Vol. 6, No. 1 (January,1996) pp. 27-30

GROUP DEFAMATION AND FREEDOM OF SPEECH edited by Monroe H. Freedman and Eric M. Freedman. Westport: Greenwood Press, 1995. 367pp.

Reviewed by Gordon Silverstein (Dartmouth College)

Free speech and a commitment to equal treatment are deeply embedded values in the American political culture. These are not purely utilitarian commitments -- Americans believe in free speech and equality as ends in themselves as well as means to other ends. It is unsurprising, therefore, that when these values bump into each other, confusion and confrontation blossom. Monroe H. Freedman and Eric M. Freedman's edited volume dealing with the relationship between free speech and what we have come to call hate speech addresses an important topic, and though uneven, a number of the chapters help clarify the debate and move us toward asking the right questions about the effort to preserve a commitment to free speech while addressing the legitimate concerns of those subjected to group defamation.

The book starts out with some fairly reasonable, but largely unsupported assumptions. "We know," the editors write, "that language itself can hurt, that there are words that, by their very utterance, inflict injury. Language can demean one's sense of dignity. Language can induce insecurity and fear. Language can cause palpable physical reactions. When the message is violent, language can itself be a form of violence." (p ix) For most of the contributors to this volume, these assertions need no support. For some, these assertions are more than enough to justify speech codes and anti-defamation statutes that would profoundly restructure our current conception of free speech. They may well be right, but a clear chapter laying out the empirical support for these assertions would have been a welcome addition.

One virtue of an edited volume such as this is that it can provide an opportunity to get different authors to address different parts of a large problem. In the end, the book as a whole addresses the full dimensions of the problem, while the individual pieces do not. That is a perfectly reasonable strategy, but not wholly successful in this case.

The first step might have been a section establishing the link between defamation and damage. While this may be generally accepted, a chapter detailing the empirical evidence would have been welcome. Instead, the book leaps into a section detailing the experiences various groups in the United States have had with racist speech and defamation.

Here Kenneth Clark cogently reviews the experience of African-Americans and Laurence Hauptman outlines and brings to life ways in which Native-Americans have been subjected to a racist and even genocidal agenda in the United States. This section also includes a chapter by Michael Blain, who tries to show just how and when and why language paved the way for people to do the unthinkable in the Nazi Holocaust. Blain, together with Hauptman and Clark as well as John Dower, who contributed a well written chapter on race, language and the

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Second World War in Asia, all focus on exploring the impact defamation has on different groups. But these chapters share the flaw of not addressing just how we might address this problem -- the logistics of restricting defamatory speech. And, perhaps more importantly, none directly addressed the tradeoffs required by any legislative effort to restrict group defamation, particularly the costs such restrictions might impose on the very groups upon whom these authors focus.

After the section dealing with group defamation and oppression, one might well expect a section dealing with free speech and its role in ending oppression, to set up the two sides of the debate. Instead, the volume next turns to the essential question of the link between language and violence. While the two chapters in this section present very interesting arguments and insights, neither clearly establishes this vital link. Are there clear, empirical links between language and violence? If it can be established that such links exist, that they are clear and strong, certainly the reader will be prepared to consider the need to make tradeoffs between two values -- free speech and the assurance of the physical and psychological health and safety of every member of society. If, however, no such link can be established, then no tradeoffs need be made.

Laraine R. Fergenson's chapter in this section addresses the process by which group defamation moves from language to thought and belief, and then to action. Weaving together a well-written review of the literature, Fergenson offers a cogent and persuasive argument that language leads to belief and belief to action. But her study of the Nazi Holocaust is somewhat problematic: Unlike the modern American case, the Nazi experience was one in which the government not only tolerated hate speech, but generated it, shaped it, and enforced it. Certainly one comes away from this chapter convinced of the link between state sponsored hate and state-sponsored violence, but with very little insight into the role of defamation when the state tolerates hate, or when the state allows hate speech, but counters it with its own message. The other chapter in
this section, by Mari J. Matsuda, argues that if we view racial hate messages from the perspective of an outsider, what Matsuda calls "outsider jurisprudence," we should come to appreciate that state tolerance, enforced by law, is not such a far cry from state enforced hate as some might think. This is a provocative argument, but in the limited forum of a chapter in an edited volume it is an assertion and argument and not a clear presentation of persuasive evidence.

The book would have been well served by pursuing these issues in further chapters in this section, but instead it leaves the issue at this point and turns to a comparative and international focus. The chapters which follow deal with group defamation and international law (by Louis Henkin); racial defamation and speech in Australia (by David Partlett); racial incitement in Israel (by David Kretzmer) and an essay by Robert Martin on Group Defamation in Canada.

After a solid review of international

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provisions dealing with group defamation in the Henkin chapter, each of the others uses the lens of other countries to give new insight into the dilemma of the conflict between speech and protection against group defamation. One of David Partlett's concluding suggestions would give courts greater discretion in evaluating when material crosses the line from tolerable speech into intolerable defamation. This of course leaves the question of what will limit judicial discretion, and why we should be more comfortable giving this discretion to unelected judges than we are in giving it to elected legislators.

Partlett, Kretzmer and Robert Martin all focus on the importance of political culture in determining where the line should be drawn between free speech and illegal defamation. As Martin concludes his study of defamation in Canada, "Canadians value freedom of expression, but they value it concretely." Unlike the United States, he argues "Our constitutional history has not been characterized by a rhetorical clinging to abstract notions of individualism" (p 213). In the end, he argues that legislation to restrict defamation "as various and unclear as it may be, is consistent with our traditions" (p 213). This may be true but it raises two important questions about this section of the book. First, if these efforts are culturally specific, then turning to a comparative analysis may not be particularly helpful in working through the American dilemma. Second, while some cultures may well support this sort of legislation, can or does this sort of legislation offer any hope of achieving its objective? Are groups that suffer from defamation better off with such laws, or are they better served by what Lee Bollinger in a later chapter (and in his own 1986 book) calls a "tolerant society "?

At this point the book turns to considerations of the American First Amendment. This section leads off with a very valuable reprint of parts of the Supreme Court's decisions in R.A. V. V. ST. PAUL and WISCONSIN V. MITCHELL. Reprinting these cases is a terrific idea, since many of the authors make frequent reference to these cases. Having them handy allows the reader to consider the original source in evaluating the analysis of the contributors. This section then offers four chapters: Lee C. Bollinger on "Rethinking Group Libel"; Catharine A. MacKinnon on "Pornography as Defamation and Discrimination"; Kenneth Lasson on hate speech and the First Amendment and Leon Friedman on freedom of speech and whether it should be available to pornographers, Nazis and the Klan.

Bollinger persuasively argues that speech can be bad behavior, and therefore regulable, but that doesn't necessarily mean that this is the best approach to take. Bollinger finally forces the discussion back to the merits. What is the purpose of the First Amendment? And, for that matter, what is the purpose of protected rights? Do statutes against group defamation contribute to these purposes or detract from them? Bollinger asks us to consider society's reaction to hate speech, and argues that this reaction matters. Which sends the more important signal -- tolerating the speech you hate, while condemning it and any actions that grow from it, or trying (and probably

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failing) to squelch that speech? Bollinger asks us to consider the social value of the reaction to bad acts as well as to injurious speech. There is, Bollinger argues, "a real social value that can be derived from tolerating extremist speech" (p 248).

In a final section, the book reprints the results of a student contest to draft a model group defamation statute. The top three entries are reprinted, and along with a moot court opinion (and dissent) written by the book's editors in a case based on the winning entry in this contest. While this section is an interesting exercise, it seems to confirm that the conference upon which this book was based really built on the assumption that there is a conflict between defamation and free speech, and that the solution is to curb free speech. The question most of the book addresses, then, is how to do this. There are a number of provocative, thoughtful essays in this volume, and it addresses an important topic in a serious way. While it may not be as comprehensive as some might like, it certainly provides a very useful starting point in a vital debate.