Free Speech Isn't Free – Garrett Epps – The Atlantic

A system that tolerates "hate speech" is probably superior to the alternatives, but defenders of an absolute right can't pretend no one gets hurt.

Millions of Americans support free speech. They firmly believe that we are the only country to have free speech, and that anyone who even questions free speech had damn well better shut the #$%& up.

Case in point: In a recent essay in The Daily Beast, Fordham Law Professor Thane Rosenbaum notes that European countries and Israel outlaw certain kinds of speechNazi symbols, anti-Semitic slurs, and Holocaust denial, and speech that incites hatred on the basis of race, religion, and so forth. The American law of free speech, he argues, assumes that the only function of law is to protect people against physical harm; it tolerates unlimited emotional harm. Rosenbaum cites recent studies (regrettably, without links) that show that "emotional harm is equal in intensity to that experienced by the body, and is even more long-lasting and traumatic." Thus, the victims of hate speech, he argues, suffer as much as or more than victims of hate crime. "Why should speech be exempt from public welfare concerns when its social costs can be even more injurious [than that of physical injury]?"

I believestronglyin the free-speech system we have. But most of the responses to Rosenbaum leave me uneasy. I think defenders of free speech need to face two facts: First, the American system of free speech is not the only one; most advanced democracies maintain relatively open societies under a different set of rules. Second, our system isn't cost-free. Repressing speech has costs, but so does allowing it. The only mature way to judge the system is to look at both sides of the ledger.

Jonathan Rauch: The Case for Hate Speech

Most journalistic defenses of free speech take the form of "shut up and speak freely." The Beast itself provides Exhibit A: Cultural news editor Michael Moynihan announced that "we're one of the few countries in the Western world that takes freedom of speech seriously," and indignantly defended it against "those who pretend to be worried about trampling innocents in a crowded theater but are more interested in trampling your right to say whatever you damn well please." To Moynihan, Rosenbaum could not possibly be sincere or principled; he is just a would-be tyrant. The arguments about harm were "thin gruel"not even worth answering. Moynihan's response isn't really an argument; it's a defense of privilege, like a Big Tobacco paean to the right to smoke in public.

In contrast to this standard-issue tantrum is a genuinely thoughtful and appropriate response from Jonathan Rauch at The Volokh Conspiracy, now a part of the Washington Post's web empire. Rauch responds that

painful though hate speech may be for individual members of minorities or other targeted groups, its toleration is to their great collective benefit, because in a climate of free intellectual exchange hateful and bigoted ideas are refuted and discredited, not merely suppressed .... That is how we gay folks achieved the stunning gains we've made in America: by arguing toward truth.

I think he's right. But the argument isn't complete without conceding something most speech advocates don't like to admit:

Free speech does do harm.

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Free Speech Isn't Free - Garrett Epps - The Atlantic