06 August 2018

Confronting hate, understanding China and recalling the US Constitution

In this month's Bookshelf, The Global Legal Post's Editor-At-Large, Dr David Cowan, picks three topical books on hate, China and the US.

Two topics prominent in the world of law are hate and China, and they are also topics which highlight the fragility of the western liberal democratic order and legal system. This month’s Bookshelf unravels the issues in two new books from Oxford University Press, which are fascinating readers by legal academics for anyone thinking about current legal issues.

While there doesn’t seem to be a lot of hatred targeting China there is certainly a lot of control by the regime restricting the free speech that is necessarily a part of the 21st century hate speech. I recall a few years back being startled slightly by interviews with Chinese students studying in London on a radio show discussing democracy. The students defended China’s regime, and suggested the love for democracy in the west is not reflected by the actions of government. On the topic of hate, there is much debate about its role in society and calls for ‘hate speech’ laws which contradict cherished notions of freedom of speech as the foundation of our political and legal order. As an added bonus there a short note on a new introduction to the US Constitution, the basis of the world’s first constructed liberal democracy.

HATE: Why We Should Resist It with Free Speech, Not Censorship

By Nadine Strossen
Published by Oxford University Press, 2018

In HATE, professor Nadine Strossen covers a lot of ground, drawing on an inter-disciplinary approach from legal, historical, social science, psychological, and transnational research. Her fundamental premise is that all ideas, no matter how hateful, deserve first amendment protection. Professor Strossen sets out with the premise that a ‘specific, generally accepted definition’ is lacking, and goes on to ‘refute the argument that the United States, following the lead of many other nations, should adopt a broad concept of illegal “hate speech,” and to demonstrate why such a course would not only violate fundamental precepts of our democracy but also do more harm than good.’

Timely study

Professor Strossen obviously knows her stuff. She was the first woman national president of the American Civil Liberties Union (ACLU), from 1991 to 2008, and is now professor of constitutional law at New York Law School. Throughout this timely study, she mines the sources of jurisprudence and cases adeptly and offers some sense of calm in navigating the ‘hate’ landscape. She also recognises that ‘hate speech’ is often ‘deployed to stigmatise and to suppress widely varying expression.’ There is a shared core across the ideological spectrum to draw upon, she argues, which supports the idea that the first amendment should transcend partisanship.

HATE tackles the many misunderstandings that fuel and confuse current political life, which is often divided into ‘hate speech vs. free speech’ and ‘us vs them.’ Citing evidence from many countries, she argues that ‘hate speech’ laws are at best ineffective and at worst counterproductive. The best way to resist hate and promote equality is not to promote censorship, but rather to encourage vigorous counterspeech and activism. She reasons that expanding free speech, not limiting it, is the solution for changing the hearts and minds of those who espouse hateful ideologies. We hear too many incorrect assertions that ‘hate speech’ is either absolutely unprotected or absolutely protected from censorship, but like many big concepts ‘hate speech’ has no generally accepted definition.

Every idea is incitement

She notes ‘every idea is an incitement,’ but inciting hatred is fraught with vague and overbroad language which makes the process of enforcement subjective. She notes correctly that the issue is often falsely framed as a question of whether laws should punish hate speech, whereas in fact we need to consider ‘whether there are some circumstances in which “hate speech” should be punished and, in particular, whether it should be punished in circumstances beyond those in which it already is punishable.’ We should not, she says, allow government to punish such speech solely because its message is disfavoured, disturbing, or vaguely feared to possibly contribute to some future harm.

There is a tendency to play the ‘Hate speech’ card to censor what proponents see as potential harms such as discrimination, violence, and psychic injuries. However, there is little analysis of whether such censorship effectively counters the feared injuries. There is insufficient evidence that hate speech laws in fact reduce discrimination, and even less so she says in constitutionally protected hate speech. She explains ‘the existence of “hate speech” seems to have had a galvanizing effect rather than a silencing one.’

There is a lot to like about this book, but the problem we all face is how to create the neutral space needed for her debate. Professor Strossen illuminates a problem that lawyers should be better at addressing, and that is when words have the power to go too far. The issue is also highly contextual, and words are powerful to describe the context, but also to manipulate. We need to be careful how we use words, but counterspeech is often an attempt to control language as well in order to effect change. The stress on ‘counterspeech’ and activism can still fall prey to intolerance, and dialogue continues on the basis of ‘only so long I get my way.’ As progressives advocate for change, is there room to accept the need not to change? Another question arises of where does hate come from? It is rooted in a sense of lacking control or power, as much as it does a dislike of people and views which are different.

Stick and stones

She gets to the heart of the real issue today, namely that hateful communication creates emotional disturbance and harm. Older people may recall the playground rhyme ‘sticks and stones may break my bones, but words will never hurt me.’ This is not the rhyme for today’s younger generations, who feel the emotional effect and want it acted upon. This is to make an observation, not a judgement. The digital world and social media communication has made public dicussion more emotional, partly because it is a crowded space and touching emotion is the way to get attention. Even previous eras recognised that ‘bad’ news creates more emotion than ‘good’ news, which is why the media tends to gravitate towards the bad ore readily than the good.

Hate speech, one ventures, has emerged in this context. This emotional world, filled with rising hatred, is a political and legal problem that will keep us all attentive in the coming years, and Professor Strossen’s book is a useful addition to help us navigate such stormy waters in the hope of finding calm. Shielding people from such emotional challenge may equally be counterproductive. She helpfully proposes a range of non-censorial strategies of counterspeech and counterexample, empowering disparaged people, education, developing thicker skin though outreach, interaction and inclusion. These are concerns not just inclusiveness but also alienation, and not just words but actions. These are all issues where dialogue is needed, instead of confrontation. As professor Strossen concludes, more speech is needed, not less.


End of an Era: How China’s Authoritarian Revival is Undermining Its Rise

By Carl Minzner
Published by Oxford University Press, 2018

Carl Minzner, Professor of Law at Fordham University, argues that despite having appeared a relative haven of stability and growth over the last three decades, China’s political stability, ideological openness, and economic growth are unravelling. Professor Minzner, an expert in Chinese law and governance, addresses a array of issues including the Chinese government’s anti-corruption campaign and crackdown on civil society and human rights activists, elite politics and street protests, and the radicalisation taking place in Hong Kong. He offers a view to help readers understand how China arrived at a dangerous turning point, and outlines the potential outcomes that could result, suggesting ‘China is actually an example of the perils of failing to undertake political reform.’

End of reform

The reform-era norms have been breaking down, not just in terms of judicial reform or treatment of civic activist, but he says it is now ‘mutating like a virus across many different field. This explains why, he says, China is moving from the ‘turn against law’ to ‘the end of the reform era.’ Since the early 1990s, Beijing’s leaders have sought to preserve China’s one- Party system. While their piecemeal reform has led to economic growth and has allowed the authoritarian political system to remain in power, China is now at a dangerous turning point. Times have changed, he argues and the era of ‘reform and opening up’ and ending. China’s leaders have progressively cannibalising institutional norms and practices that have formed the bedrock of the regime’s stability in the reform era.

Technocratic rule is giving way to black-box purges; collective governance sliding back towards single-man rule. China is closing down. Religion and the arts have been targeted in the effort to promote ideological conformity, which is ‘eroding the relative openness for belief and thought that characterized China’s reform era’ in a ‘self-imposed intellectual isolation’ sapping national dynamism. He notes ‘In returning to history, Beijing may be at risk of repeating it.’ If the state crumbles, Professor Minzner argues ‘democracy will not emerge from the ashes.’ In his concluding chapter, he brings together a range of themes, given in italics here, stating ‘China may not be at a crossroads. Rather, it may be in a downward spiral. Soft Authoritarianism could decay into steadily more intense versions of Hard Authoritarianism, possibly lurching into Populist Nationalism, with the specter of Regime Collapse looming in the background.’

Mutual distrust

Profesor Minzner puts the China issue into the context of a perceived risk that the post-1945 international order may go under, and he offers some guidance on what is needed from America. He argues international engagement is in America’s interest, and while regime change should not be US policy nor should US support for the existing regime, as America needs to uphold its own liberal values. However, there is a need to examine all worst-case scenarios less these principles he outlines are breached on the American side and radicalisation of views emerges on both the China and America side causing nationalist views to crowd out moderate ones, thereby leading into ‘another decades-long slide into nativism and mutual distrust.’

He is not arguing a collapse is imminent or even likely, rather he emphasizes China has changed from the reform-era, and everyone ought to recognise what has been happening. For lawyers looking at China this is an important point, there are still a lot of enterprises seeing China as the future, but if Professor Minzner is right it may not be the future they expect.


The U.S. Constitution: A Very Short Introduction

By David J. Bodenhamer
Published by Oxford University Press, 2018

The issues of hate and China are two amongst many where America is in the middle of the storm, partly whipped up by a president who engages in social media and plays into the narrative discussed in both books. It is timely then, as a reminder, to suggest briefly a very short introduction the US constitution. OUP has given us such a guide, as part of its excellent and extensive library of introductory texts, this one authored by historian David J. Bodenhamer, founding executive director of the Polis Center at the University in Indianapolis, Indiana. The Constitution and words like impeachment are bandied about frequently when administrations and individual presidents run into trouble, and those engaged in the debate would do well to take refresher courses. For the rest of the world, it is a very useful introduction to the subject, it does what it says on the can and much more besides.