by DEEKSHA UDUPA
Nadine Strossen is a leading expert on constitutional law and civil liberties. She is the author of HATE: Why We Should Resist It with Free Speech, Not Censorship and Free Speech: What Everyone Needs to Know. She was previously the President of the American Civil Liberties Union (ACLU) and has testified before Congress on multiple occasions. She is a Senior Fellow with the Foundation for Individual Rights and Education (FIRE) and was named one of America’s “100 Most Influential Lawyers” by the National Law Journal.
In this interview, Strossen shares her insight on the power of “more speech” and “counter speech” as potential alternatives to effectively countering hate speech while highlighting the limitations and inefficacy of legal approaches.
This conversation has been edited for length and clarity.
Deeksha Udupa: In your work, you examine and unpack the “hate speech vs. free speech” framework largely in the U.S. context. How do you think this framework translates to other parts of the world, where hate speech rapidly leads to on-the-ground violence against minorities?
Nadine Strossen: The framework that the U.S. Supreme Court has crafted under the First Amendment of the Constitution has universal applicability because it is a framework that establishes general standards and principles. With that being said, the framework is extremely— and indeed completely— fact-specific and content-sensitive. I say this not as an imperialist American who thinks we know better than the rest of the world. I say this as someone who has studied various legal systems and talked to human rights activists around the world, and these activists also oppose censorship beyond the power that would exist under the U.S. First Amendment. They oppose this not because it is inconsistent with the laws of their own countries but because they believe that further censorship is ineffective in actually countering and changing hateful attitudes.
The basic standard under the U.S. First Amendment is also very strongly echoed in the International Free Speech law under the UN treaties, which various international free speech experts have studied and written about. There are two basic principles: first, speech may never be solely suppressed because one disapproves or even loathes the idea, content, and message behind the speech. This holds true even if the message is despicable or hateful. The answer is not government censorship and suppression. The second basic principle goes beyond the content of the message: if the speech directly causes or imminently threatens specific communities, then it can and should be suppressed.
I can think of many situations in less developed societies with more volatile social situations and less effective law enforcement where messages may satisfy the emergency standard in that context yet may not in the U.S. context. With that being said, the U.S. is a big place, and there are instances in the U.S. where hateful speech can and should be punished, like the 2017 white supremacist Unite the Right rally in Charlottesville, Virginia. These pro-racist, white supremacists came together and were chanting statements like “you will not replace us. Jews will not replace us.” These hateful statements alone could not be punished. Yet, considering these statements in the context of how they were marching towards a group of counter demonstrators—with lit tiki torches that they brought very close to [their] faces — that posed an immediate threat to the counter protesters which should’ve been punished.
To summarize, when there is a direct causal connection between speech and imminent violence such that other measures such as law enforcement, education or information are not enough to prevent violence, that speech should be punished. I say this with the recognition that this standard will be satisfied more often in many other countries than it would in the United States.
DU: Why do you think ‘hate speech’ laws have predominantly done more harm than good?
NS: My goal is to understand how we can resist hate. If I were convinced that more censorship effectively resisted hate, I would be in favor of it. One of my major international sources is called The Future of Free Speech, which is based at Vanderbilt University and founded by Jacob Mchangama. They have a very global perspective on free speech and have consistently shown that, at best, hate speech laws are ineffective in changing people’s perspectives and reducing discriminatory violence. At worst, they are counterproductive. The goal is to change people’s minds and perspectives: to enlighten them and broaden their understanding of other people. It is widely accepted that criminal law and a more punitive approach is ineffective in the U.S.
We need to move towards a restorative justice approach, where we root our work on how to constructively integrate people into our society. As I’ve said earlier, if the words are punishable under the First Amendment, then punishment is appropriate. We must also bear in mind, however, that it may not be the most effective approach to sentence someone under a hate speech or hate crime law and send them to prisons, where they are likely to have their hate views further reinforced and deepened. I have extensively read about people who were formerly members or even leaders of hateful organizations. They’ve been able to redeem themselves with the help of others— not others who are seeking to punish or shame them, but others who are reaching out with compassion and empathy for them as people.
Counterspeech, outreach, and empathy should not be reactive but proactive. It is too little too late if we wait until someone has actually committed an act of violence. That’s why I love the work that CSOH and other organizations are doing to take advantage of the powerful tool that is social media to do a lot of good. We are all aware of the great deal of harm that these platforms can do, but I also believe that they can do a lot of good. I am heartened by studies that show the positive effects of using tools like AI to proactively debunk disinformation, hate speech, and extreme content.
DU: If laws are not the solution, what alternative mechanisms do you propose for holding perpetrators of hate speech accountable, especially when it causes real-world harm?