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Season 3, Episode 3: No OffenseFull TranscriptBarry: Before we get started, a disclaimer. This episode is about hate speech. So there's mentions of it, discussions of it, even uses of it. Listener discretion is advised.Barry: Baba Deep Singh is a legendary warrior in Sikh history. The Sikhs, you might know, are a religious minority originating in India. They've faced centuries of persecution, and out of that persecution grew a warrior class called the Khalsa. In 1757, Afghan conquerors ordered the desecration of the holiest Sikh site, the Golden Temple. At this point, Baba Deep Singh was seventy-five years old, and already a decorated veteran of clashes between Sikhs and outside forces. The legend goes that Baba deep led a platoon of Sikh fighters to confront the invading Afghan force that was four times its size. During the battle, a famous Afghan general took his sword and sliced through Baba Deep Singh's neck, decapitating him. Still, Baba Deep wasn't done. He picked up his severed head with his left hand and continued wielding his sword with his right. The enemy retreated, frightened at the sight of a decapitated man fighting with such ferocity. Baba Deep Singh wrote back to the Golden Temple, where he dropped his head and body, and finally died. To this day, the site of his death is memorialized on the path to the temple. The story of his life and death is a lesson in perseverance in the face of injustice and of living a life of dignity. The Golden Temple is in Punjab, the region in northern India and parts of modern-day Pakistan where Sikhism was founded and where million of its adherents still live. It's also where the subject of our story today is from.Sonny: I was born in a Punjabi Sikh family. We are proud people, as they call it a martial race, warriors in history. Barry: This is Sonny.Tape: Sonny: My real name is Sandeep Singh Sidhu.Barry: Sonny is a Punjabi interpreter. Mostly he works with local police departments. Sonny: I don't have any big achievements in my life, but yeah yeah and for somebody to make a difference. Barry: Sonny's story is pretty mundane. It isn't going to be legendary, but it's still going to occupy a small corner in the historical record. It all started when Sonny was a young man, a new immigrant, and he met a girl named Diane. Sonny: Diane and me were together for three years. The family was all right. The family had looked after me. Barry: Diane had a brother, Jim. The family was Greek and Jim owned a fish and chip shop that Diane worked at on and off.Sonny: Jim had an issue with me because of my ethnicity. Maybe he didn't like me dating his sister, I don't know what. MusicSonny: The race bit started when there was this football game going on on TV. One of the players, Ben Barber, well, he was brown. He looked like my type. They called him a monkey. I just looked at him like 'Excuse me?' and 'What, he's a monkey mate.' Once he called me a coconut and then another time I heard him use the n-word for someone. [Music] Barry: Still, Sonny hung around the family, because he liked the rest of them. He played with Jim's kids, he ran errands for Jim, he even helped out at the fish-and-chip shop. But, the harassment came to a head, and Diane chose to stick by Sonny.Sonny: And then I had stopped going to his places at all, like his shop. My ex had her own place, that's what I was staying. I would keep to myself, not go to his job and start whatever. This particular day, I'm minding my own business at Diane's home while she's overseas. Comes outside the gate, toots the horn, and I'm like 'Oh F.' So what still like isn't go out and stuff. I have a hoodie on. It's like, days like these it's pretty cold. And he goes to me, 'Hey you look like a nigger.' And I'm still smiling. I didn't respond to it but I'm smiling, like just to keep things pleasant. He has his young daughter with him, and she is smiling too, kinda. I didn't respond, I'm just standing there, then he says another something which is on the same tone. I didn't respond, and then again he said something so maybe tired of first time I said, 'Don't you think that's offensive?' He then goes on his rant about 'Oh, nah nah nah nah, nigger nigger nigger nigger nigger, you offended? You fuckin' offended? What do you think? What are you gonna do?' and stuff like that. I looked at him and I just shook my head and I said 'Fuck off' under my breath, and went inside the home. While I'm walking away, then he goes again, 'You fuck off.' Went into the house and closed the door.[Music] The place where I come from you don't go to somebody's home and you try to insult the guy to his face. You might get a bullet in your head for that. So I just was really upset, really offended. I called the police and I've tried to find out 'So hey, what are my rights here?' They say 'Well, you know, he has the freedom of speech IBarry: The police told you that?Sonny: The police told me that no offense has been committed and stuff. No offense was committed. What about my right to respect? The justice system is created so people can live in harmony right? What do you want me to do, pick up a gun and go shoot the guy? Get an axe, chop the guy off? Because I am offended. [Music] Sonny: The police actually went to him the next day and told Jim [surname censored] just to be careful of me. He actually took out an AVO on me. Barry: Could you tell me what an AVO is?Sonny: Apprehended violence order. So his grounds was that I had threatened to cause harm to him when I had made the phone call to the police. If I had a gun that night I wouldn't have hesitated for a single second. I would have put a bullet in his head straight away, maximum damage to him. This is how I feel about it. This is when somebody like brazen tries to walk over me. I would want to kill a person. Trying to preserve my human dignity. I don't want to be told like this that I'm second to no one. Barry: It's a thought that--Sonny: I could have, I mean, like when push comes to shove, people act on those thoughts. I could have done that. I couldn't get a gun but I caught the next best thing that I could get. I had an axe ready with me. If he wanted to come and call me a nigger again, I would have killed him. He's impinging upon my right to respect. I wouldn't take it. Barry: Right, and you're saying that the right set of laws would have prevented your need to feel that way. Is that what you're trying to say?Sonny: Well, maybe if there is some redressal available to me, I don't have to be a vigilante, right?MusicBarry: It's interesting that threatening violence is a crime warranting police intervention, but a racist slur isn't. It's interesting because threats are speech too. They aren't literally violent any more than an epithet is, if what you mean by violence is a physical assault. I suppose you could say that threats lead more to violence than racist epithets, but is that even true? Like, what are the stats supporting that claim? Threats of speech are supposed to induce a fear of injury. So when threats are criminalized, it's saying that the fear of injury is so bad, that law enforcement is supposed to protect people from it. If you're the victim of a racist epithet, though, the result isn't fear of injury. It's actually injurious. That's the point of insults, generally. Their aim is to injure. The law makes it sound like fear of physical injury is much worse than the actual injury that results from racial epithets. If there's a reason for that, it certainly doesn't come from psychological research comparing the harm of fear with the harm of racial epithets. The results of both are pretty well-documented to be equally ugly. No, the reason for the difference is that we happen to have free speech protections in this country, and injuries from hate speech are supposed to be an acceptable side effect, the cost of having free speech. But Sonny doesn't live in America. None of this happened in the U.S. It happened in Australia.Tom: I'm Tim Soutphommasane, and I'm Race Discrimination Commissioner at the Australian Human Rights Commission, which is Australia's National Human Rights watchdog. So the Racial Discrimination Act has existed in Australia since 1975. In many ways, it's Australia's version of the Civil Rights Act of 1964 in the US. But for the first twenty years of its operation, the law was silent on acts of racial abuse or harassment. So it outlawed discrimination in employment and in the provision of goods and services, but if people received racial abuse or harassment on the street, they couldn't turn to the legislation to take any action. So that changed in 1995. So, under the law, anything that is reasonably likely to offend, insult, humiliate, or intimidate someone or a group of people because of their race is prohibited. Barry: This is known as section 18-C. Agency is part of federal law, not state law. And it's a civil issue, not a criminal one. What this means is that the police can't do anything for you. You have to take someone to federal court for violating your civil rights. so here's a country, quite different from our own, where it's possible to sue someone for calling you the n-word. And that is exactly what Sonny did.Sonny: I went on and hired a lawyer. It took about a year. MusicBarry: Here's the process. You take a complaint against someone to the Australian Human Rights Commission. The Commission calls the other party, gets both sides of the story, and brings them together to try to adjudicate. They try to get an apology or some compensation. Only when all of that fails do things end up in a federal court. Soutphommasane: It happens very rarely. There'd only be two or three percent of complaints which end up in court. Barry: when you say two to three percent, two to three percent of what? Can you give me some ballpark numbers about total complaints? Soutphommasane: Numbers fluctuate from year to year, but in general we'd be talking between about 120-170 complaints of racial hatred every year. Barry: To give you some context, the population of Australia is about the population of the state of Texas, about twenty-six million. And it's about seventy percent white, thirty percent non-white. So annually the cases that go to court are about a handful, three or four.Sonny: I just wanted this to end. I just wanted an apology, to tell you the truth. I just wanted this guy to mend his ways. Soutphommasane: Subjective experiences of harm under Australian law do not determine that the law has been breached. Barry: The first thing the judge looks for is whether it occurred in public or private. Only public acts of racial abuse violate the law. Then the judge has to figure out who to believe. Sonny claimed two instances of racial abuse in court. The first is when Jim called him a coconut. The second was the incident with the n-word. MusicIt's not enough that Sonny was offended. The judge had to find that any reasonable person of Indian descent would be offended in the same circumstances. It's interesting here because the judge ruled with Sonny on the use of the n-word, but against him on the word coconut. The judge actually described what he did. He looked up coconut in three different English dictionaries, and then looked up websites that described racial insults in Australia. He found that 'coconut' was sometimes used to say that someone was brown on the outside and white on the inside, like saying a brown person is betraying their heritage. Then he found that coconut was a slur against Aboriginal people, but not South Asians or Indians. He also found that sometimes white people call each other 'coconut.' So on that basis, the judge ruled that a reasonable objective person of Indian descent isn't likely to be offended by the word 'coconut.' On the other hand, the judge had no problems ruling that the n-word was likely to offend a reasonable objective South Asian, though he also had to quote a few dictionaries to support that. What was left then was whether the effect of the slur was quote "serious and profound." Sonny: But one year I was under so much of stress. Physically it was telling on me, mentally it was telling on me. I had a condition at that time whereby my immunity was attacking my own body, and that caught worse.Barry: And finally, was the use of the word covered by the laws free speech provision? Soutphommasane: So this is section 18-D. 18-D protects anything that's artistic-- work, public discussion, or anything that's a fair comment or fair reporting on a matter of public interest is exempt provided it is done reasonably and in good faith. So, what you have in the law as it currently stands is a balancing between two different freedoms: a freedom from racial discrimination and hatred, and a freedom of expression on the other hand. Barry: The judge did not find any artistic or public policy merit in Jim's use of the n-word, and ruled that the effects the speech had on Sonny were serious enough to warrant a judgment in his favor. So Sonny won the case. He got $2000 from Jim.Tape: Barry: Did he pay the two grand?Sonny: Yeah he paid the two thousand. He made the court case and stuff. I was hell-bent on getting that money at that time.MusicBarry: But more importantly, the judge wrote that Sony's case occupied quote "The lowest end of the range of conduct which might attract the language of the law." It was the first case in Australia where the court ruled against someone for a single use of a racial slur in a confrontation on the street between two people, thus setting a precedent for the future. Soutphommasane: Now Australia has a different tradition around free speech. When compared to America, we don't have anything equivalent to the First Amendment. Freedom of speech is not an unqualified or absolute freedom. It is subject to all manner of restrictions and in that way, the way that the Australian parliament has legislated on these matters has been to conduct a balancing act between different freedoms that may be in competition. MusicWe have had extensive debate about these laws over the past four or five years, but every significant opinion poll that's been conducted has shown a clear majority of Australians backed the status quo. Seventy-eight percent of a nationally representative sample said that they believe it should remain unlawful to offend, insult, humiliate or intimidate someone because of their race.[Music] Barry: In my country, hate speech is protected. Sonny: What does that mean?Barry: It means that there is absolutely no legal action anybody can take for just speech. Sonny: What if like, somebody called another person a something that he doesn't have no control over? What can that person do, just a fistfight or guns or whatever?Tape: Barry: That's it-- there is nothing you can do and that's the difference between Australia and the United States. Sonny: Well, I thought, like, is an America having been a country which has had a way longer immigration history, I would have hoped that in America, people's right to respect would be more protected than it is in Australia. Say, I'm really sorry to say, like, that is not a great country than what we hear on TV all the time. It's, somehow, it's failing its people. MusicBarry: People have talked a lot about Australia peeling back the right to bear arms in the 90s, which it did, and how they went from having mass shootings to no mass shootings. But they also peeled back the rights to free speech in a way that goes against the direction in the US. So here you have two Anglo colonies, who made two different choices. One, the US, tends to see all rights, but especially free speech rights, as absolute. The other sees them as balancing amongst other rights and aims. And right now you have to pick. You can't be a relativist. You can't say they're just different systems. Either something seriously wrong is going on in Australia, or something seriously wrong is happening in the U.S. Which one is it?Tape: Hi-Phi return after these messages. Music, messagesHoward: My name is Jeffrey Howard, and I'm on the faculty of the school of public policy at University College London. Most of the world's liberal democracies believe that hate speech is not protected by the right to freedom of expression. The United States differs in believing that hate speech is protected by the moral right to free speech as expressed in the First Amendment of the US Constitution. Barry: Jeffery Howard is the philosopher today who will represent the Australian position. His view is that speech is like anything else that can cause harm to others, so legal prohibitions on hate speech can be justified.Shiffrin: I'm Seana Shiffrin. I'm in the chair of the philosophy department and a professor in philosophy and I'm also the Pete Cameron professor of law and social justice at UCLA.Barry: Seana Shiffrin is the philosopher today who will represent the American position. Her view is that by and large the US legal system has it right about what morality requires in terms of freedom of speech. Shiffrin: I do think these countries get it wrong but I think it's a really hard call.Barry: Let's start with the moral justification for the American system. There's this fiction coming from the way some Americans fetishized the Constitution. The protections for freedom of speech sprung fully formed from the morally enlightened heads of the founding fathers. True, the First Amendment was written and submitted in 1789, but it took over two centuries of legislation, litigation, trial and error, and scholarship to get to the point where we are today. All of the things we take for granted as being protected under the First Amendment had to be made and protected by advocacy groups, courts popular movement, or popular backlash, and most of this happened in the last eighty years of US history and things could have turned out differently. In fact, they did turn out differently... for a while. Schifrin: The Pledge of Allegiance was mandatory in many states as a result of legislation passed by state governments and local governments.Barry: this is between 1898 and 1940.Shiffrin: And there had been protests to the mandatory Pledge of Allegiance for many years, but they became more widespread as a result of a radio broadcast by a prominent Jehovah's Witness minister. Minister: The attempt to compel children to salute the flag is palpably wrong for the reason it pictures in the mind of the child an image of power that ignores Almighty God from whom salvation alone proceeds. Shiffrin: And so the Jehovah's Witnesses, many of them, thousands of them, thousands of their children started to refuse to say the Pledge of Allegiance. Well this was not well-taken. This movement kind of started right around when World War two was beginning, and many members of the American public thought that the Jehovah's Witnesses were a kind of Nazi Fifth Column. Minister: in Germany the people are commanded to salute the flag and say 'Heil Hitler' which means salvation proceeds from Hitler.Shiffrin: In 1940, a challenge to a requirement to recite the Pledge of Allegiance was brought under freedom of religion principles. Barry: Gobitis vs. Minersville School District was the case. It was the first of three cases involving Jehovah's Witnesses in the early 40s that would open up what would eventually become the American moral foundations for freedom of speech. Shiffrin: And the Jehovah's Witnesses lost on an 8-1 vote by the Supreme Court.Barry: Freedom of religion, the court reasoned, does not include the freedom to do something contrary to the interests of the country you're in. When there's a conflict, country wins out. In fact, in one passage of the decision the court explicitly stated that forcing a child to recite the Pledge when it is contrary to the religion of their home and parents is actually one way to help counterbalance indoctrination by parents. Eight--eight Supreme Court justices thought this reasoning was consistent with the First Amendment. It could have easily been the law of the land today if it weren't for what happened next. Shiffrin: In the summer of 1940, following that case, across the country thousands of Jehovah's Witnesses were beaten up and assaulted. And members of the public would approach to Jehovah's Witnesses, demand that they kiss the flag or salute the flag. And when these adults refused they were beaten up some were tarred and feathered. Some were killed, some where impaled by flag poles. It was a horrible summer and these episodes of violence happened all over the United States. it's just horrific.[Music] Barry: About 2000 Jehovah's Witness kids were expelled from schools in fifteen states for failing to say the Pledge. In the middle of all the violence, a Jehovah's witness man in New Hampshire named Walter Chaplinsky went out into the hostile streets and preached, as Jehovah's Witnesses dom delivering his Watchtower pamphlets. He was surrounded by a group of men taunting him to salute the flag. When he refused, one of the men went to get a flagpole while the other guys held him down on a car. A police officer arrived just before they killed him, and the police decided to take Chaplinsky in, rather than the mob. And as they did this, Chaplinsky called the Marshall quote "A damn fascist and a racketeer." The police arrested and charged Chaplinsky for use of offensive words in public. That case went to the Supreme Court in 1942, and the court ruled against Chaplinsky, saying that his speech wasn't protected because it constituted quote "fighting words," and fighting words aren't protected by the First Amendment. There just wasn't a limit to how much the Supreme Court seemed willing to stick it to Jehovah's Witnesses with wide public support during this period. Shiffrin: Many of the children still refused to say the Pledge of Allegiance. And there was some evidence that, with some turnover in the Supreme Court, that maybe a subsequent case might come out differently, and so a new case was brought in 1943 that didn't make a freedom of religion argument. It made a freedom of speech argument.Barry: This is the famous Barnett case. West Virginia versus Barnette. The difference between a freedom of religion argument and a freedom of speech argument is subtle, but profound. If you win on freedom of religion grounds, you get to refuse to pledge, so long as you have sincerely held religious beliefs inconsistent with a pledge. If you went on freedom of speech grounds, the state has no right to compel anything like the pledge in the first place. Shiffrin: The Witness children won on a 6-3 vote, and one of the most beautiful opinions in Supreme Court history was written by justice Jackson which referred to the idea that:Jackson: If there is any fixed star in our constitutional constellation, it is that no official, high or petty can prescribe what shall be orthodox in politics, nationalism, or religion.Shiffrin: It's a very beautiful and moving opinion. The outcome of Barnette is that no child--indeed, no person in the United States--can be forced to recite the pledge. But despite my admiration for this opinion, the opinion hasn't always been thought to have been very clear. Barry: To see why, you have to understand two intuitive moral bases for having freedom of speech at all. The first is that everyone has a right to speaker autonomy, which is the right to express yourself without state punishment. The second is the right to listener autonomy, or the right not to have the government determine what speech you can listen to. The author of the dissent, Justice Frankfurter, argued that forcing children to recite the Pledge didn't violate any of these basic rights.Shiffrin: Because it seems as though in school, we ask children all the time to read things that may not reflect their opinion, that it's a part of the educational process, that you expose children to ideas that aren't theirs you don't spend the entire time in the classroom just asking students to talk about their beliefs and what they think.MusicBarry: Children and parents, Frankfurter argued, could immediately before the pledge say something like 'I don't believe anything I'm about to say,' and then afterward they were allowed to say 'Everything that just happened is bullshit and you're all here worshiping an idol.' The mandatory pledge wasn't prohibiting any speech and the mandatory pledge was not preventing any anti-pledge information from getting to the children. Their parents and church were free to tell the children whatever they wanted, no violation of listener autonomy.MusicAnd remember this wasn't a freedom of religion argument so it was supposed to be conceding that the state is allowed to prohibit religious practices when it deemed them contrary to public interest. If all you had was speaker and listener autonomy as the moral basis for freedom of speech, there's no reason why there can't be state-mandated speech, as long as you also allow individuals to say whatever they want before or after that speech. Shiffrin has a view that if there's something morally wrong with government compelled speech, it must be wrong because it violates a more basic autonomy.Shiffrin: Which is freedom of thought, the ability to speak to oneself freely but also to develop as a free thinker.Barry: For Shiffrin, free speech protections come from the same moral grounds that protect us from mind control. It's always supposed to be better that our moral views come from us developing them freely and autonomously rather than having them forced, and this is important. Mind control is bad, whether we're being controlled to think good things or bad things. that's the point of valuing autonomy. It's better to have some people freely choose the wrong moral views than it is to force-feed the right ones to everyone, and with few exceptions, like threats and incitement to violence, government legislation of hate speech, for Shiffrin, violates people's autonomy, even if those views happen to be right.Shiffrin: And I take very seriously how difficult it is to watch a Klan march. I don't listen to or be the audience of the the hateful speech of the Westboro Church, but I think the public forum is a place in which we protect the ability of people to say what's on their minds, to elicit the reactions of other people. And in those confrontations, to learn. For moral knowledge it's extremely important that you don't believe it by reflex, that you believe it through understanding. Understanding of moral norms really often relies on the ability to make a mistake, I don't have the sunny view that every Klan member or every homophobic member of that church learns from these interactions. I think there's some people who will never change their minds and I think there are other people who who learn what's wrong about what they're saying through those interactions.Barry: In the years since Barnette, the Supreme Court has gone even farther than someone like Shiffrin would endorse in valuing autonomy over speech. Specific acts of racial intimidation, like cross-burning, are protected speech. They've peeled back even the 'fighting words' doctrine that got Walter Chaplinsky sent to jail. They've since ruled that racist and anti-semitic epithets aren't fighting words. They even struck down convictions where guys were arrested for saying 'Why don't you pick on someone your own size?" or "White son of a bitch, I'll kill you," so even literal fighting words aren't fighting words. That's the view from the American position: that autonomy reigns supreme. It is the fundamental value that must be preserved because it's the value that underwrites who we are as moral beings in the first place. That's how deep it goes. when we come back we'll see the view from Team Australia.Tape: We'll return to the rest of Hi-Phi Nation after these messages. Barry: I'd like to tell you about another podcast I love. It's called 20,000 Hertz. It's all about sound. Hertz is made by a team of professional sound designers, and the show tells the stories behind the world's most recognizable and interesting sounds. Things like how the sound of slot machines force you to keep playing well what's the story behind the THX deep note, and even what other planets in our solar system might sound like. It's a blend of pop culture science and history about the experience of audio. The show's hosted by Dallas Taylor, who talks with experts from around the world about how sound affects our mind and body. Every episode is meticulously mixed and crafted top-notch sound design is used throughout, to illustrate educate and engage you on the topic. Search for 20,000 Hertz, which is all spelled out without numbers, in your favorite podcast player.Barry: The argument for the Australian view, Jeff Howard's argument, begins with the one place where hate speech is regulated in the U.S.:incitement to violence.Howard: The defining case on this is a case called Brandenburg V Ohio. This was a case concerning a guy named Clarence Brandenburg, who was the head of a local chapter of the KKK, and he had a televised address where he talked about how important it was to take vengeance against black Americans and Jewish Americans who he thought were doing far too well in American society. And so he was arrested and punished for putting out this incendiary speech, and then it went all the way to the Supreme Court. And the Supreme Court decided that this conviction was unjust, and in laying out its decision the Supreme Court said that in order for incendiary speech to be suppressed, it has to meet three conditions.Barry: For the state to suppress a piece of hate speech, the speaker has to intend and the speech has to produce imminent lawless action. Shiffrin endorses these kinds of conditions. Direct threats and incitements don't get to hide behind autonomy. But Howard thinks that the exceptions made in Brandenburg have farther reaching consequences philosophically than have been made legally. For one thing, think about Sonny's case in Australia I mean if you call me a racial slur, and as a result I have to whup your ass, why isn't that an incitement to violence? One answer, I guess, is that you don't intend for me to whup your ass, and that's true sometimes. Other times, maybe you are trying to start something, but the bigger point is that in a society in which there is more hate speech of this kind, there will be more violence, either as retaliation or as incitements. Now we know as a matter of fact that Sonny wouldn't have a case in the US. The n-word used in a public place is protected speech, but the question is why? Especially once you have the incitement exception?Howard: So one argument is an argument from listener autonomy, and this is the idea that any attempt by the state to censor the principles or the ideas to which citizens are exposed on the grounds that citizens just can't be trusted to hear them because they might react criminally, they might react by doing something morally objectionable, is just incompatible with viewing your citizens as big boys and big girls, adults who can make up their own mind who can listen to tough speech and then decide for themselves.Barry: I guess one way of looking at it is that autonomy outweighs incitement in cases like this. If someone calls me a slur, I shouldn't whup his ass. If I don't, I've made a good choice, a praiseworthy choice a choice worthy of esteem, that's an exercise in autonomy. If the government passes a law that prevents someone from calling me a slur, then I never have the choice of whether to kick the guy's ass. The government has lessened my autonomy Howard: It's not obvious why, if you endorse that argument, you'd make any exceptions for incitement, why you'd accept these Brandenberg conditions. It looks like even if the agent is intending to produce an imminent lawless action, even if it is gonna happen imminently, even if it's overwhelmingly likely to happen, you might still think that listeners have an interest in being exposed to this incendiary expression so they can decide for themselves whether to act on it. So we tend to think that even if you're a member of an excited mob that's getting whipped up by some charismatic speaker, you're responsible for deciding for yourself whether you're gonna act on some sinister message that you're being sold, or whether you shouldn't act on it.Barry: And yet Howard, argues the fact that even Americans are willing to punish those who incite imminent violence, shows that listener autonomy isn't everything the right to free speech admits of trade-offs.Howard: As moral agents we don't just have an interest in being exposed to all the different kinds of arguments and ideas upon which we might act. We have also an interest as potential victims of this kind of violence. So the more incitement we let contaminate our social world, the higher a risk that we may ourselves become the victims of this kind of criminal wrongdoing that the incitement inspires. And so it seems plausible to me that our interest as as listeners in exposure to dangerous views isn't absolute, where, in most cases, willing to accept some kind of trade-off between the amount of dangerous speech to which we're exposed, and our own vulnerability to criminal wrongdoing.MusicBarry: And we're willing to do this far beyond the Brandenburg conditions. For instance, the Brandenburg decision wanted to limit the exceptions to imminent violence. But nowhere else do we think the state can only intervene to protect us only when the violence is imminent. When a group of terrorists start planning now for an attack two years from now, there's no prohibition that says what they're doing must be legal since the attack isn't as imminent, and nowhere else in the law do we think the state can intervene only if the perpetrator intends the violence to happen. We're perfectly happy to arrest and jail drunk drivers even if they never intend to hit pedestrians with their cars. If we stand back and compare the kind of trade-offs we usually make between freedoms to act and vulnerability to criminal wrongdoing, we're perfectly happy to limit acts that contribute to far less violence than does hate speech, like jaywalking, sales tax evasion, even libel. Howard's argument is that, once we see why it's okay to restrict speech that incites imminent violence, we should consider broader restrictions on speech that harms and risks harming others intended imminent or not. This simply follows from the moral duty not to harm without a compelling justification. White supremacist speech of the sort that got Clarence Brandenburg arrested for doesn't deserve First Amendment protection, nor do YouTube videos advocating terrorism. Speech, like the kind that sunny was a victim of in Australia, doesn't deserve it either. There's an assumption and Howard's argument worth investigating it's the assumption that people really are more at risk for hate crimes in countries that allow hate speech than in countries that prohibit it. Well, it's true there is more hate crime in America than in Australia, and that's per capita. The last bit of data we have is that there's about 10% more, and hate crimes in America have been spiking in recent years. But these numbers aren't that trustworthy. Norms for counting hate crimes are different, the demographics aren't the same, and there's just more crime overall per capita in America. It's really hard to compare different countries and determine what causes differences in hate crimes. MusicHowever, in Australia the view generally is that the prohibitions there are in some way good in themselves. Tim Soutphommasane, Human Rights Commissioner:MusicSoutphommasane: But the Australian experience demonstrates how powerful it is for members of our society to know that the law is on their side when they experience racial hatred and racial discrimination. We shouldn't forget that when people experience racial hatred or vilification, it can prevent them from speaking out and from exercising their freedom of speech. While those from the First Amendment tradition may not intuitively or naturally see things in this way, I think that's been borne out in the experience of of Australian society, which is that the law can be used by people to find a voice and to speak back against racism and hold things to account. Barry: Maybe. I started off the episode telling you about the legend of Baba Deep Singh, the heroic seek defender of a golden temple. Well, five years after that battle the same Afghan force returned and blew up the temple with gunpowder. The temple today is a rebuilt structure, not the one that Baba Deep defended in 1757. Sonny Sidhu:Sonny: And at the end of the day, mate I must admit I'm defeated. I'm defeated by the system becauseBarry: --you won--Sonny: Mate, at the end of the day Jim (surname censored) still didn't apologize. He still thinks he is a better human being because he's a Greek and I'm an Indian. So have I been able to change him? How is it that I won? I could have done much more in my life, I could have enjoyed my life much more after having gone through that one year. I think, you know, sometimes it's better to just ignore and move on.MusicBarry: Stay tuned after the credits for a sneak peek of our Slate plus content.Tape: Hi-Phi Nation is written, produced, and edited by Barry Lam, associate professor of philosophy at Vassar College. For Slate podcasts, editorial director is Gabriel Roth, senior managing producer is June Thomas. Senior producer is T.J. Rafael. Production assistance this season provided by Jake Johnson and Noa Mendoza-Goot. Visit for complete show notes, sound track, and reading list for every episode. That's . Barry: There are other assumptions that I didn't mention that were part of Jeff Howard's argument. And they're the assumption that speech and action shouldn't be differentiated when it comes to morality, and it shouldn't be differentiated when it comes to how the law of use harm. These are assumptions that Shana Shiffrin challenges directly.Shiffrin: Some speech is a form of action a threat for example a promise these are speech acts they're both speech and action. I don't want to deny that speech can injure. I do think that speech has more content in it than action does. It's possible to be more subtle and nuanced with speech than with action goal. You can qualify a criticism but you can't qualify a punch, you can't say 'maybe' and punch someone and have it mean less or mean ambiguity. There's a kind of bluntness to action that there isn't to speech because of the possible nuance and precision and speech. With speech you have the ability to take something back and to revise it, whereas forms of violence like punching can't be taken back or revised after you've landed. It these are some differences between speech and action that seemed to me to matter and to be a reason to be more strict about what actions we permit and regulate them, what speech we do.Barry: Hear that, and get a special bonus episode where I and Stephen Metcalf, Slate’s critic at large and host of Slate culture Gabfest talk about this episode. Here's a little taste of that.Stephen: At the end of the day, he doesn't feel as though he regained whatever it was that he lost.Barry: What's interesting is that it revealed to him that what he was looking for all along was an apology. Tape: Yeah.Barry: And he wanted the person to stop seeing him as an inferior individual and that didn't happen. Metcalf: That's so funny because that's thinking about what human beings need at a primal and deep level that doesn't involve rights. And if someone apologizes to you it's to you as an individual they re-individuate you, they re-humanize you, they shouldn't have that power but, but the force of an apology that's delivered sincerely is a remarkable thing, and the law can't touch that in some sense. Barry: Yeah, right, which is fascinating because you were talking about Kantian notions of autonomy, right?Metcalf: Yeah.Barry: And what you're describing is genuine moral development.Metcalf: Yeah.Barry: Right, the kind of thing that, as an advocate of the American position would say, the law doesn't give you. Barry: Yeah.Barry: Right, the law cannot provide that for you the next step the next premise is going to be, therefore, we shouldn't make the law provide you with anything short of that. If the guy arrest was arrested, would that have provided Sonny with the kind of redress that he wanted?Tape: Yeah.Barry: Probably not a and we're talking about what was he looking for moral development among the guy who called him the name?Tape: Yeah. Barry: And for himself to have the same kind of moral status that is restored to him that seemed to have been taken away from him.Tape: Yeah that's a really good point now can I make my argument on behalf of the Australian system now that you've almost brought me around at the American one?MusicTape: Get the slate plus version of this show just by going to slash Hi-Phi Plus to sign up or click the link in the show notes.Music ................
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