Nadine Strossen is a leading expert on constitutional law and civil liberties. She is the author of HATE: Why We Should Resist It with Free Speech, Not Censorship and Free Speech: What Everyone Needs to Know. She was previously the President of the American Civil Liberties Union (ACLU) and has testified before Congress on multiple occasions. She is a Senior Fellow with the Foundation for Individual Rights and Education (FIRE) and was named one of America’s “100 Most Influential Lawyers” by the National Law Journal.
In this interview, Strossen shares her insight on the power of “more speech” and “counter speech” as potential alternatives to effectively countering hate speech while highlighting the limitations and inefficacy of legal approaches.
This conversation has been edited for length and clarity.
Deeksha Udupa: In your work, you examine and unpack the “hate speech vs. free speech” framework largely in the U.S. context. How do you think this framework translates to other parts of the world, where hate speech rapidly leads to on-the-ground violence against minorities?
Nadine Strossen: The framework that the U.S. Supreme Court has crafted under the First Amendment of the Constitution has universal applicability because it is a framework that establishes general standards and principles. With that being said, the framework is extremely— and indeed completely— fact-specific and content-sensitive. I say this not as an imperialist American who thinks we know better than the rest of the world. I say this as someone who has studied various legal systems and talked to human rights activists around the world, and these activists also oppose censorship beyond the power that would exist under the U.S. First Amendment. They oppose this not because it is inconsistent with the laws of their own countries but because they believe that further censorship is ineffective in actually countering and changing hateful attitudes.
The basic standard under the U.S. First Amendment is also very strongly echoed in the International Free Speech law under the UN treaties, which various international free speech experts have studied and written about. There are two basic principles: first, speech may never be solely suppressed because one disapproves or even loathes the idea, content, and message behind the speech. This holds true even if the message is despicable or hateful. The answer is not government censorship and suppression. The second basic principle goes beyond the content of the message: if the speech directly causes or imminently threatens specific communities, then it can and should be suppressed.
I can think of many situations in less developed societies with more volatile social situations and less effective law enforcement where messages may satisfy the emergency standard in that context yet may not in the U.S. context. With that being said, the U.S. is a big place, and there are instances in the U.S. where hateful speech can and should be punished, like the 2017 white supremacist Unite the Right rally in Charlottesville, Virginia. These pro-racist, white supremacists came together and were chanting statements like “you will not replace us. Jews will not replace us.” These hateful statements alone could not be punished. Yet, considering these statements in the context of how they were marching towards a group of counter demonstrators—with lit tiki torches that they brought very close to [their] faces — that posed an immediate threat to the counter protesters which should’ve been punished.
To summarize, when there is a direct causal connection between speech and imminent violence such that other measures such as law enforcement, education or information are not enough to prevent violence, that speech should be punished. I say this with the recognition that this standard will be satisfied more often in many other countries than it would in the United States.
DU: Why do you think ‘hate speech’ laws have predominantly done more harm than good?
NS: My goal is to understand how we can resist hate. If I were convinced that more censorship effectively resisted hate, I would be in favor of it. One of my major international sources is called The Future of Free Speech, which is based at Vanderbilt University and founded by Jacob Mchangama. They have a very global perspective on free speech and have consistently shown that, at best, hate speech laws are ineffective in changing people’s perspectives and reducing discriminatory violence. At worst, they are counterproductive. The goal is to change people’s minds and perspectives: to enlighten them and broaden their understanding of other people. It is widely accepted that criminal law and a more punitive approach is ineffective in the U.S.
We need to move towards a restorative justice approach, where we root our work on how to constructively integrate people into our society. As I’ve said earlier, if the words are punishable under the First Amendment, then punishment is appropriate. We must also bear in mind, however, that it may not be the most effective approach to sentence someone under a hate speech or hate crime law and send them to prisons, where they are likely to have their hate views further reinforced and deepened. I have extensively read about people who were formerly members or even leaders of hateful organizations. They’ve been able to redeem themselves with the help of others— not others who are seeking to punish or shame them, but others who are reaching out with compassion and empathy for them as people.
Counterspeech, outreach, and empathy should not be reactive but proactive. It is too little too late if we wait until someone has actually committed an act of violence. That’s why I love the work that CSOH and other organizations are doing to take advantage of the powerful tool that is social media to do a lot of good. We are all aware of the great deal of harm that these platforms can do, but I also believe that they can do a lot of good. I am heartened by studies that show the positive effects of using tools like AI to proactively debunk disinformation, hate speech, and extreme content.
DU: If laws are not the solution, what alternative mechanisms do you propose for holding perpetrators of hate speech accountable, especially when it causes real-world harm?
NS: All of the other methods are in the general category of ‘more speech’ because they all involve actually communicating with the other person. This involves many types of communication. It can range from the dissemination of information, because oftentimes, people’s discriminatory views are based on really distorted disinformation. In the U.S. context, for example, there is a lot of dangerous disinformation going around about how immigrants are bad for the economy, are causing crimes, and are likely to be terrorists. If people are open-minded enough to read alternative information, that is one possible form of ‘more speech.’ There is also a psychological element to all of this. Providing companionship and support for those with hateful views…this goes back to things that have been practiced for decades, like facilitating conversations between those with hateful sentiments and those from the group(s) that they harbor hateful sentiments towards. History has shown that the best way to overcome prejudice against any group is to provide the person who has the prejudice, or who’s flirting with the prejudice, the opportunity to actually interact with somebody in that other group.
And it makes a huge difference, interestingly enough, not only in reducing prejudice toward that particular group, but also in reducing prejudice in general toward any other. [This is] even more fascinating in an era where not everybody gets to travel, and many of us live in relatively segregated communities along certain lines, [known as] para-context. So, not real contact, but reading a book about somebody with different background or ethnic characteristics, or watching a movie, or even having a friend who knows somebody in that other group. In other words, it can be at one remove or even two removes and have an enormous positive impact. That’s a really important example of communication that can make a difference. And why movements such as against the Oscars and the Emmys [being] so white, and there’s been a big move in the publishing industry to have more authors [and characters] of previously unrepresented groups. I find that the major division in the U.S. now is not based on race, gender, or religion but on the basis of politics. People feel strong hatred, and they use this word toward the opposing party.
Another really important form of communication is offering support and services to those that are targets of hate speech where these hateful messages are denounced. When I wrote my book on hate speech in 2017, I looked at influential law review articles written in the late 1980s/early 1990s by three law professors of color, all of whom were very involved in the critical race theory movement. They were the first ones to propose hate speech codes on college campuses, and they interestingly said that one of the reasons that they were proposing these codes was the lack of counterspeech. I found that statements of solidarity with those targeted by hate speech are even more important and constructive than punishing the hateful speaker.
DU: I understand where you’re coming from in terms of genuine and open communication— more speech— as a means to combat hateful speech. Yet, at the same time, creating a conversation between the person with hateful and discriminatory views and the person whose community is being discriminated against will undeniably take a toll on the person experiencing the hate. It almost feels like they have to prove their humanity. How do you respond to that?
NS: In fairness, it goes both ways. There are people who see Black Lives Matter as hateful… towards white people and police officers. There are men who really believe that pro-feminist rhetoric and values are disparaging to men. I think it’s important to see this in universal terms: many of us feel that we are judged and defined not as individuals but by individual characteristics that are out of our control. I think that’s a tragedy for everyone.
DU: How do you respond to arguments from countries that claim hate speech laws have helped prevent social unrest and violence?
NS: Two studies that I reviewed show that, at best, there is a relationship of correlation, not causation. It’s almost impossible to construct a study that shows causation. In these studies, they looked at instances of violence and hateful speech in different countries, I think mostly European. They show that, if anything, the correlation is the other way around. The more robust free speech there is, the less violence and social unrest there is. In the U.S., for example, we had more racial violence and discrimination during the periods prior to the Civil Rights Movement and at the beginning of the Civil Rights Movement, when the Supreme Court did not protect hate speech. It’s no coincidence that during the crucible of the Civil Rights Movement, the Supreme Court not only began to protect equal rights, but also began to strongly protect free speech— which includes hate speech— because laws that empowered government officials to punish speech under very vague criteria were being used against pro-Civil Rights demonstrators. Martin Luther King Jr., among others, said that the greatness of America is that you have the right to speak and advocate for your rights.
Hate speech laws are ineffective partly because you’re only dealing with the tip of the iceberg. You’re not addressing the underlying attitudes. The other serious issue is that history has shown that these laws— due to their overly broad, subjective, and vague nature— are disproportionately used against the groups that lack power in society. This is also the case in South Asia, where the members of the very minority groups that are sought to be protected are the ones most censored and affected by hate speech laws.
Cherian George has seen an inverse correlation between the volume of hate speech during election periods and the extent to which free speech is protected. He says there is less hate speech in elections in countries like the U.S., where you have the legal right to say it. On the other hand, there is more hate speech in African and Asian countries where one legally doesn’t have the right to say it.
The final point I want to make is that we are not just trying to change individual people’s attitudes but the overall culture. We are trying to cultivate a culture of mutual respect, peaceful interaction, and civility.
DU: Does counterspeech also include dissent?
NS: Yes, I think of counterspeech as any expression that counters hateful attitudes and actions and their potentially negative impacts.
DU: How do you address the critique that ‘more speech’ only works in societies with equal access to platforms for expression and redress, which is often not the case in South Asia or most parts of the world?
NS: One of the reasons why I strongly support freedom for online platforms is that freedom of speech is only an abstract ideal and not a meaningful reality unless we empower and enable every member of our society to intentionally exercise and engage in free speech. To me, free speech is an active concept that requires those of us who support it to also support education, the availability of technology, and systems that would make technology more widely available. Another step I would take towards attaining meaningful counterspeech is ensuring that people have access to technology and resources, which would empower them with the self-confidence and resilience to raise their voices.
The power of the First Amendment in the U.S. is shown through how various laws that would enforce censorship are being challenged in court. A couple of weeks ago, a federal judge in Arkansas struck down a state law that would have banned books in libraries and bookstores for minors that were allegedly pornographic or obscene. In reality, they were targeting books with LGBTQ themes. The First Amendment effectively prevents governments from weighing in to skew the conversation in terms of the dissemination and receiving of information. It protects the right to receive information.
In a more global capacity, the more authoritarian the government is and the less independent the judiciary is, the worse the situation will be. I have not closely followed the Indian Supreme Court, but I do know that it has issued very strong decisions on protecting speech. I wonder how realistic it is if the judges are under threat of being replaced, which happens in other countries where judges dare to rule against the governing authority, but this emphasizes that free speech and anti-hate initiatives cannot meaningfully thrive alone. They have to be woven into the overall context of democracy and human rights.
DU: When the state itself is promoting and upholding fascism and authoritarianism, where can we turn for solutions? How can we effectively combat hate speech and disinformation in such contexts, especially with limited state involvement? What strategies would you suggest?
NS: It is precisely in these situations when it is most dangerous to give the government yet another tool. A fascist government doesn’t need a law— it will just repress people, anyway. We’ve seen that laws against disinformation are constantly weaponized against those who dare to dissent against the state in the same way that hate speech laws are weaponized. The worst possible step is to further empower the government to suppress speech.
This is where we have to depend on civil society and education. We want democracy, human rights, non-discrimination, and equality. I have chosen to emphasize free speech because I believe that it is the absolute prerequisite for advocating for any other right. If we don’t have free speech, we can’t even appeal to our fellow citizens to raise their voices. We can’t organize civil society organizations. We can’t educate our students on basic values we deem to be correct. We can’t lobby the legislature. We can’t petition the courts. Free speech is an essential instrument for promoting other rights.
DU: In contexts where the state itself is complicit in promoting or enabling hate speech, how can individuals effectively counter it?
NS: Throughout history, there have been ancient and recent examples. Historic humility is key. People have made huge differences in toppling totalitarian regimes. There are always enormous setbacks that we see all the time, but still, there is a stride forward. I visited Taiwan and the Czech Republic, both of which are countries, by my standards, that have had recent transitions to democracy from very repressive regimes. When I visited Taiwan in my younger years, Taiwan had a military dictatorship with a one-party system. Those who were trying to form an alternative political party were in prison, and I had met their spouses and supporters in very secretive spaces. The dictatorship was eventually overturned through long and patient lobbying, organizing, and advocating, and this was all dependent on free speech. In the case of the Czech Republic, which until recently was under Soviet domination, it was through the peaceful mobilization of the cultural sector, the journalistic sector, the academic sector, and civil society that democracy was ushered in.
It’s no surprise that in those societies, free speech is lionized because free speech is what enabled them to bring about the downfall of a totalitarian regime. That is why authoritarian regimes always suppress free speech: free speech is the greatest danger to their continued existence.
DU: Advocates for big tech accountability have consistently voiced the need for more robust content moderation systems. How do content moderation systems fit into the framework of “hate speech vs. free speech”?
NS: Content moderation can certainly be skewed in a way that would exaggerate or encourage people’s tendencies to seek out more extreme perspectives. With that being said, all of the evidence that I have seen actually debunks this assumption. This is always a possibility, but I have found no evidence that actually shows that this is happening. On the contrary, I’ve seen recent studies that analyze where people would have gone without the algorithms rather than investigating where the algorithm drives people. These studies show that even without the algorithm, the person would’ve generally gone down an even more extreme pathway. If anything, that debunks the assumption that we generally have. Algorithms actually seem to have a moderating impact.
I’ve also read studies that show that people who get their information and news online tend to also look at different sources with different perspectives when compared to people who receive information offline. Again, this shows that we have a lot of assumptions that are not necessarily rooted in actual studies.
For me, as a civil libertarian and free speech advocate, my ideal would be user empowerment, which requires radical transparency. We aren’t the users. We are being used. We don’t know what algorithms are selected to disseminate materials to us. In an ideal world, we’d have that information to be empowered to choose what content we want.
Even though I support free speech for editorial decisions that are made by these platforms, I also support user privacy and user information. It is a consumer protection approach. We should know what the product is and should have other alternatives.
Editor’s Note: To learn more about counterspeech and various techniques to address hateful and harmful speech, consider exploring the resources provided by the Dangerous Speech Project.