FESC: Hate Speech, Political Conversations, and Citizenship

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

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