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Hate Speech and Stolen Valor

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July 2, 2012, 9:15 pm

Hate Speech and Stolen Valor

I was wondering whether to devote a third column to the hate-speech regulations Jeremy Waldron favors in his new book ("The Harm in Hate Speech") when the Supreme Court decided the matter for me last Thursday by striking down the Stolen Valor Act. The act reads (in part), "Whoever falsely represents himself or himself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States shall be fined under this title, imprisoned not more than six months, or both." An enhanced penalty is provided for falsely representing oneself as a Medal of Honor winner, which is what Xavier Alvarez did when he introduced himself as a new member of the Three Valleys Municipal Water District Board in Claremont, Calif.

Convicted under the statute, Alvarez appealed, arguing that his First Amendment rights were violated when he was prosecuted for knowingly making a false statement. The plurality opinion (written by Justice Anthony Kennedy) agrees, declaring that the category of exceptions to the First Amendment's general protection of speech does not include false statements. The supporting citation is to New York Times v. Sullivan (1964), in which it is said that because false statements are inevitable in public debate, they must be protected "if there is to be an open and vigorous expression of views."

Kennedy also points out that in those instances (perjury, fraud, defamation) in which false statements have been criminalized, the statements are part and parcel of a "legally cognizable harm." In the case of stolen valor, however, there is, Kennedy avers, no such harm; the statute "targets falsity and nothing more" and therefore could be extended to false statements "made to any person, at any time, in any context," including "personal whispered conversations within a home."

In response, Justice Samuel Alito, writing for the dissent, insists that the false statement in question - the claim to be a Medal of Honor recipient - does "inflict real harm" and serves "no legitimate interest." Furthermore, despite what the plurality contends, the act is specific in its potential application and "does not reach dramatic performances, satire, parody, hyperbole, or the like." As for the harm, it is, according to Alito, calculable and irreversible: "[T]he proliferation of false claims about military awards blurs the signal given out by the actual awards and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps." The damage, Alito adds, is to "the very integrity of the military awards system."

Alito knows that the word "system" pinpoints the difference between his viewpoint and the plurality's. A systemic harm is one that is inflicted not on a targeted individual, but on the social context in which all individuals necessarily operate. It is, Alito says, a "societal harm" measured not by the documented "specific harm" Kennedy requires, but by the damage done to the fabric of a culture. Nor is it a harm that can be remedied by the revelation and dissemination of the truth, "by what the plurality calls 'counterspeech.'" Counterspeech, Alito explains, produces a "steady stream of stories in the media about imposters," that would "only exacerbate the harm the Stolen Valor Act is meant to prevent."

Even from these brief excerpts, it should be clear that the two sides live in different conceptual universes. In one universe the individual reigns supreme and the chief value is the right to express one's views so long as they do not constitute fraud, perjury, libel, direct incitement to violence or treason. ("Freedom of speech flows not from the beneficence of the state but from the inalienable rights of the person.") In the other, views that contribute to the deterioration and dissolution of something society considers valuable and essential - like respect for the acts men and women perform in moments of extraordinary heroism in the service of their country - are subject to regulation and even criminalization.

The conflict is very old and irresolvable, and it periodically receives a dramatic re-articulation as it did in 1989 when the court decided in Texas v. Johnson that burning the American flag is an expressive act that strengthens rather than weakens the values for which the flag stands. In a dissent that parallels Alito's in the present case, William Rehnquist, then the chief justice, lambasted an "uncritical extension of constitutional protection" that has the effect of frustrating "the very purpose for which organized governments are instituted." Justice John Paul Stevens, writing in a separate dissent, noted the argument that allowing flag burning will increase the amount of expression in the society, but he countered with his own example: "The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might enlarge the market for free expression, but at a cost I would not pay . Similarly sanctioning the public desecration of the flag will tarnish its value."

Stevens's implicit concern for appearances, for the way a society looks (flags being burned vs. flags being handled with respect; monuments being defaced vs. monuments kept free of splenetic litter) is made explicit in Waldron's book. Under the rubric of "Political Aesthetics," Waldron argues that the accepted vocabulary of a culture can become part of its established environment." He says that a society which permits the publication of calumnies defaming groups, especially vulnerable minority groups, will "look quite different from a society that does not," and he wonders "whether the law should be indifferent" to the impact of such publications "on what our society looks like and what it is for members of certain groups to have to try and make a life in a society that looks like that."

Waldron's idea is that "the look of a society is one of the primary ways of conveying assurances to its members of how they are likely to be treated by the hundreds and thousands of strangers they encounter." If such assurances are absent or eroded by a hate-filled public landscape, some citizens can no longer walk the streets in the confidence that they are at home. This is the definition of dignity called for by many posters; it is a dignity that depends not on the absence of personal offense - a goal and standard Waldron rejects - but on the absence of freely circulating signs suggesting that members of some groups have the special burden of demonstrating every day that they belong, in the (visible) face of the presumption that they do not.

Waldron is aware, as Rehnquist and Stevens were before him and as Alito is after him, that an emphasis on appearances, on words and images, runs counter to the classic liberal distinction between speech and action and the accompanying conviction that until words lead directly to beatings and blatant exclusions, "there is nothing to worry about" and therefore regulation is an overreaction. Waldron notes the hope (implied in commonplace bromides like "the remedy for bad speech is more speech," and "sunshine is the best disinfectant") that in time "hate speech [just] dies out, just withers away." But, he observes, "it is not at all clear how we are supposed to get there."

The two answers most often given by readers unpersuaded by Waldron are that the marketplace of ideas will sort things out and that education will do what regulation cannot. But if the marketplace is necessary because no one of us is sufficiently wise and impartial to serve as judge and arbiter, it will be up to the same fallible, biased beings to determine when the marketplace has completed its sorting-out work, and we will be right back where we started.

This, supposedly, is where education comes in. "What is needed," says frederickjoel is an "informed and educated public." "Evil beliefs," declares amogin should not be prohibited but exposed to "rational rebuttal" and "the light of reason." But if the elixir of reason is to do the job, there must first be agreement on what is reasonable, what is rational and what is evil. And obviously there is none. Reason, rather than being an impersonal standard, is a contested category. (That's why we will have arguments forever.) The call for education as a means of purifying public discourse finally comes down to each party identifying education, as opposed to lies and indoctrination, with its own views. The appeal to education and rationality, like the appeal to the marketplace (and for the same reasons), is hopeless.

Maybe so, some posters will reply, but even if the outcome of the marketplace may not be benign (Justice Oliver Wendell Holmes acknowledged in Gitlow v. New York that its free operation, which he urged, could lead to the triumph of totalitarian ideas), and even if the direction education takes depends on who holds the reigns of instruction, we would do better to put our faith in the marketplace and in education rather than hand over the monitoring of speech and expression to an inevitably partisan government.

Those who take this position (and there are many) ask, "who, after all, is competent to judge what is hateful or harmful and what is not?" They assert that because no answer to that question will be generally acceptable - everyone will have his or her own candidate - judgment should be left to the workings of time. So it seems to come down in the end to a choice between two imperfect mechanisms - a free market in which bad speech may crowd out the good (the fear many feel in the wake of Citizens United), and a political market that could lead to ever-changing regulations on speech depending on which party happened to be in power.

Do you want to trust the tasks of separating the wheat from the chaff to the turns of a marketplace that has no mind or governing purpose or to a political process in which ideological purposes vie with one another in an endless contest? Do you want to permit the proliferation of fake Medal of Honor winners in the confidence that the real thing will be recognized by cleareyed observers, or do you want to take steps to ensure that true honor is not besmirched or crowded out by counterfeit coin? Do you want to allow expressions denigrating vulnerable groups to flourish in the confidence that members of those groups will be able to survive and prosper despite them, or do you want to take legal notice of forms of speech that might be destructive of the very toleration that protects them? Is a society that does not regulate hateful and false speech demonstrating its strength or courting its own demise? These are real questions, and it is the merit both of Waldron's book and Alito's dissent that the usual facile and self-congratulating answers to them are given a run for their money.

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