Submitted by Jim Aune on August 3, 2012 - 1:45pm
Waldron Discussion, : Chapters 5 and 6
1. Do you buy the distinction between “indignity” and “offense”? “Indignity” is not a psychological state but rather an assault on a group’s status as “anyone’s equal in the community they inhabit, to their entitlement to basic justice, and to the fundamentals of their reputation” (106).
2. Note the nod to the distinction between civil law jurisdictions and common law jurisdictions on p. 115—the difference being in the care giving to “nuanced drafting and careful administration” in civil law jurisdictions that also have a highly professionalized, supposedly apolitical civil service system.
3. What about the line between attacking religious beliefs and group dignity? Can we imagine a ridicule of Tea Partiers (p. 121) that would cross the line? (Howard Dean’s “God, guns, and gays,” for example?). How do you interpret his account of the Danish cartoon controversy (125-6)?
4. Waldron’s critique (which I find muddled) of identity politics on 131-6 is an interesting move.
5. Theories of dignity:
a. Kant on dignity and mental capacity/autonomy
b. The RC Church on creation in the image of the Almighty
c. Ronald Dworkin on the responsibility we must take for our own lives
d. But Waldron does not want to enshrine the concept as a “right” but rather as a starting point for reconstructing the connection between legal and political philosophy (his lifelong project)
6. A counter-argument: what about “love speech” (I forget who coined this term), in which white/European nationalists (especially the French Nouvelle Droite—Alain de Benoist, especially—and the Popular Front or the League of the South in the US) deny any racism or anti-semitism but rather “love for the white European peoples”?
7. It strikes me again that what Waldron lacks is a robust theory of language, symbols, and communication. What if we instead start this discussion by interrogating the contrast between Bourdieu’s notion of “symbolic violence” and Collins’s notion of “situational violence”?
Chapter 6: On C. Edwin Baker’s Absolutism Grounded in Individual Autonomy
1. Waldron again resorts to namecalling instead of argument: “the self-congratulatory evasions and platitudes that reinforce” “free-speech orthodoxy” (148). He explicitly eschews discussion of American 1st Amendment jurisprudence which he proclaims (without evidence) to be “mostly a tangled mess” (152). (I think religion clause jurisprudence is a tangled mess, free speech jurisprudence not so much since it has broad consensus across ideological lines.)
2. Hate speech regulation would improve public debate, in part by not dissuading vulnerable groups from participating in public life (154-55).
3. Rights as trumps (Dworkin’s most important contribution): we normally base policy decisions on utility grounds, except in cases where rights are invaded (in which case they trump utility). So, if free speech has a special kind of importance for individuals than it must be protected even against the risk of dignitary harm. Baker is the most persuasive form of this view. (Baker is also I think the most important legal theorist of media regulation.)
4. For Baker, at the core of free speech as a fundamental right is to disclose my values in a world of other value-disclosers—it is interactive by nature. Note on pp. 168-9 Baker’s use of what we in free speech in COMM call the “Frank Haiman topos”—the idea that the listener ultimately determines the response to a message.
5. Waldron responds by distinguishing between harms caused by speech and harms CONSTITUTED by speech.
6. Other thoughts: One can justify free speech absolutism in TWO ways (see my NCA “card call” lecture on the topic on the NCA website): via rights arguments or by utility arguments. Even if I grant no formal right to “hate speech” on “rights” grounds, it remains unclear still what the evidence is that they work, and, given comparative racial/ethnic tensions in Europe one could speculate that they might even be counterproductive.