The Harm in Hate Speech Book Author

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Chapter Title: The Appearance of Hate

Book Title: The Harm in Hate Speech Book Author(s): Jeremy Waldron Published by: Harvard University Press

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The Harm in Hate Speech

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4 The Appearance of Hate

It is now time to turn attention to the social harm that hate speech does and to the substantive purpose of the legislation that aims to suppress it. In keeping with my emphasis on group libel, the approach I take will focus on the visual aspect of a society contaminated by posters or publications that deprecate the dig- nity and basic citizenship of a certain class of people in society. I want to contrast the ugly visual reality of a society defaced by rac- ist or homophobic or Islamophobic slogans with what we would hope to see in a society that was open to the lives, opportunities, and expectations of members of every group. So let us begin with that contrast.

What Does a Well-Ordered Society Look Like?

I don’t want this to be read as a technical question, though many philosophers will recognize “well-ordered society” as a term of art from John Rawls’s political philosophy1—particularly in his book Political Liberalism. Rawls calls it “a highly idealized” ab- straction.2 Briefly: he wanted to consider the possibility of a soci-

66 the harm in hate speech

ety whose basic structure was regulated (and known to be regu- lated) by certain principles of justice and inhabited by people who took the idea of justice seriously; and he wanted to ask cer- tain questions about such an imagined possibility—for example, whether it could exist as a stable entity under conditions of reli- gious and philosophical diversity (PL, 35ff.). He used the term “well-ordered society” to refer to this entity that he was imag- ining. I am not going to go into any of the technical detail of Rawls’s theory. But I do want to use an element of Rawls’s con- ception to cast some light on the non-abstract and non-technical problem that I addressed in Chapter 3—the problem of what to do about hate speech, when it takes the form of group defama- tion—that is, the publishing of calumnies expressing hatred and contempt for some racial, ethnic, or religious group.

A society which permits such publications may look quite dif- ferent from a society that does not. Its hoardings and its lamp- posts may be festooned with depictions of members of racial mi- norities characterizing them as bestial or subhuman. There may be posters proclaiming that members of these minorities are criminals, perverts, or terrorists, or leaflets saying that followers of a certain religion are threats to decent people and that they should be deported or made to disappear. There may be banners and swastikas celebrating or excusing the genocidal campaigns of the past. There may be signs indicating that the members of the minority in question are not welcome in certain neighborhoods or in polite society generally, and flaming symbols intended to intimidate them if they remain. That is what a society may look like when group defamation is permitted. And my question is: Is that what a well-ordered society would look like?

The Appearance of Hate 67

I ask because it is assumed by many liberal constitutionalists, particularly in the United States, that a free society—and a well- ordered society is certainly supposed to be a free society—will not permit laws or ordinances prohibiting stuff like this, on the ground that any such prohibition is precluded by our commit- ment to something like the First Amendment principle of free speech. The constitutionalists may acknowledge that the social environment resulting from their toleration of hate speech looks unpleasant; they may say that they don’t like the look of these billboards, placards, blogs, or flaming crosses any more than we do. But, they say, the society that permits them and that presents this ugly appearance may still count as well-ordered, precisely be- cause it is a society in which racists are allowed to speak their mind like everyone else. Some go further and are inclined to cel- ebrate the diversity and unruliness of the various messages and speeches milling around visibly in the marketplace of ideas. They will mention that the objectionable placards and leaflets are likely to be opposed by hundreds of other published tracts and banners celebrating equality and affirming the equal dignity of all mem- bers of society. Even if this is not a matter of ideal balance, still they love the richness and untidiness of the marketplace of ideas: let a thousand flowers bloom, they say, even the poisonous ones. For of course some of the ideas are foul and distasteful. But if you blur your eyes a bit, what you see is a glorious splash of moving and variegated color—ideas interacting openly and unpredictably with one another in full public view. That, they will say, is surely a feature of a well-ordered society—even if the men, women, and children who are the targets of these foul and distasteful mes- sages of hate have difficulty in maintaining this lofty perspective.

68 the harm in hate speech

Of course, if the racist appearances correspond to a racist real- ity, then things are different. If the signs saying “Christians Only”

—or, in the more discrete form that used to be seen in Miami, “Churches Nearby”—are accompanied by discriminatory prac- tice against Jews, then there is something to worry about. Or if Muslims are actually beaten up in the street, if minority members are not protected against the discrimination advocated in racist posters, or if those in power treat people in the unequal and de- grading ways that the racist leaflets call for—that would show that the society was not well-ordered. But if it’s just signage, they say, there is nothing to worry about. And even if we act against the discrimination, the beatings, and the inequality, still—they will add—we should leave the signage in place.

That’s the position I want to test in this chapter, by focusing on this issue of appearances. The question I have asked—what does a well-ordered society look like?—is not a coy way of asking what makes a society well-ordered, or what a well-ordered soci- ety is like. I am interested in how things literally look; I’m inter- ested in the visible environment. How important is the look of things in a well-ordered society? Is it unimportant, compared to how things actually are? Or is it an important part of how things actually are? And if it is an important part of how things are, what in particular should we be looking for? The colorful, unruly diversity of a free market of ideas? Or the absence of visible fea- tures that are at odds with the fundamental commitment to jus- tice with which a well-ordered society is supposed to be imbued? If it is the latter, then can we present that as a way of understand- ing restrictions on hate speech and group defamation—under- standing such restrictions as being among the ways in which

The Appearance of Hate 69

real-world societies try to make themselves visibly more well- ordered (better-ordered) than they would otherwise be?

I am not saying that those who enact hate speech legislation are familiar with Rawlsian ideas, but I am interested in whether hate speech restrictions amount in effect to an embrace of Rawls’s idea of a well-ordered society, particularly in regard to one ele- ment of that conception. The element that interests me is this: Rawls stipulates that in a well-ordered society “everyone accepts, and knows that everyone else accepts, the very same principles of justice” (PL, 35). Now, this is an attractive idea, quite apart from its role in Rawls’s argument. We like the idea of a society bear- ing its values on its sleeve, making clear to all comers the funda- mental principles of liberty, equality, and dignity that it embraces. That’s what I want to concentrate on: the assurance of a general commitment to the fundamentals of justice and dignity that a well-ordered society is supposed to furnish to its citizens as part of “the public culture of a democratic society.”3 I want to take the measure of this assurance and, to the extent that it is important, consider how comfortable we should be with public and semi- permanent manifestations of racial and ethnic hatred as visible aspects of the civic environment.

Rawls on Free Speech

I am not asking this Rawlsian question in order to get at John Rawls’s own views in the free speech / hate speech debate. What Rawls says about free speech is set out mainly in an essay entitled “The Basic Liberties and Their Priority” (the final chapter of Political Liberalism), but it is not particularly interesting for our

70 the harm in hate speech

purposes. It does not address the specific issue of hate speech or group libel. And it does not follow up on the implications of his own characterization of a well-ordered society in the way that I want to. Also it is a bit confusing because, unlike almost every- thing else in Political Liberalism, “The Basic Liberties and Their Priority” is focused on real-world constitutions, with all their flaws and messiness, rather than on the idea of a well-ordered society as a stipulated abstraction. Rawls’s method for developing a list of basic liberties is to “survey the constitutions of demo- cratic states and put together a list of liberties normally protected, and . . . examine the role of these liberties in those constitutions which have worked well” (PL, 292–293). And in fact he draws mainly upon the American experience, though he has acknowl- edged elsewhere that the United States certainly cannot be re- garded as a well-ordered society, as things stand.4

There is some speculation in the Rawls literature about what his view on hate speech might have been, or what implications his other more abstract views might have for this issue. But that discussion is mostly inconclusive.5 The closest Rawls gets to the issues we are addressing in this book is in a discussion of sedi- tious libel, where he insists—in line with American free-speech orthodoxy—that a well-ordered society will be one in which any- thing and everything may be published, even things which tend to question the basic principles of a given society. Subversive ad- vocacy, he says, must be permitted. But I am not sure whether Rawls thinks this should extend even to advocacy against the fundamentals of justice—for example, to attempts to advocate publicly for the exclusion or subordination of a given group, or their disenfranchisement, segregation, enslavement, concentra-

The Appearance of Hate 71

tion, deportation, or whatever. He does not discuss this; he does not consider the status of speech or publication that, in its con- tent and tone, runs counter to the assurances that citizens are supposed to have of one another’s commitment to equality. But I suspect Rawls would not have dissented from First Amendment orthodoxy on this regard; certainly that is what his admiration of the work of Harry Kalven intimates.6

So when I ask what a well-ordered society should look like, I am using a Rawlsian idea and running with it in a direction that may be quite different from that in which Rawls would have run.

Political Aesthetics

What should a well-ordered society look like? We might ask with equal sense: What should a well-ordered society sound like? On the one hand, we might bring to mind the flat, steady drone of an interminable but well-ordered exercise of what Rawls calls public reason—respectful and mutually comprehensible speech, on matters of common concern, in the vocabulary common to all (analytic philosophers). On the other hand, we might contrast that with darker images of the sounds protected under expansive doctrines of free expression: the marching feet and the chants of neo-Nazis in Skokie, a Grand Wizard’s speech at a Ku Klux Klan rally, or the incessant anti-Tutsi radio broadcasts—“You are cock- roaches! We will kill you!”—of Radio Télévision Libre des Mille Collines (RTLM) in Rwanda in 1994, broadcasts that my NYU colleague Ted Meron, American representative on the Interna- tional Criminal Tribunal for Rwanda, sought to privilege as free speech in his dissenting judgment in the Nahimana case.7

72 the harm in hate speech

I said in Chapter 3 that an emphasis on speech is an empha- sis on the ephemeral. There I had in mind the occasional angry and politically incorrect use of one or another racial epithet, and I contrasted that—using the figure of slander versus libel—with the relatively enduring expression of visible signage or the pub- lished word. But it is true, on the other hand, that the accepted vocabulary of a culture can become part of its established envi- ronment. And certainly the broadcast word can be as much a matter of enduring concern, especially when it insistently and re- peatedly demonizes a minority as cockroaches and vermin, day after day.

So there is the visible and the audible. We might round out the picture with the emphasis by Richard Delgado and Jean Stefan- cic on tangible aspects of a society’s self-presentation. Their book Understanding Words that Wound has a chapter entitled “When Hate Goes Tangible: Logos, Mascots, Confederate Flags, and Monuments.” And the authors say this:

[S]tatues, monuments, and the like . . . perhaps because they are intended to be seen by a large audience, . . . contribute to a climate of opinion that is injurious to members of the group singled out. [T]angible symbols have a quality that

words—at least of the spoken variety—do not: They are en- during. Words disappear as soon as they are spoken. They may resonate in the mind of the victim, causing him or her to recall them over and over again. But a flag [or a] monu- ment is always there to remind members of the group it

spotlights of its unsolicited message.8

The Appearance of Hate 73

Delgado and Stefancic do not advance the discussion much be- yond this in their short book; but I am trying to proceed in the spirit of the concerns they raise. The tangible, or, as I would put it, the visible and semipermanent audible aspects of racist and sec- tarian display—these are the manifestations of hate speech and racist attitude that I want to consider in relation to Rawls’s idea.

Another body of work that addresses the same topic nega- tively—What does a disordered society look like?—is the work of Catharine MacKinnon on pornography. MacKinnon is inter- ested in the look, the sound, and the feel of a society saturated with pornography. For some, what it looks like is what it feels like: for men, she says, “pornography is masturbation material,”9 only not just in a mental fantasy, but in the public environment, everywhere you look. And for women? There is public portrayal of them (or women like them, or women they are supposed to be like) everywhere: open, vulnerable, visible, violated. What it sounds like is a silenced scream. And for people generally,

As society becomes saturated with pornography, what makes for sexual arousal, and the nature of sex itself , change.

What was words and pictures becomes, through masturba- tion, sex itself. As the industry expands, this becomes more and more the generic experience of sex, the woman in por- nography becoming more and more the lived archetype for women’s sexuality in men’s, hence women’s, experience. In other words, as the human becomes thing and the mu- tual becomes one-sided and the given becomes stolen and sold, objectification comes to define femininity, and one-

74 the harm in hate speech

sidedness comes to define mutuality, and force comes to de- fine consent as pictures and words become forms of posses- sion and use through which women are actually possessed and used.10

Mine is not a book about pornography and the two issues are mostly independent of each other, but the shape of the concerns expressed here about hate speech is similar to the shape of the concerns (the anger, the outrage) that MacKinnon expresses in the case of pornography. Pornography is not just an image beamed by a sort of pimp-machine directly into the mind of a masturbator. It is world-defining imagery, imagery whose highly visible, more or less permanent, and apparently ineradicable pres- ence makes a massive difference to the environment in which women have to lead their lives. And similarly, racist or religious defamation is not just an idea contributed to a debate. In its published, posted, or pasted-up form, hate speech can become a world-defining activity, and those who promulgate it know very well—this is part of their intention—that the visible world they create is a much harder world for the targets of their hatred to live in.11

A general consideration of what a well-ordered society looks like, sounds like, smells like, and feels like might be an exercise in political aesthetics—the sort of thing we find in Edmund Burke’s observation that “[t]o make us love our country, our country ought to be lovely,” and in his talk about “the pleasing illusions, which [make] power gentle and obedience liberal, . . . the super- added ideas, furnished from the wardrobe of a moral imagina- tion, which the heart owns, and the understanding ratifies, as

The Appearance of Hate 75

necessary to cover the defects of our naked, shivering nature, and

. . . raise it to dignity in our own estimation.”12 Political aesthetics invites us to think about such things as monuments, cenotaphs, public statues, public architecture. Or ceremonies (coronations, inaugurations, armistice day, etc.) and the settings and chore- ography for public or political events. Or costumes, like wigs, gowns, and uniforms in the administration of justice. We can think about the visible display of power, including the presence and bearing and uniforms of police and security forces, about flags and banners, and civil and military parades. Above all, we can think about publicly visible signage as subsumed under this heading of political aesthetics, from official posters and warnings to advertising hoardings to posters pasted up by citizens. I think that, in political philosophy, we need to pay more attention to all such issues than we do at present.13

Notice that these examples—monuments, ceremonies, uni- forms, etc.—are mostly a matter of official or publicly sponsored appearances. But in any discussion of hate speech, it is speech and publication by private persons, not by the state, that we are concerned about. Sometimes, of course, there is a messy interface between public and private, which shows up (for example) in the United States in the First Amendment jurisprudence of church- and-state: I mean, for example, legal issues about the permitted presence of religious symbols—crosses, crèches, menorahs, depic- tions of the Ten Commandments—in town squares or in court- houses, or at any rate on public property. Also, we know that it is possible for a society to look religious, without in any official or governmental sense being religious.14 There may be temples, stee- ples, churches, mosques, and synagogues as far as the eye can see,

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and many of us think this can be so without any message being conveyed that the society as a whole is committed to any religion. All this may be compatible with a society being well-ordered in the sense of religiously neutral. Sometimes we have to be able to separate, in our view of a well-ordered society, the look of civil society from officially sponsored appearances.

Sometimes, indeed, we have to separate the questions of what the state and civil society, respectively, look like from a third question about how individuals present themselves. This is at the heart of the debate, in countries like France, over Muslim women appearing in public with headscarves or veiled or with the full covering of the burqa.15 And it is a version of the question we are asking: What should a well-ordered society look like—for ex- ample, in the appearance that people present to one another? I am not a supporter of the proposal to ban the burqa; I think peo- ple should be allowed to follow the rules prescribed by their reli- gion for modest dress; women should not be forced to uncover their heads and wear what they consider immodest garments, just so the world can see that we are not a society of religious conser- vatives.16 But it is a complicated issue: it is partly about the pre- sentation in public of our division between the public realm and the private realm. We are accustomed to such division being vis- ible in the form of the doors and walls of private homes. But the burqa offers a slightly different view: it might be compared to a sort of portable private realm carted around in public, like an Ed- wardian bathing machine. And perhaps it is this aspect that op- ponents object to—the visible presentation of a doctrine that women may not really appear in public at all, and that when they do have to go out into what the rest of us regard as public space,

The Appearance of Hate 77

they must take the blocking and obscuring aspect of the private realm with them.

At any rate, the arguments that are used to support a burqa ban are not a million miles from the arguments that I am pursu- ing in this book. What individuals do, how they present them- selves, can add up to an impression that matters from the point of view of the dignity and security of others. The burqa may be a bad example. But think about the appearance of masked men in white sheets and pointy hats in Georgia or Mississippi, and the effect that has on the lives and the security of members of the African American community in that state. The Georgia Crimi- nal Code makes it an offense to wear in public “a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer,” and several other American states do as well.17 Free-speech advocates some- times criticize such laws as attacks on free expression.18 The ex- pressive aspect of wearing Klan hoods and robes is undeniable. But as with the more articulate hate speech that I am concerned with, the question is whether the law should be indifferent to its impact on what our society looks like and what it is for the mem- bers of certain groups to have to try and make a life in a society that looks like that.

Hatred and Law in a Well-Ordered Society.

Will hate speech be tolerated by law in a well-ordered society? We have already considered one response: yes, it will be tolerated as part of the energizing diversity of a free market of ideas. An- other response goes as follows: a society cannot be well-ordered if

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people are advocating racial or religious hatred. The idea of a well-ordered society is the idea of a society being fully and effec- tively governed by a conception of justice. In technical terms, it is full-compliance theory rather than partial-compliance theory.19 On this account, discussion of a society with sufficient rancor and division to generate hate speech cannot be discussion of a well- ordered society (in John Rawls’s sense), since both the hatred this speech expresses and the hatred it is calculated to drum up are incompatible with the attitudes whose prevalence among the citizenry—indeed, whose universal adoption—is supposedly de- finitive of a well-ordered society. We don’t call a society “well- ordered” unless these attitudes have died out and been replaced by sentiments of justice.

So compare what Rawls says about illiberal religions. Intol- erant religions—Rawls says—“will cease to exist in the well- ordered society of political liberalism” (PL, 197). Religions that demand the suppression of other religions, that insist upon con- stitutional establishment, or that demand the adoption of a cer- tain comprehensive conception of the good by the whole soci- ety—a society cannot be well-ordered unless such religions have, so to speak, died out. Accordingly, the question of what to do about such religions in a well-ordered society will not arise. Sim- ilarly, a society cannot become well-ordered unless the bigots and racists give up their mission and accept the basic principles of justice and equal respect that were formerly anathema to them. And so the question of what to do about hate speech and group defamation in a well-ordered society does not arise. A well- ordered society will definitely not look racist, on this account. But, it may be said, this will not be because there are laws against

The Appearance of Hate 79

that sort of thing. It will be because the citizens—being citizens of a well-ordered society—have no wish or motivation to express themselves in these terms.

Taking this response one step further, our well-ordered re- spondent may also say: even if it is true that Rawls’s ideal society would not be festooned with racial signage, Islamophobic leaf- lets, and ethnically prejudiced billboards, still nothing of interest follows from this for our debate about hate speech laws or group- defamation laws. A well-ordered society would not need such laws, because there would be no impulse to do what they forbid. Maybe the lesson for us, in our much-less-than-well-ordered so- ciety, is that we must hope that hate speech dies out, just withers away, not because of coercive laws limiting free speech, but be- cause of changes of heart brought about perhaps by public edu- cation and (not least) by effective answers to hate speech in the free marketplace of ideas.

It is an interesting argument. But I think that this response— which I am not attributing to anyone in particular—is miscon- ceived at a number of levels. Most notably, it misconceives the role of law in a well-ordered society. It is true that Rawls’s con- ception of a well-ordered society is part of what he calls “strict- compliance theory.” But, for one thing, it is not at all clear how we are supposed to get there. Consider again the case of intoler- ant religions. They don’t feature in a well-ordered society. Why? Presumably because they have died out. But Rawls says a little more than that: he says that the basic institutions of a just society “inevitably encourage some ways of life and discourage others, or even exclude them altogether” (PL, 195). That is an ambiguous formulation. What does “discourage” mean here, in terms of the

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operation of institutional arrangements? And what does it mean to “exclude” certain ways of life altogether?

One thing is for sure. We should not think of a well-ordered society as a utopian fantasy, in which laws are unnecessary be- cause everyone’s attitudes are now utterly just. No one supposes that law can be eliminated from the basic structure of a well- ordered society, or that we can drop the laws about murder or burglary because, by definition, no one in a just society would ever be motivated to engage in those crimes. Rawls’s society is not utopian in that fantasy sense; it is steadfastly located in the circumstances of justice, which include subjective circumstances of anxiety and limited strength of will among the citizens.20 Rawls himself gives us a fine discussion in A Theory of Justice of the role of law, including the role of coercive law and sanctions, in a well-ordered society. He says there that

even in a well-ordered society the coercive powers of gov- ernment are to some degree necessary for the stability of so- cial cooperation. For although men know that they share a common sense of justice and that each wants to adhere to the existing arrangements, they may nevertheless lack full confidence in one another [T]he existence of effective

penal machinery serves as men’s security to one another.21

Maybe in a well-ordered society “sanctions may never need to

be imposed.”22 But this doesn’t mean that their existence or the laws providing for them are unnecessary or redundant. Apart from anything else, as Emile Durkheim argued, penal laws have an important expressive as well as a coercive function; and one

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would expect that expressive function to be at the fore in a well- ordered society, particularly in connection with the public and visible assurance of just treatment that a society is supposed to provide to all of its members.23

In any case, even if a well-ordered society could dispense with laws prohibiting group defamation, it would be a mistake to infer from this that the societies we know must be prepared to dis- pense with those laws, as a necessary way of becoming well- ordered. Societies do not become well-ordered by magic. The expressive and disciplinary work of law may be necessary as an ingredient in the change of heart within its racist citizens that a well-ordered society presupposes. And anyway, as with all issues of justice, the necessity of such laws is a matter of the goods to be secured and the likelihood that they can be secured in the ab- sence of legal intervention. If, as I am going to argue, the good to be secured is a public good, a general and diffuse assurance to all the inhabitants of a society concerning the most basic elements of justice, then it is natural to think that the law would be in- volved—both in its ability to underpin the provision of public goods and in its Durkheimian ability to express and communi- cate common commitments. This is particularly likely to be true in the case of societies, like European societies (and I think also the United States), which have not yet entirely shaken off histo- ries of murderous racist terror and oppression.

Assurance

Why does it matter what a well-ordered society looks like? Why do appearances count? The answer has to do with security and

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assurance. As I said earlier, I want to build on an insight of Rawls’s that a well-ordered society is one “in which everyone ac- cepts, and knows that everyone else accepts, the very same prin- ciples of justice” (PL, 35). The idea is that the look of a society is one of its primary ways of conveying assurances to its members about how they are likely to be treated, for example, by the hun- dreds or thousands of strangers they encounter or are exposed to in everyday life.

The content of the assurances conveyed in this way might vary. In Rawls’s philosophical ideal, a well-ordered society is defined by reference to the whole detailed array of principles that char- acterize his conception of justice as fairness: what people know, and what they assure each other of, is their joint allegiance to the “Principle of Basic Liberties,” the “Difference Principle,” and the exact balance between the Difference Principle and the “Equal- Opportunity Principle,” along with the various priority rules and so on. These are the principles constitutive of Rawls’s own con- ception of justice, and he is using the idea of a well-ordered soci- ety to imagine what a society would be like if it and all its mem- bers were imbued with respect for principles of this kind. He is of course right to note that one of the reasons we cannot describe the United States as a well-ordered society in this sense is that there is nothing approaching a consensus about justice at this level of detail. But in the real world, when people call for the sort of assurance to which hate speech laws might make a contribu- tion, they do so not on the controversial details of someone’s fa- vorite conception of justice, but on some of the fundamentals of justice: that all are equally human, and have the dignity of hu- manity, that all have an elementary entitlement to justice, and

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that all deserve protection from the most egregious forms of vio- lence, exclusion, indignity, and subordination.24 Hate speech or group defamation involves the expressed denial of these funda- mentals with respect to some group in society. And it seems to me that if we are imagining a society on the way to becoming well-ordered, we must imagine ways in which these basic assur- ances are given, even if we are not yet in a position to secure a more detailed consensus on justice.

So far as these fundamentals are concerned, in a well-ordered society, “[c]itizens accept and know that others likewise accept those principles, and this knowledge in turn is publicly recog- nized” (PL, 66). Why, exactly, is the public and visible conveyance of this knowledge important? I referred earlier to political aes- thetics: the decent drapery celebrated by Edmund Burke; the no- tion that to make us love our country, our country must be lovely; and so on. But when we ask about the public conveyance of these assurances, we are not just talking about justice on show for the sake of an impressive or pretty display (in the way that a soci- ety might display the glories of its power or the splendor of its culture or the prowess of its athletes). We are not even talking about a society displaying pride in its achievements on the front of equality or diversity, touching though such displays sometimes are. We are talking about displays that matter to the individuals whose ordinary conduct of life and business relies on widespread acceptance of the fundamentals of justice. We are talking about the security that such individuals have and need in connection with that reliance. In a well-ordered society, where people are vis- ibly impressed by signs of one another’s commitment to justice, everyone can enjoy a certain assurance as they go about their

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business. They know that when they leave home in the morning, they can count on not being discriminated against or humiliated or terrorized. They can feel secure in the rights that justice de- fines; they can face social interactions without the elemental risks that such interaction would involve if one could not count on others to act justly; there is security, too, for each person’s proper pride and dignity against the soul-shriveling humiliation that a discriminatory rebuff can give rise to. David Bromwich once quoted a remark that President Lyndon Johnson made in re- sponse to a question about the moral necessity of the 1964 Civil Rights Act. The president’s response? “A man has a right not to be insulted in front of his children.”25 It is a telling image of the ugliness and distress that the details of discrimination inflict upon people;26 and it is security against interactions of this kind in the ordinary dailiness of life, as much as the upholding of any grander constitutional right, that is at stake when we ask about the assurances that a well-ordered society holds out for its citizens.

In a landmark case that we have already mentioned, R. v. Keeg- stra (1990), the Canadian chief justice Brian Dickson said this about the effect that public expressions of hatred may have on people’s lives:

The derision, hostility and abuse encouraged by hate propa- ganda . . . have a severely negative impact on the individual’s sense of self-worth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them in contact with non-group members or adopting attitudes and pos- tures directed towards blending in with the majority. Such

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consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, among other things, respect for the many racial, religious, and cultural groups in our society.27

The point of the visible self-presentation of a well-ordered soci- ety, then, is not just aesthetic; it is the conveying of an assurance to all the citizens that they can count on being treated justly.

However, when a society is defaced with anti-Semitic signage, burning crosses, and defamatory racial leaflets, that sort of assur- ance evaporates. A vigilant police force and a Justice Department may still keep people from being attacked or excluded, but they no longer have the benefit of a general and diffuse assurance to this effect, provided and enjoyed as a public good, furnished to all by each.

Focusing for a moment on the assurance itself, notice how it connects to dignity and reputation in the sense discussed in Chapter 3. A person’s dignity is not just a decorative fact about that individual. It is a matter of status, and as such it is in large part normative: it is something about a person that commands respect from others and from the state. Moreover, one holds a certain status not just when one happens to have a given set of entitlements, but when the recognition of those rights or entitle- ments is basic to how one is in fact dealt with. The element of assurance that one will be dealt with on this basis is an intrinsic part of what dignity requires. So it is with the fundamentals of social reputation. (Remember how we distinguished the funda- mentals of an individual’s reputation as a person, a member of society in good standing, from the details of personal reputation

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which it might be the function of tort law to enforce.) We accord people dignity on account of the sorts of beings human persons are, and we are gravely concerned when it is said publicly that some people by virtue of their membership in a racial, ethnic, or religious group are not really beings of that kind and so are not entitled to that basic dignity. Such hateful claims are not just an- thropological speculations; they intimate that the people con- cerned should expect to be treated in a degrading manner if the person making the hateful claim and the fellow-travelers that he is appealing to have their way.

Does this mean that individuals are required to accord equal respect to all their fellow citizens? Does it mean they are not permitted to esteem some and despise others? That proposition seems counterintuitive. Much of our moral and political life in- volves differentiation of respect. People respect those who obey the law and do good, while withholding their respect from those they regard as wrongdoers. Democrats respect President Barack Obama, while some conservatives despise him; most Republicans have a great deal of respect for former president George W. Bush, while some of his political opponents want him tried as a war criminal. Many people despise bankers after the recent financial crisis. So are we now saying that these distinctions of respect are impermissible and that everyone has a duty to respect everybody else? Not quite.

It is important to distinguish between two senses of “respect” that might be in play here—what Stephen Darwall has called “appraisal respect” (which varies in one’s estimation of a person by their virtues, vices, crimes, views, merits, and so on) and “rec- ognition respect” (which is fundamental to the dignity of persons

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and which is invariant, even governing how they are to be treated when they are guilty of terrible crimes).28 It is recognition respect that we are talking about here: one’s entitlement “to have other persons take seriously and weigh appropriately the fact that they are persons in deliberating about what to do.”29 The fact that we might subscribe to different estimations of different persons as a matter of appraisal respect does not show that we may not rea- sonably be required to play our part in society’s accordance of recognition respect for one another.

Let us come back now to the assurance that people need from one another in a well-ordered society. How is this assurance con- veyed? I don’t think Rawls imagines that there will be billboards proclaiming the principles of justice as fairness or even the fun- damentals of recognition respect. The creepy totalitarian flavor of that makes us uneasy, and rightly so. There may be some af- firmative efforts: I think of the public proclamation of a new constitution, like the South African constitution, seeking to fo- cus people’s attention on the fact that they all now have these rights; or just the mundane business of pamphlets and advertise- ments ensuring that people know their rights and know how to claim them. I saw a sign recently on the New York subway, in English and Spanish, telling people that they do not have to put up with unwanted sexual touching in a crowded subway car.

Mostly, however, the assurance is implicit, as though the un- derlying status of each person as a citizen in good standing goes without saying. Various forums of social, political, and commer- cial interaction are just open to all, as a matter of course; no one has to say “Muslims Welcome” or “African Americans Allowed.” Indeed, if they do, that in itself is evidence of a problem, now or

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in the recent past. It is tremendously important that assurance be conveyed in this implicit way so that it can be taken for granted, and so that people who might otherwise feel insecure, unwanted, or despised in social settings can put all that terrible insecurity out of their minds, and concentrate on what matters to them in social interaction: its pleasures and opportunities.

At the same time, the necessary implicitness of this assurance makes it tremendously vulnerable. Suppose that a spate of dis- criminatory signs appear; maybe they bespeak a real intention to discriminate, or maybe they do not. But suddenly the stakes have changed for those to whom they are directed. Or think of this: suppose that after a 9/11-type attack, hateful signs go up intimat- ing that Muslims should be accosted as terrorists, and suddenly taxicabs in New York City start sporting American-flag decals. One could read the presence of those flags as a sign not of pride or patriotism, but of fear—that cabs without them will have their Muslim-looking drivers beaten up.

This helps us to see what hate speech is about. The point of the bigoted displays that we want to regulate is that they are not just autonomous self-expression. They are not simply the views of racists letting off steam. The displays specifically target the so- cial sense of assurance on which members of vulnerable minori- ties rely. Their point is to negate the implicit assurance that a so- ciety offers to the members of vulnerable groups—that they are accepted in society, as a matter of course, along with everyone else; they aim to undermine this assurance, call it in question, and taint it with visible expressions of hatred, exclusion, and con- tempt. And so it begins: what was implicitly assured is now visi- bly challenged, so that there is a whole new set of calculations for

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a minority member to engage in as he sets out to do business or take a walk in public with his family.

The Analogy with Pornography

I spoke earlier about an analogous application of this sort of analysis to the related issues of pornography, sexist advertising, and the demeaning depiction of women—things we find in more or less inescapable form all over the visible (and the virtual) pub- lic environment of our society. Even if we focus just on adver- tising, we can ask questions similar to those I have been asking about hate speech. Can we characterize as well-ordered a society decorated—on advertising billboards, subway placards, and innu- merable television screens—in ways that demean one large class of its citizens, ways that convey a degrading message about their sexuality, ways that highlight a particular range of opportunities and activities presented as appropriate for them to the exclusion of a large number of other activities and opportunities, or ways that portray as normative a kind of subordination in relationships that is at odds with the idea of an autonomous person working out her own destiny under conditions of justice and dignity? And this is to say nothing of the deeper disgrace of what Catharine MacKinnon calls a society “saturated with pornography,” and the degradation that pornography depicts in the real and virtual neighborhoods that it dominates.30

The case against pornography has its own integrity, and it should not be hijacked here. But we learn all the time from anal- ogy with others’ work. I have found the emphasis by Catharine MacKinnon and others on pornographic spectacle as visible sex-

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ism a helpful way of informing my more abstract thought about this question of how a well-ordered society presents itself, about the cumulative effect on the visible environment of numerous individual defacements, and about the contribution that might reasonably be demanded from citizens to the maintenance of a respectful atmosphere. (I don’t mean abstract for its own sake, but abstract so that similar insights can be applied elsewhere.) MacKinnon’s discussion, for example, about the entrenched spec- tacle of “the hundreds and hundreds of magazines, pictures, films, videocassettes, and so-called books now available across America in outlets from adult stores to corner groceries, [representations in which] women’s legs are splayed in postures of sexual submis- sion, display, and access” for all to see—this has been useful in crystallizing my thoughts about what it is for a society to embody fundamental disrespect in its visible appearance.31 And though I know she has misgivings about using the logic of defamation as the whole basis of the case against pornography, I have found MacKinnon’s insights on the connection between the defamation of women and the indignity and insecurity they face in everyday life hugely helpful in thinking through similar connections in the realm of hate speech: “Construed as defamation in the conven- tional sense, pornography says that women are a lower form of human life defined by their availability for sexual use. Women are dehumanized through the conditioning of male sexuality to their use and abuse, which sexualizes, hence lowers, women across the culture, not only in express sexual interactions.”32 Something of the same is true of racially or ethnically demeaning signs and posters, which not only intimate an intention to discriminate in particular areas, but bespeak a whole mentality abroad in society

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that is incompatible with the aspiration of ordinary members of racial and religious minorities to live their lives in this society on the same terms as others.

Of course there are differences. The visibly pornographic as- pect of our society has a pedagogical function that dwarfs in its scale and intensity the attitudes that racist hate speech tries to inculcate. Not only does pornography present itself as undermin- ing society’s assurance to women of equal respect and equal citi- zenship, but it does so effectively by intimating that this is how men are taught, around here, on the streets and on the screen, if not in school, about how women are to be treated:

Through its consumption, [pornography] further institu- tionalizes a subhuman, victimized, second-class status for women by conditioning men’s orgasm to sexual inequality. When men use pornography, they experience in their bod- ies, not just their minds, that one-sided sex—sex between a person (them) and a thing (it)—is sex, that sexual use is sex, sexual abuse is sex, sexual domination is sex. This is the sex- uality that they then demand, practice, purchase, and live out in their everyday social relations with others. Pornogra- phy works by making sexism sexy. As a primal experience of gender hierarchy, pornography is a major way in which sex- ism is enjoyed and practiced, as well as learned. It is one way that male supremacy is spread and made socially real.33

Proponents of free speech in the areas of pornography and hate speech have indicated that they are not prepared to consider any of this unless it is shown to be connected with, respectively,

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sexual or racial violence. MacKinnon has risen admirably to this challenge, in Only Words and elsewhere. But the advantage of the assurance-versus-defamation framework that I am using is that it does not allow the issue to be presented simply as a matter of the causation of violence, important though that is. There is also the deeper issue of public order that I spoke about in Chap- ter 3—the dignitary order of society. And it seems to me that women are entitled to ask whether official legal tolerance of por- nography and of its pervasive public display is consistent with our commitment to the dignity and equality of women. I think the connection between dignity and defamation is as important here as it is in the case of hate speech (though the relationship is also more complicated). In both cases, a well-ordered soci- ety ought to be conveying, at least implicitly, the assurance that members of a vulnerable group can live their lives gracefully and in a dignified manner, in routine interactions with others— friends, colleagues, and strangers; in both cases, the purveyors of hate and degradation do their best to undermine any assurance that has been given to this effect; in both cases, their efforts in- volve the twisted portrayal of attributes shared by members of the vulnerable group. I wish there were space to pursue these analogies further. I have taken this opportunity to indicate the connectedness between hate speech and pornography in the hope that this will enrich our sense of what is at stake on both sides of the analogy.

Rival Public Goods

Let us return now to the issue of assurance in a well-ordered so- ciety. Provision of the assurance that I am talking about is like a

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public good, albeit a silent one. It is implicit rather than explicit, but it is nonetheless real—a pervasive, diffuse, general, sustained, and reliable underpinning of people’s basic dignity and social standing, provided by all to and for all.

A well-ordered society, it seems to me, has a systemic and structural interest in provision of this public good—that is, in the general and diffuse furnishing of this assurance and the recogni- tion and upholding of the basic dignity on which it is predicated. It has a powerful interest in each person’s having the ability to rely on such an assurance. This public good of assurance certainly has a collective aspect, like the good of a cultured or a tolerant society.34 But like street lighting (a common and mundane ex- ample), the assurance I am talking about is a public good that redounds to the advantage of individuals—millions of them— namely, those whose dignity is affirmed when its social under- pinnings might be otherwise in question and those whose reli- ance is vindicated by a sense that there doesn’t have to be anything explicit on which to rely.

However, unlike street lighting, which can be provided by a central utility company, the public good of assurance depends on and arises out of what hundreds or thousands of ordinary citizens do singly and together. It is, as John Rawls puts it, a product of “citizens’ joint activity in mutual dependence on the appropriate actions being taken by others” (PL, 204). It may not affirmatively require a great deal from the ordinary citizen; this fact is part of what it means to say that this is an implicit good. But just be- cause assurance is a low-key background thing, the prime respon- sibility for its provision that falls upon the ordinary citizen is to refrain from doing anything to undermine it or to make the fur- nishing of this assurance more laborious or more difficult. And

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this is the obligation that hate speech laws or group defamation laws are enforcing.

Those who publish or post expressions of contempt and ha- tred of their fellow citizens, those who burn crosses and those who scrawl swastikas, are doing what they can to undermine this assurance. Their actions may not seem all that significant in themselves; an isolated incident here, a forlorn Nazi procession there, some ratty racist little leaflet. But as I’ve said, precisely be- cause the public good that is under attack is provided in a gen- eral, diffuse, and implicit way, the flare-up of a few particular in- cidents can have a disproportionate effect. I will say a little more at the conclusion of this chapter about social and historical con- texts. For now, it is worth considering this observation by Wil- liam Peirce Randel, a historian of the Ku Klux Klan, about an isolated incident of cross-burning. “Such is the symbolic power of the fiery cross,” said Randel, “that people in many parts of the country still talk in subdued voices about the cross that was burned one night years ago in the field across the road or on a lo- cal hilltop.”35 And he added this about the isolated incident of the burning cross: “What [a cross-burning] is commonly taken to mean is that neighbors one sees every day include some who are Klan members, and that Klaverns supposedly extinct are only dormant, ready to regroup for action when the Klan senses that action is needed. It casts a shadow on many a neighborhood to know that it harbors a potentially hostile element which at any moment may disrupt the illusion of peace.”

Hate speech doesn’t just seek to undermine the public good of

implicit assurance. It also seeks to establish a rival public good as the wolves call to one another across the peace of a decent society.

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The publication of hate speech, the appearance of these symbols and scrawls in places for all to see, is a way of providing a focal point for the proliferation and coordination of the attitudes that these actions express, a public manifestation of hatred by some people to indicate to others that they are not alone in their rac- ism or bigotry. Frank Collin, the leader of the Nazis who sought to march through Skokie, put it this way: “We want to reach the good people—get the fierce anti-Semites who have to live among the Jews to come out of the woodwork and stand up for them- selves.”36 Accordingly, hate speech laws aim not only to protect the public good of dignity-based assurance, but also to block the construction of this rival public good that the racists and Islamo- phobes are seeking to construct among themselves.

It is sometimes objected that such laws simply drive hate un- derground. But in a way, that is the whole point: we want to con- vey the sense that the bigots are isolated, embittered individuals, rather than permit them to contact and coordinate with one an- other in the enterprise of undermining the assurance that is pro- vided in the name of society’s most fundamental principles. True, there is a cost to this: such laws may drive racist sentiment out of the marketplace of ideas into spaces where it cannot easily be engaged. But the notion that what we most need for expression and publication of this kind is a great debate in which Nazis and liberals can engage one another honestly and with respect for each other’s points of view is a curious one. Of course we ought to be able to speak out in favor of our most fundamental com- mitments. But presenting them as propositions up for grabs in a debate—as opposed to settled features of the social environment to which we are visibly and pervasively committed—is exactly

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what the speech in question aims for. Its implicit message to the members of vulnerable minorities is something like this: “I know you think you are our equals. But don’t be so sure. The very soci- ety you are relying on for your opportunities and your equal dig- nity is less than whole-hearted in its support for these things, and we are going to expose that half-heartedness and build on that ambivalence every chance we get. So: think about it and be afraid. The time for your degradation and your exclusion by the society that presently shelters you is fast approaching.” If this is the mes- sage of hate speech, then it is not at all clear that public engage- ment is the sole appropriate response; nor is it at all clear that driving this message underground is altogether a bad thing.

Clear and Present Danger?

In a way, we are talking here about an environmental good—the atmosphere of a well-ordered society—as well as the ways in which a certain ecology of respect, dignity, and assurance is main- tained, and the ways in which it can be polluted and (to vary the metaphor) undermined. The environmental analogy has another advantage: it changes the terms of the conversation about public disorder. Many who are open to these concerns about societal as- surance say that the law should not be brought in to protect such assurance, except when there is a clear and present danger of its collapse. This is similar to the concern about violence which we considered above, at the end of section on pornography: unless there is a demonstrable and immediate causal connection with violence against women (say MacKinnon’s opponents), so that

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each act of consuming pornography makes a discernible differ- ence to a man’s propensity to rape or assault women, we should not contemplate restricting freedom of expression.

Imagine if we took that attitude toward environmental harms

—toward automobile emissions, for example. Suppose we said that unless someone can show that my automobile causes lead poi- soning with direct detriment and imminent harm to the health of assignable individuals, I shouldn’t be required to fit an emission-control device to my car’s exhaust pipe. It would be ir- responsible to reason in that way with regard to environmental regulation; instead we figure that the tiny impacts of millions of actions—each apparently inconsiderable in itself—can produce a large-scale toxic effect that, even at the mass level, operates in- sidiously as a sort of slow-acting poison, and that regulations have to be aimed at individual actions with that scale and that pace of causation in mind. An immense amount of progress has been made in consequentialist moral philosophy by taking causa- tion of this kind, on this scale and at this pace, properly into ac- count,37 and it is odd and disturbing that older and cruder models of social harm remain dominant in the First Amendment arena.

The Rule of Law and the Role of Individuals

I have said that dignity-based assurance is a public good provided to all by all, and that unlike the benefit of street lighting it cannot be provided by a central utility. I am sure some readers will balk at this and say that it is a mistake for me to saddle private citizens with what is surely a responsibility of government. Is not the

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manifestation of commitment by government much more im- portant than the manifestation of the attitudes of citizens to one another?

This gives me one last objection to answer: maybe, in the end, it doesn’t matter what a well-ordered society looks like. Surely what is important, in the end, is upholding the principles of jus- tice, not the visible display of citizens’ attitudes. Shouldn’t the primary vehicle of assurance be the government’s resolution to uphold the laws? Isn’t the most important thing the government’s manifestation of attitude and commitment in this regard? If laws against discrimination are upheld and if people are confident that they will be upheld, what does it matter what private signage is out there? If laws protecting people from violence or from being driven out of their neighborhoods are upheld and if people are confident that they will be upheld, what does it matter whether the odd cross is burned on somebody’s lawn? If the laws protect- ing people against violence and mass murder are upheld and if people are sure that they will be upheld, what does it matter what neo-Nazis say on the placards that they carry through Jewish neighborhoods in an Illinois suburb? It is law enforcement that matters, not the cardboard signs. That is the objection.

But this is a false contrast. In no society is the state able to of- fer these guarantees on its own account without a complemen- tary assurance that ordinary citizens will play their part in the self-application of the laws.38 Think of the administration of anti-discrimination laws. The law does not have the resources to provide an armed escort for every minority member who wants to approach and enter a school, or university, or other public ac- commodation without fear of being turned away and humiliated

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on racial grounds. We know exactly what that looks like: the spectacle of the National Guard being deployed to desegregate a school in Little Rock, Arkansas, in 1957. States don’t have the co- ercive resources to do this in any but a very few cases, and anyway it is hardly a satisfactory provision of justice when an individual has to proceed under armed escort. Even routine enforcement ef- forts by the Department of Justice against routine discrimination can handle only a handful of cases. By and large, the law has to rely in this area—as in almost every area—on self-application by ordinary citizens. And this means that any citizen who relies upon the law is, in the last analysis, relying indirectly on the vol- untary cooperation of his or her fellow citizens.

That’s the reliance we are talking about when we talk of the assurance that is furnished in the visible aspect of a well-ordered society. And that’s the concern about the public expression of racist attitudes by members of the public: they are intimations that certain members of the public (and those they are trying to influence) will not play their necessary part in the administration of the laws, if they can get away with it. What’s more, they are playing a competing assurance game: they are using public and semipermanent displays to assure those who are disinclined to play their part in upholding laws against violence and discrimi- nation that they are not alone, that there are plenty of others like them.

Ronald Dworkin takes the view that all this is a matter for the government. The government is the entity which is required to show and display equal concern and respect for its citizens.39 But the citizens themselves have no such obligation: Dworkin thinks they are permitted to show respect for some and concern for oth-

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ers—respect for their parents and concern for their children—in ways that differ from the concern and respect that they manifest to strangers. There may be something in this division of private and public responsibility. But as stated, it is too simple. Govern- ment is not an entity separate from the people, not in the forma- tion of its policies or the enactment of its laws, and certainly not in the discharge of its distinctive responsibilities. The discharge of some governmental responsibilities is impossible without the whole-hearted cooperation of members of the public, and the discharge of other public responsibilities is certainly vulnerable to what private people do in public. Many of the responsibilities of justice are of the former sort, and clearly the responsibility of providing the assurance that Rawls tells us will be a feature of a well-ordered society is of the latter sort. We must not be misled into regarding hate speech and group defamation as essentially private acts with which governments are perversely trying to in- terfere in the spirit of mind control. Hate speech and group defa- mation are actions performed in public, with a public orientation, aimed at undermining public goods. We may or may not be op- posed to their regulation; but we need at least to recognize them for what they are.

Transition and Assurance

In this chapter, I have taken up John Rawls’s suggestion that in a well-ordered society, citizens should have and be able to rely upon public assurance of one another’s commitments to justice, and that this reliance should be public knowledge, publicly con-

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veyed. I have argued that one way of thinking of the point of group-defamation laws is that they protect these assurances against egregious forms of denigration, subversion, and coordi- nated defiance. People need these assurances and they need pro- tection against displays and manifestations whose point is to un- dermine them and to begin constructing an assurance of exactly the opposite kind—an assurance that, whatever the constitution and the laws say, those who discriminate or those who try to drive minorities out of majority neighborhoods will be in good and supportive company. I argued that people have a responsibility to participate in the provision of the first kind of good, at least to the extent of not participating in undermining it; and that soci- ety cannot do what is necessary to uphold this good unless it is permitted to enforce that responsibility.

I suspect that one could make a case along these lines in the abstract, applicable to any society, based entirely on the circum- stances of justice, which, as Rawls has insisted, are characteris- tic of even the most well-ordered society: moderate scarcity, so- cial pluralism (which may include cultural inscrutability), limited strength of will, and so on.40 In any such society, people will stand in need of the assurances which, in Rawls’s account, it is the func- tion of a well-ordered society to provide.

But the case becomes particularly pressing when we think not just of the abstractions of political philosophy, but of real-world societies here on earth, and the chances of their becoming any- thing like well-ordered. For us, the question is not just an abstract need for assurance that people might have even in the best of so- cial circumstances, but a need for assurance in relation to the

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history of their society, which in most cases has been far from well-ordered—indeed, hideously ill-ordered—so far as the basic elements of justice and dignity are concerned.

It is often said that there is a historical reason for the fact that, compared with Americans, people in European countries are more receptive to laws prohibiting group defamation. This is half true: European countries do have to think about these mat- ters against the background of Nazism and the Holocaust (still within living memory). But it is false—and egregiously so—if this is supposed to suggest that Americans have no such burden. Many Americans and the parents of many Americans suffered in the Holocaust. And even on its own shores, the United States has historical memory within the past two centuries of one of the most vicious regimes of chattel slavery based on race that the world has ever known, upheld by the very Constitution that pur- ported then and still purports to guarantee individual rights; the United States has living memory of institutionalized racism, seg- regation, and the denial of civil rights in many of its states; living experience—here and now—of shameful patterns of discrimina- tion and racial disadvantage; and above all, living memory of ra- cial terrorism—lynchings, whippings, church-bombings, cross- burnings and all the paraphernalia of Klan symbolism—from 1867 to the present.

This is the background against which people—especially members of formerly subordinated minorities—have to situate public manifestations of race hate, group libel, and the like. It is not merely that the tone and content of such displays is at odds with the guarantees supposedly afforded as a public good by the members of a well-ordered society to the members of a well-

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ordered society. It is that these manifestations intimate a return to the all-too-familiar circumstances of murderous injustice that people or their parents or grandparents experienced. Such int- imations are directly at odds with the assurances that a well- ordered society is supposed to provide. So it is important that we remember: these assurances are sought not just in the abstract, but in relation to precisely the history that hate speech nightmar- ishly summons up.

As I said in Chapter 1, my aim is not directly to advocate hate speech laws in the United States, but to understand the case for them in the societies that have them. And certainly whatever case I am making is not Rawlsian, really. As I said, I imagine that Rawls, like many of his close friends, was opposed to laws of this kind. But I have used a Rawlsian framework because I think that his abstract conception of a well-ordered society is very useful for deepening our understanding, in the American case, of what might be at stake on one side of the hate speech debate. What is helpful about his conception—what we can take and use perhaps beyond the context of his particular body of work—is that it is not enough that a society be effectively regulated by a conception of basic justice and equal dignity. What is important is that citi- zens have a public assurance that this is so, and that this public assurance be provided not just by the government and the laws, but by citizens assuring one another of their willingness to coop- erate in the administration of the laws and in the humane and trustful enterprise that elementary justice requires.

As I say, it is not just a matter of protecting people from spo- radic insult, offense, and wounding words. It is a matter of secur- ing, in a systematic fashion, a particular aspect of social peace and

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civic order under justice: the dignity of inclusion and the public good of mutual assurance concerning the fundamentals of justice. It is important to secure this in any community, but it is particu- larly important for a community burdened by a history like ours that aspires now to become a just and well-ordered society.