Former ACLU president says censoring hate speech can backfire – just like it did in Nazi Germany

Left: Nadine Strossen (Anthony Alvarez) Right: Facebook CEO Mark Zuckerberg testifies at a joint hearing of the Senate Judiciary and Commerce committees on Capitol Hill on April 10, 2018. (Xinhua / Ting Shen via Getty Images)

(JTA) Facebook, Twitter and other social media platforms face increasing pressure to crack down against anti-Semitism and other forms of hate speech. This summer, the Anti-Defamation League and NAACP led a one-month corporate boycott against advertising on Facebook, and a group of British Jews led a 24-hour boycott of Twitter.

Nadine Strossen, the former head of the ACLU and a daughter of Holocaust survivors who is generally supportive of the ADL, believes such moves to censor hate speech are generally ill-advised.

In this wide-ranging conversation, the Jewish Telegraphic Agency spoke with Strossen, the John Marshall Harlan II Professor of Law, Emerita at New York Law School, about the best ways to counter hate speech, the limits and importance of free speech, new media, and more.

This conversation has been edited for length and clarity.

Jewish Telegraphic Agency: How would you personally define hate speech? 

Nadine Strossen: For starters, it’s really important to understand that there is no agreed upon legal definition of hate speech in the United States — the U.S. Supreme Court has consistently, unanimously refused to carve out an exception from free speech protections.

The label is usually used in everyday speech to refer to speech that conveys a hateful or discriminatory message, particularly about people who belong to racial, religious, sexual or other groups that have traditionally been marginalized and oppressed.

The classic example would be racist epithets, certainly anti-Semitic epithets. But it’s important to understand that people use that term very indiscriminately to refer to ideas that they personally hate, or political candidates that they personally hate. For example, Black Lives Matter activism is regularly denounced as hate speech. Advocating for the reelection of Donald Trump is also regularly denounced as hate speech.

In a conversation with Noah Feldman for his “Deep Background” podcast,  you mentioned the idea of an “emergency principle” being used to determine what the government can legally do to counter specific instances of discriminatory speech. Walk me through what this principle is, and what qualifies. 

The First Amendment protects us only against government restrictions on our speech. We have no free speech rights against Facebook or any private sector entity. There are a lot of people who are shocked to learn that!

However, this is not an all-or-nothing dichotomy: Hate speech is not either completely protected or completely unprotected. Rather, it’s much more complicated in a way that actually makes good sense.

The Supreme Court unanimously, for a long time, has held that the government may not outlaw any speech based solely on the disapproval of its content. No matter how much we hate the idea, and no matter how much we may vaguely fear that it might be dangerous in some way, that is never a justification for censoring it.

However, when you get beyond the content of the speech and look at the overall context in which it is expressed, then the Supreme Court has laid out what is often summarized as the emergency principle: If speech poses as a direct threat of imminent, specific and serious harm — in the particular context, facts and circumstances — then it may and should be punished.

And hate speech often satisfies that standard — not solely because you hate its ideas, but because in the context, it poses an emergency such that nothing short of suppression will avert the extremely likely imminent harm.

If it is a less tight and direct connection between the speech and some specific harm, then the court says you have to use non-censorial tactics, such as education and persuasion. You only use censorship as a last resort.

I can illustrate the differences with a concrete example that’s really salient to me as a Jew and to everybody who cares about equality. The horrific incidents in Charlottesville almost exactly three years ago, when the white supremacists were demonstrating there, voicing the most odious messages — “You will not replace us.” “Jews will not replace us.” “Blood and soil.” I mean, it just sends chills up and down my spine as the daughter of a Holocaust survivor.

But my organization, the ACLU, was absolutely correct in defending their free speech right to utter that odious message, and the federal judge was absolutely correct in upholding that right.

Neo-Nazis and white supremacists encircle counterprotesters at the base of a statue of Thomas Jefferson after marching through the University of Virginia campus with torches in Charlottesville, Va., Aug. 11, 2017 (Shay Horse/NurPhoto via Getty Images)

However, when they massed and confronted others in a threatening way, brandishing lighted torches and other weapons at counter demonstrators, not to mention actually engaging in physical attacks, that was across the line — and could and should have been punished consistent with the emergency principle.

Of course, the outright violence itself is punishable: Even simply marching en masse with lighted torches and other items that could be used as weapons, including firearms, is clearly punishable as what the Supreme Court has called a true threat — a specific type of speech that satisfies the general emergency principle; when the speaker is targeting a specific audience and means to instill a reasonable fear on the part of the audience member that they are going be subject to attack.

Even if the speaker doesn’t intend to actually carry out the attack, if the fear is objectively reasonable, that already causes harm. Because the person who’s targeted by a true threat is deterred from engaging in their free speech rights.

I would have been there counter-demonstrating if I had been in the vicinity. But seeing those people with their lighted torches… I prize my life as well as my liberty. I would have fled. So I would have been deprived of my free speech rights as well as my freedom of movement.

There was a nonpartisan report after the fact that was commissioned by the City Council in Charlottesville, and it strongly critiqued all the law enforcement officials for not having intervened and protected the counter-demonstrators at that point.

Is it common that the people actually responsible for maintaining law and order don’t understand nuances of free speech law and the limits of legitimate use of First Amendment rights to protest?

The vast majority of people — including all government officials, and all citizens, and all lawyers with too few exceptions — are completely ignorant of the proven principles of free speech law.

So in my most recent book, “Hate,” I quote a couple of examples. The mayor of Portland, Oregon, justified his decision to deny free speech rights in an open public forum to some right-wing speaker, and he publicly proclaimed “hate speech is not free speech.”

And other elected officials, including those who are lawyers, have made exactly the same ignorant statements. I assume that law enforcement officials are probably more trained than most people on what are the limits of free speech, and to what extent they should protect free speech.

But there’s either a lack of information or lack of willingness to honor the information about what rights are, and that’s why the ACLU and the National Lawyers Guild and others are constantly coming to the defense of the rights of protesters.

Speaking of Portland, Oregon, this summer, we’ve been very busy. And so far, to the best of my knowledge, we’ve won all of our court cases that have been brought on behalf of not only protesters but journalists and neutral observers, because they have not only been not allowed to continue their activities, but they’ve actually been subjected to physical force and violence by law enforcement at all levels. That’s a constant problem; there’s just too much ignorance in general about constitutional rights.

You’ve noted elsewhere that laws or private company policies designed to limit hate speech often end up being more often wielded against minority individuals. And it seems that this same phenomenon might also apply when we’re talking about restrictions on free speech that are perpetuated by law enforcement officials.

Is it something that you’ve seen historically?

Absolutely. Observation and international human rights organizations reveal that there is a pattern of disproportionately enforcing any restriction on speech, including hate speech restrictions which do exist in the laws of most other countries, disproportionately against speech by and on behalf of minority groups. This includes demographic minorities — racial, religious, ethnic minorities, and so forth, and political minorities like dissident protesters. And that is true regardless of who is doing the enforcement. Whether it is the government, a private university, or a private sector media company.

And the reason for it is really straightforward: We are talking about groups that are in a minority and therefore are never going to wield majoritarian political power.

One can’t forget that over time, in general, the powers that be are directly accountable to majoritarian interests or powerful business interests and are not going to be disposed to protect the speech of those who are members of minority groups and who are advocating minority causes.

Civil rights and Union leaders — including Cleveland Robinson, James Baldwin, Bayard Rustin, A. Phillip Randolph John Lewis, Dr. Martin Luther King, Jr., Coretta Scott King, Juanita Abernathy, Rev. Ralph Abernathy, and Rev. Fred Shuttlesworth — sing ‘We Shall Overcome” at the conclusion of the Selma to Montgomery civil rights march on March 25, 1965 in Montgomery, Alabama. (Stephen F. Somerstein/Getty Images)

For that reason, many minority group organizations throughout U.S. history have, to the best of my knowledge, all opposed censorship — including hate speech laws, even when those laws are allegedly designed to benefit their interests.

Leaders of the civil rights movement in the United States always opposed censorship and always supported free speech very vigorously. That message came loud and clear to me during the recent funeral observations for John Lewis.

He was such a proponent of free speech, such an eloquent one. I included one of his famous lines in my book: “Without robust freedom of speech and dissent, the civil rights movement would have been a bird without wings.”

And Martin Luther King’s very last speech was all about freedom of speech and how censorship had been used to try to thwart the civil rights movement.

The ADL, which was started to protect minority rights and to counter anti-Semitism, is encouraging private companies to crack down on free speech. What do you make of this impulse? Will it backfire?

I actually have close colleagues and friends within the ADL with whom I’ve had the privilege of working very closely. To my knowledge, the ADL — with only one exception — has always opposed any government censorship of anti-Semitic speech or any other hate speech.

And many people don’t realize that, because the one exception was one that was very well publicized — that infamous Skokie case in 1977 and 1978. The ACLU defended the free speech rights of Neo-Nazis to demonstrate in this city that had a large population of Jews, including many Holocaust survivors.

The ADL was on the other side in that case, but to the very best of my knowledge, that was the first and last time that they took that position.

And when the internet was new, I spoke on an ADL forum in which they were opposing any government censorship of the internet, including of hate speech, and were instead advocating harnessing the power of the internet to engage in what’s often called counter speech: If somebody is looking for, for example, a Holocaust denial site, you would reroute him to the Simon Wiesenthal Center and bombard him with information about how the Holocaust did in fact happen.

Perhaps the huge dominance of social media as such an overwhelmingly important platform from which people are getting information and ideas brought about the change.

To the ADL’s credit, as far as I can observe, they are not in one iota reducing their very strong drive for counter speech. I cite them and the Southern Poverty Law Center every time I talk about these issues, because they both put out fantastic educational resources, all available online, for schools and for others, which I think — and I assume they think — is an even more effective way to deal with the inevitable hate speech that is going to continue.

I think it’s futile, ultimately, to try to drive hate out of these forums. The companies are dealing at such scale. I don’t think anybody believes that all anti-Semitic speech is going to be taken down from Facebook.

Nobody expects that these problems are going to go away. I think they just assume, well, private censorship of hate speech does more good than harm, and so it’s worth pursuing. But I have the opposite calculus, and I wish that we would focus more efforts on information — affirmative information, education and media illiteracy, because people are always going to be exposed to hateful, misleading,  potentially dangerous, potentially upsetting and traumatizing speech. And so we have to prepare people to deal with that.

The other thing that I’ve been very, very concerned about is that it’s very clear that social media companies are using algorithms to manipulate what various users see. And there are complaints that they are amplifying hate speech! Amplifying disinformation! Why? Because that gets more attention and makes more money for them, right?

It’s one thing to say that we shouldn’t force them to censor. But I think it’s another thing to say that they shouldn’t be increasing the spread of hate speech, especially when they’re getting all this PR benefit from bragging about how they’re trying to remove hate speech.

We should maximize informed freedom of choice for end users. And to the extent that we are being unwittingly, unknowingly and without information — let alone consent — being manipulated by algorithms, in terms of what we see what we don’t see, I consider that to be a deep violation not only of individual privacy, but also the individual freedom of thought and expression.

To me, requiring transparency and accountability and user control of the information feeds that we’re getting from these platforms would be a much more fruitful direction for regulation.

It seems to me, just looking at the scale of some of these social media companies, that they’re basically quasi-countries that aren’t held to the same rules that advanced countries are.

These companies are the worst of both worlds: They exercise full censorial power. From its public reports, each month, Facebook claims it is taking down more alleged hate speech messages than all governments added up together all around the world throughout history. They’re taking down hundreds and hundreds of thousands of posts, a huge percentage of which are subject to appeal.

So on one hand, they have this enormous power, but on the other hand, they’re not subject to any of the constitutional constraints that restrain government power. Not only are they not subject to the First Amendment itself, but they’re not subject to any kind of due process. They don’t have to give us notice of what their roles are. They don’t have to give us an opportunity to argue against being removed from the platform or having a particular message removed.

They’re not accountable, ultimately, to We the People the way the government is. So it’s a terrible combination of power without democratic restraints. And that power really can have an enormous adverse impact, not only on your individual wellbeing, but also on our democratic republic.

While I certainly support their free speech rights, and I think it does more harm than good to pressure them to engage in censoring disinformation or hate speech, I still am very, very concerned about taking other steps to restrain their power consistent with democratic principles.

For example, the European Union has very strongly protected data privacy. That, I think, is something that is positive from a user’s perspective — and it’s too bad that we have much less strong protection for data privacy and surveillance in this country.

In your interview with Noah Feldman, you mentioned that during the Weimar Republic, there were actually very strict hate speech laws that were then used as Nazi propaganda tactics. Can you say a bit more about how that played out? Was there not a conscious realization in the body politic that maybe the more you crack down, the worse these things are? 

A front page of the notorious Jew-baiting paper ‘Der Sturmer’ at the Wiener Library in London. The library was founded by Dr Alfred Wiener during the war as a weapon against Hitler, March 1957. (Ron Burton/Keystone/Getty Images)

No, I don’t think there was that realization at all, and in fact, there isn’t today.

I did a debate about a year ago with what I think of as the online censorship czar for the EU, Věra Jourová. And she cheerfully agreed with me that laws such as the German internet law were coinciding with an alarming rise in the strength of the AFD, an expressly racist party in Germany, and with a rise in hate crimes in Germany, including against Jews and other minorities.

My conclusion from that is that these laws are at best ineffective and at worst counterproductive.

And her conclusion is, we need even more laws! And we need to make them even tougher! We need to restrict and enforce them even more strictly!

So I think there’s just a basic philosophical disagreement and no amount of empirical observation is going to nudge people one way or the other.

But people have often said to me, “Oh, the Holocaust wouldn’t have happened if only Germany had enforced laws against all anti-Semitic expression” without realizing that the laws that were in place in Germany then were every bit as strict as German laws now, which are the strongest in the world with the possible exception of many countries in the Middle East, and were very strictly enforced.

There were dozens of prosecutions, including successful prosecutions, against Nazis — including Julius Streicher, the publisher of Der Sturmer. And it just became a propaganda platform for the Nazis. It got all kinds of attention they otherwise would not have received, and sympathy they otherwise would not have received.

And we see the same tactic in the United States. I don’t want to overemphasize the comparison to the Nazis, but today’s white supremacists court tactics such as being shouted down or being deplatformed precisely because it garners attention.

The Southern Poverty Law Center did a fabulous pamphlet for students as it was becoming clear that so many white supremacist organizations were planning to organize on campus. And they said to the students, look, we know it can feel very morally satisfying to try to shut them down, but you’re just playing into their hands. Please do not do that. It is strategically and tactically unwise.

When we’re dealing with someone who is a master of reframing hateful arguments so that they seem more palatable, there’s often an insidious slow mainstreaming of their ideas into media entertainment. Is engaging with hateful ideas any less harmful than outright protesting the speech?  

As somebody who’s always wrestling with what is the least bad response,  I think what you are pointing out, among other things, is that even speech that does not satisfy the emergency principle can do an enormous amount of harm.

Many, many analysts say that it’s that more subtle drift, as you say, the mainstreaming that does the most harm. I mean, you used that great word insidious, right? I don’t think horrible racist chants persuade anybody! It just persuades people that there’s a real serious problem here and a lot of anti-racist activism all over the country.

But the more subtle stuff is more pernicious precisely because it’s sugarcoated and people may not realize what they’re buying into. And we could never censor all of that speech without completely ending our democracy.

I spoke in a media ethics course in which they were debating to what extent you have a responsibility to cover this garbage. Because you want people to be aware of it. You don’t want to whitewash it.

But on the other hand, if you do that, you have a very severe danger of glorifying it and amplifying it. So it’s a really difficult question to which there is no perfect answer. And certainly prohibiting that kind of coverage would be unthinkable in terms of freedom of speech and freedom of the press and democratic principles.

We’re never going to eradicate the dangerous speech. We have to take it as a given. And we have to equip members of our society to encounter it, and deal with it, and resist it in affirmative ways.

Building resilience, building their own research capabilities, building their own ability to not be insulted but rather to look down on the people who are trying to insult them; building a sensibility of coming to support anybody else who was denigrated, proactively educating people in ways so they will be resistant to this kind of propaganda and attentive to it and refute it, these are all important steps.

Are attempts to get someone “canceled” any more effective at actually stopping these sort of hateful ideas from metastasizing? Or does this also fuel the intended targets? 

I very, very strongly oppose cancel culture. But cancel culture itself is an exercise of free speech.

Now, where does even the most vigorous robust criticism of hateful ideas and counter speech end and inappropriate cancel culture bullying intimidation begin? I think the basic distinction is that robust, even highly critical, defamatory freedom of speech seeks to prolong the debate to engage the person whose ideas you dislike, whereas cancel culture seeks to end the debate and intends to use not analysis or evidence or reasoning, but conclusory epithets — that the idea or person is racist — and seeks not only to end the debate but to end the speaker’s participation in the debate.

I love the term “historic humility” that you used in an interview when discussing our misunderstanding of social media’s power. Is there anything truly different about social media’s ability to perpetuate terribly hateful and harmful ideas?

I use that phrase constantly. And I also use a counterpart phrase, “historical hubris.” On issue after issue, we have historical hubris.

And I’ve heard the purported dangers about every new medium that’s come to my attention, starting with cable television, talk radio, video games and then the internet.

Every single one brought on this notion of, “never before has a medium reached so many, including so many children, and those are going to be especially vulnerable!”

The same thing was encountered with the invention of the radio or the telephone, in the 20th century, not to mention the printing press.

If you look back at all of the attempts to censor other media when they were seen as being equally dangerous in their heyday, we now look back and say, well, that was completely wrong. The censorship did more harm than good.

And I think the same thing happened with the web. So far,  there has not been direct government censorship of social media. But there has been this enormous pressure from politicians and citizens to pressure social media to engage in more censorship.

Those of us who are trying to exert counter-pressure are a small minority, unfortunately.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of the AJP or its publisher, the Jewish Federation of Southern Arizona.