The ACLU did represent, together with the Rutherford Institute and other free speech organizations, the free speech rights of the alt-right to demonstrate there. Subsequently, when it came to light that a number of them were brandishing weapons, the analysis was that that would have to be one of the facts and circumstances that you would take into account in deciding whether the speech satisfied the standard of a true threat.

My own view is—and quite frankly, I do have the courage of my convictions, but unlike Patrick Henry I don't say "Give me liberty or give me death." I think I have to be alive to exercise my liberty. Quite frankly, if I put myself in that position, I would be afraid to raise my voice to even express an opinion, let alone to criticize the opinion of somebody who is brandishing a weapon.

I asked the legal director of the ACLU, David Cole, why we would not even have a categorical position that brandishing weapons in public would automatically constitute a threat that would be chilling people's speech as well as their other liberties. He had a really good answer. He said it would have to be very detailed: "Suppose the weapons were unloaded, and they were part of a demonstration in favor of the right to bear arms." Maybe we would decide not to defend them, but we're not going to categorically say no. But a very important factor.

QUESTION: Thank you so much. I'm the ambassador of Lichtenstein to the United Nations, so I'm European, and my background is a bit different, but still I think I very largely agree with you.

Two questions: First, you are saying the remedy is really counterspeech, and I think that is a nice approach, but we are also living in a time of asymmetric information warfare. If someone has 15 million followers on Twitter, that person has a very different platform than somebody who may have a good argument against but does not have access to so many people. That is my first question: Does that change the argument a little bit?

The other is: You're talking about a very restrictive standard, imminent serious damage. That means, for example, genocide denial is not a criminal act, in your view, so you can say the Holocaust didn't take place. You can even say: "Well, that's not hate speech. I didn't say I hate Jews. I am just saying it didn't happen."

Where I'm from, that is a criminal act, and there is a lot of discussion about that. It has been abused and misused, and you probably know the court cases, so what is your view on that?

NADINE STROSSEN: I think you can guess. It's so good of you to come, and I'd love to get your card and discuss these issues further.

On the first question, I should say that I advocate other non-censorial measures in addition to counterspeech, so there has to be—let me just state this because we in this country may take it for granted, but I've met people in other countries who don't. We have to very strongly pass and then enforce laws that make it illegal, including in some cases criminally illegal, to engage in actual discriminatory conduct.

For example, I was recently on a panel with the New York human rights commissioner, and she was amazed that she met her counterparts from various European countries where there weren't even laws against discrimination in employment, housing, voting, education, and so forth. We must also enforce laws against—whether there is enhanced penalty or not—if there is an actual crime and there is a discriminatory motive, those are also very important tools.

In terms of counterspeech—and the book addresses this—we have a responsibility to facilitate it, not only by ourselves, but on the part of everybody in the community, in particular members of disparaged groups, by making sure that they have adequate technological resources and educational background. We also, not only because of hate speech but because of fake news, a lot of information and misinformation online, critical analysis and media literacy skills are essential from the earliest age. This is the answer to dealing with all kinds of problematic expression with which we're awash online.

One of the things that I found very encouraging as I did the research for the book—I have a lot of criticism in here of the online companies, but in their defense they have been putting a lot of money into researching what is effective counterspeech and how to improve the effectiveness of counterspeech. So they're not just going down the censorial road. One of the advantages of the online expression is that not only does it make counterspeech easier if we can motivate people to look for it, but it also makes it easier to analyze what is effective counterspeech.

Twitter, among others, and Facebook have been financing communication scholars and other experts to analyze actual examples of counterspeech online and what made it most effective. There are some very moving, very powerful examples which have not only weaned away people who are kind of open-minded, kids who are flirting with dangerous ideas, but even people who are convinced hate-mongers, leaders of hate organizations, have been weaned away from those positions. It takes a lot of patience. I'm not sure I would have the patience to do that.

Then you have these people themselves forming organizations such as Life After Hate. It takes a lot of investment in education and resources to spread the availability of communications.

On the second point, you won't be surprised that I oppose laws criminalizing any statement about history. I don't think, and I have no personal interest, it should be clear, in trivializing the Holocaust.

My husband, whose parents also separately escaped from Nazi Germany, his mother was—anyway, another story, but Holocaust survivors on both sides. We recently just arranged for a stolperstein for two of our family victims to be honored in Germany. So we certainly want to keep the memory alive. But as an educator as well as an advocate, I don't think that criminal law is the way to do it.

For example, just two weeks ago in [Germany] an 89-year-old female Holocaust denier was just put in prison. What good is that going to do? Is it going to persuade her that she's wrong after all these years? Is it going to dissuade any of the 40 percent of young people who according to a recent survey didn't know what Auschwitz is? Is putting her in prison going to do anything about that problem? [Editor's note: As reported by The Washington Post in April 2018, a study by Conference on Jewish Material Claims Against Germany conducted in the United States found that 41 percent of respondents overall and 66 percent of millennial respondents "could not come up with a correct response identifying {Auschwitz} as a concentration camp or extermination camp."]

My book quotes Noam Chomsky, who says, "It's a very odd"—I think it's a very understated criticism—"way to pay tribute to the memory of the victims by adopting one of the main creeds of their exterminators, namely censorship."

JOANNE MYERS: Maybe at this point you could talk about Rwanda, the finding—

NADINE STROSSEN: In my book I actually give the example of Rwanda as, assuming the facts there—but I think many of us were assuming the facts—that the broadcast company, which was a government broadcaster, RMTL, was actually convicted by the International Criminal Tribunal for Rwanda (ICTR) for having provided material assistance, if you will, to the perpetrators, so not only that there was intentional incitement of imminent violence that did happen—the massacre there—but also providing information that was essential for carrying out the attacks, such as: "Here is where your potential victims are hiding. Go get them."

One of the things that really surprised me about Richard Wilson's book is that he quoted a number of social scientists who after the fact did studies and have really thrown a lot of doubt on those assumptions about the actual impact of the radio broadcasts based on extensive interviews of people who did participate in the genocide.

Actually, you can look at correlations between where the attacks occurred and where the radio broadcasts did reach and did not reach, and guess what? There's not a correlation. When interviews were done of people who did commit horrible acts of violence, they said they were not affected by the broadcasts—they weren't listening—but that the main influence was personal contact and peer pressure including especially from neighbors and from family members.

There was a famous book that was done about Nazism as well. I can't remember the name of the book, but it studies a particular battalion of ordinary Germans who were engaged in horrific crimes against Jews, and the researcher just wondered how could they do it, and could they really be motivated sufficiently by anti-Semitic rhetoric? His conclusion was, no, that was not at all the decisive factor. It was again peer pressure, that these are social acts, and we are affected by those who are around us.

You create this bond. You don't want to let down the group, in this case the battalion, but what was so striking and heartening and inspiring was how many people still resisted that pressure. Even within the battalion people spanned the spectrum from enthusiastically joining in the brutal acts to doing it against their own personal instincts, but they didn't feel enough courage to stand up against the pressure; to people who refused to do it and some people who did initially agree but then stopped participating.

I'm convinced from the communications literature that it seems to be that we are not automatons and that we can resist even massive online pressure if we have the courage of our convictions.

QUESTION: My name is Stan Riveles.

Your focus is international I understand, but back in the United States there is a lot of concern about free speech codes on campuses, you mentioned trigger warnings—Ann Coulter, Niall Ferguson got into trouble recently. Some of these are public universities.

What do you think the responsibility is for free speech advocates to address some of these domestic issues?

NADINE STROSSEN: My book, I should emphasize, is completely oriented toward both, probably disproportionately toward the United States. It was just in this particular audience I wanted to emphasize the international ramifications.

I absolutely believe that the campus situation is particularly important in this country for all of the reasons that the Supreme Court has said, that academic freedom, freedom of thought, freedom of inquiry, freedom of debate and dissent is especially important in these institutions that are designed for education and in particular for preparing the next generation of citizens and leaders in this country. If people develop a hostility, or first of all if they're ignorant at best, second hostile at worst toward free speech values, our free speech rights are going to be in jeopardy.

I really agree with Zechariah Chafee, who was the first major free speech scholar in this country, a professor at Harvard Law School in the early 20th century, one of the founders of the ACLU, and he said: "In the long run people in this country will have just as much freedom of speech as they want." In other words, if we demand of those we elect that they respect free speech, they will, and if we allow them to censor, they will. Then they'll appoint judges who also don't support free speech.

I couldn't agree with you more that this is of vital concern, and I spend most of my time on the campus lecture circuit for that reason. I am happy to report that there has been a lot of pushback, including several new organizations on campus, some of which have organically sprung up from students themselves. There is a wonderful group called Bridge USA, which is getting an award from Heterodox Academy, another wonderful new institution that was formed a couple of years ago to stimulate heterodox thinking and debate and discussion on campus. I'm on the board of that as well.

FIRE, the Foundation for Individual Rights and Education, again another common cause, has been excellent. The ACLU brought the initial lawsuit against the first campus hate speech code that was adopted by the University of Michigan in the late 1980s, and we brought several others, and FIRE has taken over as specializing in the issue. Every single hate speech code that has been challenged in court has been struck down as either over broad or unduly vague. There is just no way to avoid those problems.

If I can tell you one little anecdote about this, when the ACLU challenged the University of Michigan's hate speech code—which was very typical; there aren't that many synonyms you can come up with; the term "hate" is itself an emotion inherently ambiguous and subjective; "disparaging," "demeaning," "victimizing," "stigmatizing"—the judge, Avern Cohn, asked the university's lawyer: "Well, you acknowledge that offensive speech is constitutionally protected"—yes, absolutely nobody would disagree with that major tenet of constitutional law—"so how do you distinguish," the judge asked the lawyer, "offensive speech"—and therefore protected—"from speech that is disparaging or degrading or demeaning and therefore not constitutionally protected?"

The lawyer's answer: "How do I distinguish that? Very carefully."

He had a great sense of humor, but it's no laughing matter. I do have to underscore that one of the authors of that code was Lee Bollinger. He was then the dean of the University of Michigan Law School and is now the president of Columbia University. All of these college codes had the input of the top free speech experts on their faculty, so it is just impossible to come up with language that does anything other than give unfettered subjective discretion to the enforcing authorities, and that is why we see the enforcement patterns that we do, which are not friendly to minority groups.

QUESTION: This was great. Thank you.

One of the big problems on campuses is the question of BDS (boycott, divestment, and sanction). That is an attempt to bring sanctions against Israel. It is one thing when you're talking about business. Part of that is university faculty members are included in that, and the move among university faculty members here who are voting for it are prepared to say that Israeli professors may not come to the United States unless they take an oath against the government. How do our university professors vote for something like that? It's outrageous.

NADINE STROSSEN: I take that as a rhetorical question, and I agree with you. By the way, I defend their right to vote that way, but I disagree with how they're doing it.

QUESTION: Ron Berenbeim.

What do you think about the exercise of market power with respect to hate speech. Let's take Roseanne Barr, for example. Undeniably hate speech—at least in my opinion—but there is a lot of collateral damage there, key grips, cameramen, supporting actors and actresses. How do you think a situation like that ought to be handled?

NADINE STROSSEN: These are excellent questions. There is actually a connection between these last two questions because what you're talking about is counterspeech, and that is exactly what I'm exhorting in preference to government coercion, but there are certain situations where those in the private sector who are exercising their power have so much power that it becomes coercive, and that's a little bit tricky.

Interestingly enough, for the talk I'm giving at lunch today I just reread John Stuart Mill's On Liberty. I don't know how many of you remember this, but his whole essay in support of freedom of speech and against coercion was not at all aimed at government coercion. It was aimed completely at societal pressure, pressure from civil society that he said as a practical matter can have more of a coercive and a suppressive impact than government coercion.

As a real coincidence, Suzanne Nossel, who is the head of PEN, an organization that does wonderful work on these issues, had an essay which was called "Sometimes More Speech Isn't the Solution to Offensive Speech," and she raises the question: When does counterspeech risk crossing into censorship?

The particular example that she raised and that other people have is this lawyer in New York, Aaron Schlossberg, who was caught on video threatening to call immigration enforcement on deli employees speaking Spanish, and there was just a horrendous outpouring of hate speech against him and his law firm, and apparently they are going to be subject to a lot of economic repercussions.

I just want to read you her conclusion, because I think it's something that we have to keep in mind: "With the power of counterspeech comes a responsibility to think hard about what voices and viewpoints to stifle. It is tempting to extinguish anything that affronts us, but we don't want to legitimize the idea that mobs can and should exert an authority we have always denied to our elected government, the power to decide what ideas live and die in the public sphere." Then she says the purpose of counterspeech should be "persuasion, not to exact retribution or to humiliate."

As a civil libertarian, I would certainly oppose any government effort to stop—and I know you're not advocating this either—companies from choosing to fire somebody for disliking the speech, and I would not want to outlaw a professor voting in a way that I consider to be an irresponsible vote and one inconsistent with free speech and academic freedom. Mind you, I want individuals and companies to still have that power to make those choices, but I think we need to be very mindful of how we as consumers and citizens raise our voices to urge them how they should or should not choose to use that power, and I say the same thing about online companies as well.

JOANNE MYERS: I know there are many questions, and I know you'll be here selling your book, so I just really wanted to thank you for a very stimulating morning for issues that are very important to us. Thank you.

NADINE STROSSEN: Thank you all so much.

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