Just as “white supremacy” as a field of research sets aside a social dilemma that is not said to be part of the normal political process, similarly hate speech and hate crimes carve out a special category of articulation and deviant behavior that demand special prosecutory and retributive tools to address the problem. Before the mid-1980s, there was no such designation as a “hate crime.” Representatives John Conyers,[i] Barbara Kennelly, and Mario Biaggi, all Democrats, are to be credited with inventing and popularizing the term “hate crime,” in their bill titled the “Hate Crime Statistics Act,”[ii] which instructed the Department of Justice to collect facts related to crimes impelled by racial, ethnic, and religious bias. Soon a hate crime epidemic began to be reported in the media, raising questions about the degree to which hate crimes were different from ordinary crime, and how one might know the difference. The hate crime outbreak meshed with the rise of liberal identity politics in the late 1980s and early 1990s, and the statistical impulsion necessarily led to fulfillment of the new legal designation in sufficient numbers to justify the categorization. In essence, bigotry became the greatest and most unforgivable of crimes, and to attract hate crimes became a way to solidify an identity group’s victim status, a sharp departure from the earlier claims of economic success which used to be said to strengthen a group.
In the Department of Justice’s Bureau of Justice Assistance’s A Policymaker’s Guide to Hate Crimes (1997), the government tried to pare down the definition and reporting of hate crimes, relying on watchdog groups like the ADL to a large extent, and also resorting to the ACLU’s moderated position, whereby the latter organization opposed the St. Paul ordinance challenged in R.A.V. v. City of St. Paul but supported the Supreme Court decision upholding the law in Wisconsin v. Mitchell (both to be discussed later). As the BJA’s manual summarizes, the ACLU draws a distinction between constitutionally protected speech and that intended to harm or threaten, so that penalty-enhancing hate crime statutes, “If properly drawn…do not punish protected speech or associations; rather, they reflect the heightened seriousness with which society treats criminal acts that also constitute invidious discrimination and are intended to or have the effect of depriving persons of legal rights or the opportunity to participate in their community’s political or social life simply because of their race, religion, gender, national origin, sexual orientation, or other group characteristics.” As discussed later, I do not subscribe to this distinction, which appears to me unsustainable, but aside from my philosophical disagreement there is also the question of the degree to which censoring the alt-right or any supremacist movement is likely to have the opposite of the intended effect, by giving more power to the movements than they would otherwise have.
The new criminal category of hate crimes is problematic because it ventures into the area of thought as well as conduct, since a hate crime, in order to be so constituted, must have the element of premeditation in terms of prejudice, without which it would be an ordinary crime. To separate thought from action becomes especially difficult when a person may be allied with a “hate group,” which presumes that he or she no longer has the independence of mind to choose his or her own course of action and is instead blindly swayed by the group. Verbal salvos by alt-righters online quickly lead to conclusions about the general state of prejudice, manifesting in violent action, in the United States as a whole. To the extent that hate crimes statistics are collected, reported on, and magnified in the general perception, they may actually be leading to the ossification of the very prejudices it was their ostensible intent to prevent. Rather than seeking to dissolve economic and class barriers, as has been true of liberal democracy at its best throughout its history, if the focus turns to removing prejudice from minds (as a way of forestalling the odious category of hate crimes), then society’s attention might well have shifted from procuring the attainable to tilting after the impossible. The alt-right’s recent demise is best seen in this perspective. Following the ADL’s model, many states have adopted the doubling of the normal punishment of a crime if ethnic intimidation is in play, and increased penalties are also at stake if institutional vandalism can be shown, again as per the ADL’s model statutes.
The self-presentation of some alt-righters—or perhaps the majority of them—has become saturated with feelings of “love” rather than “hate.” They often claim that their beliefs are motivated by love for the white race (to ensure its preservation) rather than hatred for the other races. They have borrowed a page from liberal identity groups by seeking “affirmation” rather than denial as the strategic mindset. They tend to reject racism as a compulsion, claiming that they have been put on the defensive by the real racists, the brown and black races who seek their irrelevance and even extermination by way of race mixing (of which multiculturalism is the ideological support). Even when gays, transgenders, Jews, Mexicans, Muslims, Arabs, and blacks are labeled intellectually and physically inferior to whites, this is presented not necessarily as hate but in the garb of an idealistic defensive posture to preserve the best of Western civilization. Not all alt-righters may disavow white superiority, but many fellow travelers may do so. It is almost as if among this subset of the population there is the same fear driving them toward acceptability, and even popularity, namely that they not be seen as prejudiced, even if everything they say and do seems to be the essence of prejudice.
Some alt-righters have gone the other way by claiming that prejudice is all-pervasive, non-whites being no less susceptible to it than whites, and therefore we might as well make peace with it by admitting its ubiquity rather than trying to root it out and target it for special punishment; in fact, in their view acceptance of universal prejudice among all races is the surest guarantee of social peace and even justice.
In the pre-Internet days, the ADL and other watchdog groups had to compile information from various forms of local reportage to come up with cumulative national statistics about hate crimes and the rise of prejudice, but the alt-right relies on publicity as a form of intimidation, all its various forms of intimidation freely visible on the Internet. In the late 1980s and early 1990s many politicians, such as Charles Schumer and John Kerry, testified to the existence of a hate crimes plague, at a time when neither identity politics nor neoliberal globalization had reached anywhere near the rampant proportions they later attained; in that era, hate crimes legislation seemed to have been a way to protect society against the psychological damage that a certain visible form of prejudice might inflict upon otherwise innocent members. In recent times, a single incident—the murder of Heather Heyer—has been seen as constituting a straight line from the speech provided by online purveyors of alt-right hate, serving as the justification to ban alt-right visibility.
Can Hate Speech Be Defined and Prosecuted?
The U.S. Supreme Court, regretfully, held in Chaplinsky v. New Hampshire (1942): “It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problems. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
Provisions against hate speech have become ever more central to the debate surrounding the methods of investigation and prosecution of hate crimes, because the idea is that hate crimes (the ultimate social offense) can be prevented by forestalling hate speech. The “fighting words” exception to the First Amendment[iii] was found not to be an operational means of prosecution by the government in the early part of the century, leading to the “group libel” exception, which seemed to have become enshrined in the 1952 Beauharnais v. Illinois case, but as with the fighting words exception, group libel has suffered the same fate of being available more in theory than practice. Famously, the 1977 Skokie, Illinois Nazi rally was not able to be stopped by recourse to a Skokie ordinance modeled after Beauharnais, as the Seventh Circuit quoted the Supreme Court in Street v. New York (1969): “It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The same fate of disfavor has befallen the campus speech codes that started arising in the late 1980s and early 1990s, the courts holding in such cases as Doe v. University of Michigan that the university’s policies were vague enough to sweep in too broad a swath of opinion under the rubric of stigmatizing individuals and groups, or in UWM Post, Inc. v. Board of Regents of the University of Wisconsin that the offensive words in question were not likely to lead to a violent reaction.[iv]
Likewise, the constitutionality of hate crime laws has also come under question, because if hate speech is weakened constitutionally then hate crimes, their logical outcome, are also in a similarly weakened position. In one case, R.A.V. v. St. Paul, the Supreme Court struck down a local ordinance designed to protect against fighting words by arguing that it was too broad, but in a later case the Court upheld, in Wisconsin v. Mitchell, the enhancement of punishment represented by a hate crime in a Wisconsin statute, thus preserving some chain of association between thought and conduct, resulting in higher penalties, rather than severing such connections altogether.
One of the great underappreciated elements of the Trump ascendancy has been the degree to which motive has come to the fore as the basis for judging the severity of crimes (or whether a crime has even been committed), since policymakers (such as former Attorney General Jeff Sessions, not to mention the president himself) have openly resorted to what by any definition should be considered hate speech, as prelude to making policy (such as the Muslim travel ban, or separating migrant children from parents at the border). While liberal institutions, from the media to the courts, have been vigilant in punishing hate speech emanating from the risible figures of the alt-right, operating on shoestring budgets and having to rely on social media to get the word out, their better-heeled counterparts at the top levels of government are immune from being contested within the explicit framework of hate speech and hate crimes.
When it comes to the swift upsurge of the alt-right, could it be that the last three decades of emphasis on hate speech and hate crimes has led to a situation where relations between racial groups appear to be worse than they actually are? Moreover, is this situation something that the liberal proponents of identity politics, as well as a government beholden to the neoliberal outcome of economic inequality but unwilling to do anything about it, both prefer? Do the crusades against hate speech and hate crimes teach us to look for white supremacy where it might not exist, and overlook it where it does? Is it naïve or realistic to believe that movements like that of white supremacy stem from propagation of hate speech, and therefore, in order to curtail an organized movement, individual eruptions of hate speech must be banned? If hate speech is a construct, facilitated by the rise of the Internet, then is white supremacy a similarly shaky construct?
A rather disturbing attempt to get into the heads of haters is presented by Jack Levin and Jack McDevitt in Hate Crimes: The Rising Tide of Bigotry and Bloodshed (1993), not surprisingly a book with the imprimatur of the SPLC’s Morris Dees, and building on the trope of “the shocking rise in brutal attacks”—and this in the early 1990s, which would now be considered almost a golden age for race relations. We are informed that stereotypes—“Why can’t they all be like Bill Cosby?” (except that Cosby himself is among the fatally tainted now)—have more power than we realize: they infantilize women and minority groups. “Bigotry is back” among comedians, in popular culture, in music (like 2 Live Crew, Ice-T, and N.W.A.), and even among religious leaders (like the Southern Baptists and the Nation of Islam). Anti-Semitism is everywhere, and the steps from thought to intent, from stereotype to defamation and injury, are predictable and linear. Resentment, stemming from the American belief in zero-sum economic exchange, assails minorities for deriving unfair advantage. Moreover, hate feeds into thrill-seeking, which seems to be a different sort of explanation than the conventional one (used in Levin and McDevitt’s book as well) of the authoritarian personality.
Individual hate is said to easily lead to organized hate, as Levin and McDevitt rely on a standard example from that era, which occurs again and again in most treatises: the murder of Ethiopian immigrant Mulugeta Seraw in Portland, Oregon, in 1988, for which crime, by association, Tom Metzger’s White Aryan Resistance (WAR) was held responsible, and where crusading attorney Morris Dees played the heroic role by holding Metzger liable to the tune of millions of dollars and effectively disempowering him. Hate organizations, though amorphous, are no less deadly, we are told, because they “intrigue” and “inspire” murderers, but it is all the more important to go after them because their nebulous and newly media-friendly language (heritage, instead of white Christianity; welfare cheats, instead of blacks) makes their influence that much more pervasive.
However, the real amorphousness occurs in mainstream politics, so if we are to hold organized hate groups responsible for murderous violence, then perhaps the locus of inspiration can squarely be found among elected officials. The problem with Levin and McDevitt’s explanation is that it takes in everything—all the psychological explanations for haters, as well as all the targets of hate—and therefore amounts to not much; it appears as a readymade trope into which each instance of “hate” can be plugged in, to yield the same results. Institutionalized economics is always left out of such paradigms, so that the ire of the liberal reader may stay focused on renegade individuals and organizations. While Levin and McDevitt, like other researchers in the field, easily talk about hate on the college campus, they do so without referring to the organized hate of unchecked capitalism and imperialism, which are embodied in the very structures of learning and behavior on campuses. When it comes to minority-against-minority hate crime, the authors suggest that economic competition is a sufficient explanation for the well-rehearsed instances of black against Asian, black against Latino, and black against Jewish crimes of the late 1980s and early 1990s.
Free Speech Absolutism and the Alt-Right
Critical race theorists Richard Delgado and Jean Stefancic, in Understanding Words That Wound (2004), have summarized the ACLU’s absolutist position—a view I unreservedly share—as resorting to the following four arguments:
“The “pressure valve” argument holds that allowing racists to blow off steam harmlessly is better than forcing them to hold things in, with the result that they may explode in violent, much more harmful ways later on. The “best friend” argument holds that free speech has been minorities’ best friend and a staunch ally in their fight for freedom. If minorities knew their own best interest, they would refrain from encumbering such a potent weapon. The “more speech” argument holds that the best approach to speech we don’t like is more speech—talking back to the utterer of hate speech, and strengthening the system of free expression rather than weakening it. The “reverse enforcement” argument holds that curbs against hate speech will inevitably boomerang against minorities. They will end up enforced, not against neo-Nazis, bigots, and white supremacists, but against speakers of color who say mildly reproachful things about whites or the white establishment.”
To me, each of these concerns by the old-line ACLU has already borne fruit in the wake of the repression directed against the alt-right avatars. I would argue that in the period since the eclipse of overt alt-right expression (such as the protests against Milo Yiannopoulos’s campus appearances, or the erasure of Andrew Anglin and the like on social media), already a more harmful pattern of white supremacy has been established, precisely because Trump and his allies have been able to dissociate themselves from the open expression of white supremacy, even as their concrete policies embody the very worst that the white supremacists would have wished.[v] In a sense, the existence and visibility of the alt-right was a more effective check on Trumpist white supremacy than is provided by its deletion.
Unfortunately, too, the easy recourse to banning alt-right speech has prevented initiatives along the lines of making more speech, by the economically oppressed minority, possible; the conditions under which this might be possible are not being discussed, because attention is focused on making the media more minority friendly, which to me seems the height of paternalism. I also believe, though we haven’t seen it yet, that with the end of the Trump presidency it is quite likely that a false era of good feelings (such as occurred during the Clinton presidency) might rest on prevention of “harmful” speech from both minorities as well as establishment whites—which would be a tragedy, when it comes to open discussion of racial inequities. Moreover, and perhaps most importantly, the banning of alt-right speech creates disproportionate legitimacy for only one kind of anti-alt-right speech, namely the establishment liberal version, which eschews thought about radical solutions to social inequities, from fundamental criminal justice reform to rethinking the tax code toward more progressive ends. When one avenue of thought is curtailed, as in the case of the alt-right provocateurs, it is quite possible that a larger, more beneficial stream of thought might also suffer, because it too is a radical viewpoint, just stemming from the opposite ideological spectrum. For all these reasons, I find none of the counterarguments against the ACLU’s formerly absolutist position convincing.
Delgado and Stefancic list some other objections to restrictions against hate speech, including the idea that minorities would be better off getting used to “tough love” (which might be more beneficial for them in the end), that speech codes are classist because they target working-class whites for whom such speech is normal rather than the more rarefied expressions of hate that upper-class whites might indulge in, that some low-level form of hate speech might be a social good to the extent that acknowledging its universality at least allows minorities to exist in some relatively benign relationship with dominant institutions rather than having to be excluded altogether because of the discomfort that targeting speech might create, and finally the libertarian position that any government intervention in private behavior, including hate speech, is ipso facto unwarranted. I have some sympathy with each of these objections to restrictions of speech, with serious doubts as to whether there is any linkage between proliferation of offensive language and violence against individuals and groups. The hostile environment that is the ire of those who would curtail speech has, in my opinion, been limited too greatly outside the economic sphere precisely because individuals’ words are easier to censor than offensive corporate behavior or governmental policies.
Here I would pause to notice certain parallel developments:
1) As campus speech codes have proliferated, in precisely the same period hate speech and all kinds of racist, sexist, and religious innuendo have flourished on talk radio, and more recently social media as well. As the campus seeks to be a safe space (and lately also the liberal administrators of the Internet seek to convert it too into a universal safe space), the idea of the unsafe space has been boomeranging to a place almost of centrality in the public sphere. Perhaps the alt-right = high-wire performance of the unsafe space in ironic gestures disguised as being unironic.
2) As the white supremacy resisters in the academy, the media, and publishing become more earnest and serious about the rightness of their cause, to the same extent the alt-right (and then the irreverent Trump presidency) have seized the humor initiative, by appearing more cool, avant-garde, and in general more fun-loving and unpredictable than the expected virtue signaling and various codes of self-affirmation emanating from the liberal weaklings.
3) Confederate monuments, sports team logos, the swastika, Klan robes, and cross-burning are some of the visual symbols that have become more, rather than less, charged in the thirty years since the latest incarnation of speech abridgement, by way of campus speech codes and the idealization of safe spaces, became visible. By excluding low degrees of racial speech from the elite spheres, a new, more porous, more clouded form of generalized racial violence has emerged, hinting possibly to an elite form of racial violence (such as in Stephen Miller’s ascendancy) to counter elite intolerance of verbal racism.
Critical Race Theory Adrift?
Just as Ta-Nahisi Coates describes in a popular vein in Between the World and Me (2015), so did four of the leading critical race theorists early on set out a paradigm of white supremacy, and the means to root it out, that may have made the prescription worse than the malady: in essence, white supremacy becomes so pervasive and inescapable that to fight it means to assail every standard and value, legal and moral, and therefore a crusade that transcends politics as usual.
Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberlé Williams Crenshaw (the last of whom is generally considered the initiator of intersectionalist theory in the early 1980s) describe, in Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993), a paradigm of racist speech and the means to root it out that rests not on any stable intellectual foundation but on the whims and political contingencies of the moment. Their founding assumptions—that “racism is endemic to American life,” that “dominant legal claims of neutrality, objectivity, color blindness, and meritocracy” empty racism of historical meaning, that “a contextual/historical analysis of…[current] law” must link it to earlier instances of intent, that the “experiential knowledge of people of color” must supersede any analytical framework, that the interdisciplinarity and eclecticism of critical race theory set it apart from previous methodologies, and that their aim is to eliminate “racial oppression as part of the broader goal of ending all forms of oppression,” all together outline an agenda so vast as to easily set aside puny considerations of First Amendment sanctity or other such legalistic hurdles.
In her contribution, “Public Response to Racist Speech: Considering the Victim’s Story,” Matsuda describes the “paradigm example” of racist speech to consist of these three elements: “1. The message is of racial inferiority. 2. The message is directed against a historically oppressed group. 3. The message is prosecutory, hateful, and degrading.” When it comes to constructing an alternative legal framework than that provided by the American constitution—or many centuries of Western jurisprudence—it seems to me that we are on very shaky grounds indeed. The alt-right might well deny that they propagate racial inferiority (only separatism), although of course we are to take their counterclaim with a grain of salt, but this is just to suggest how subjective any such measurement has to be. The alt-right might claim that Asian Americans, or other recently prosperous migrant groups, do not constitute historically oppressed groups; furthermore, Mexican Americans of recent vintage might not be able to claim oppression by modern American white supremacists per se, so where do the lines of historical oppression begin and end? Finally, if the message is not overtly violent (Heimbach and others in the current alt-right landscape have tried to be careful to disavow prompts to violence), then who is to define hateful and degrading? I find no way for Matsuda’s logic to free itself of all sorts of binds in which it finds itself, once we set upon this line of thinking.
A range of contingent exceptions and qualifications must be determined, but they will all be highly subjective, and prone to the investigator’s own bias. Matsuda claims that “satire and stereotyping that avoids persecutory language remains protected,” but the qualification about persecutory language, from this icon of critical race theory, gives me more pause about the safety of my mind and body than anything I’ve ever heard from the alt-right or avowed white supremacists. For who is to decide where persecutory language waxes and wanes? In the wake of the elimination of the alt-right, consistent attacks have been mounted against satirists for offending sentiments, disqualifying what to me seem to be legitimate satirical volleys.[vi] We are not a long way off from a theoretical banning of satire, except the kind that passes for political satire on television, which is effectively nothing but a tame reinforcement of liberal partisan prejudice.
Similarly, Matsuda says that “hateful verbal attacks upon dominant group members by victims is permissible.” This is precisely the attitude, starting from the 1990s onwards, that contributed in large part to the rise of the alt-right, and even of Trump, in the first place. Matsuda argues that we can “argue for censorship of racist hate messages without encouraging a revival of McCarthyism” because we know that slavery and racial supremacy are wrong, based on the fact that no nation in the world subscribes to it. Marxism, on the other hand, is not subject to censorship, because it is not universally condemned. To make decisions about censorship based on universal acceptance (or claims of such) seems to me to be flimsy grounds indeed.
In the same vein, while a white nationalist’s hate-filled art must be censored, Matsuda “would interpret an angry, hateful poem by a person from a historically subjugated group as a victim’s struggle for self-identity in response to racism.” This argument falls apart on its face, because the group cannot possibly circumscribe the individual realities of a protagonist: what about an Ivy League-educated Asian American on this spectrum of victimology? Does he or she belong, or would we have to investigate their financial status as a condition of acceptability of racism?
It falls apart even more. What about black anti-Semitism, which Matsuda calls “anti-Semitism and racism within subordinated communities”? If it comes “from an experience of oppression,” it’s okay, but if it uses “the language of persecution,” it is to be censored. One wonders about members of minority groups who subscribe to alt-right views; it would not exactly be uncommon, for example, to find Mexican Americans in sympathy to the alt-right’s views on immigration. What are we to do with them?
Predictably, when it comes to Zionism, Matsuda says that she rejects “the sweeping charge that Zionism is racism and argue[s] instead for a highly contextualized consideration of Zionist speech.” When it comes to one of the clearest examples of racism, Matsuda finds it politically convenient to reject it as racism, an insult compounded by Israel’s recent genocidal treatment of Palestinians, which would seem to meet any definition of racism: but perhaps not, since Israeli Jews could themselves make the claim of (having once been) a subordinated group. Try to parse this differentiation: “If Zionist expression of anger includes a statement of generic white supremacy and persecution, the speaker chooses to ally with a larger, historically dominant group, and the privilege should not apply. On the other hand, angry, survivalist expression, arising out of the Jewish experience of persecution and without resort to the rhetoric of generic white supremacy, is protected under the contextualized approach.” I’m forced to think of Alex Jones, whose conspiracist views stem from a survivalist rather than a white supremacist instinct, yet who has been suppressed.
Racism stemming from academics who are ignorant does not “deserve the dignity of an academic forum,” but racism “supported by evidence acceptable within the relevant discipline” does. When it comes to the “cold version of the classic forms of anti-Semitism,” all forms of anti-Semitic literature are to be censored, including “monetary conspiracy theories, the tales of mysterious cartels, and the revisionist histories distributed by anti-Semitic hate groups,” even if they are void of hate speech. Mark Twain is to be censored because of the “failure of school integration and the underrepresentation of African Americans in positions of authority in the schools,” but one wonders how Matsuda might have reacted to Twain a few decades ago, and if Twain is permissible within a group of African American students who are privileged?
ii Passed in 1990 and modified in 2009.
iii In the Chaplinsky case, the U.S. Supreme Court carved out a fighting words exception to the First Amendment, holding that words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace” are not constitutionally protected. In practice, as Jacobs and Potter note in Hate Crimes: Criminal Law and Identity Politics (Oxford, 1998), the Supreme Court has never held up a government case built on the fighting words doctrine.
iv Ibid., 113-121.
v Heimbach, Anglin, Spencer et al. openly cheered Trump during the election campaign and after his victory, claiming him as one of their own, a designation such groups don’t make lightly.
vi See, for instance, Kevin Kelly’s unforgiving assault on Louis C.K. for making fun of the Parkland high school activists (relying on the paternalistic argument that we must protect high school students’ frail sensibilities), in “Louis C.K.’s Leaked Comedy Set Panders to the Alt-Right,” The Daily Beast, December 31, 2018, where the facile linkage is made between taking on moral crusaders of the Parkland variety and affiliation with the general alt-right philosophy. The conflation between Louis C.K.’s offensive jokes and the alt-right (which used to mean Nazism revivified) is shocking but shouldn’t be surprising at all; already, the definition of the alt-right has been expanded to signify anything not in agreement with the reigning neoliberal pieties, and therefore all speech in opposition to this consensus is to be considered worthy of censorship. Consider also the recent deplatforming of African American comedian Kevin Hart and Indian American comedian Nimesh Patel for offensive jokes, in the former instance dating back to tweets from years ago: https://www.westernjournal.com/evan-berryhill-last-bastion-free-speech-attack/. and https://www.nytimes.com/2018/12/07/opinion/columbia-nimesh-patel-comedian-kicked-offstage.html.