HUMAN EXCELLENCE

In this final section of the chapter I focus on the idea of personal develop-ment through the cultivation of human excellence, and on the idea that the proper role of lawmakers and legal professions is not simply to exemplify aspects of human excellence in their decision-making but also to create laws that promote aspects of human excellence among the population. There are, of course, many different ways of understanding the nature of human excel-lence, but one natural place to begin is with Aristotle’s conception of eudai-monia , which is a matter of living a life of reason-governed virtue within a political community. What is more, in both Aristotle’s Ethics and Politics , we find that legitimate constitutions, just laws, and right-acting magistrates are directed toward the promotion of human excellence. Some law facilitates doing and living well—for example, law relating to currency, exchange, con-tract, and gift giving enable the realization of virtues in the sphere of getting and spending, not the least of which are the virtues of liberality ( eleutheriotes ) and magnificence ( megaloprepeia ) (Aristotle [c. 350 BC] 1976: 104, 142–145,

149–152). Other law discourages doing and living badly—for example, Aris-totle claims that ‘there is nothing which the legislator should be more careful to drive away than indecency of speech’ (Aristotle [c. 340 BC] 1996: 193).

Since I have adopted principles as the primary units of analysis throughout this book, some might question the possibility of taking an aretaic turn. If virtue ethics and virtue jurisprudence in particular are focused on the good agent rather than the good action, how can principles tell us what constitution drafters, supreme court justices, trial court judges, legislators, policymakers, and regulators should or should not do in given situations? However, I follow the lead of Rosalind Hursthouse (1999) in supposing that principles (or what she terms ‘v-rules’) can be part of the normal vocabulary of virtue ethics. Of course, there are philosophers who will insist that the adoption of Hurst-housean principles has no place within virtue ethics properly understood. ²⁵ But my central focus is not excavating virtue ethics but in working through what a human excellence-centered approach to hate speech law might look like. Consequently, in what follows I shall concentrate on what I call the Princi-ple of Human Excellence, that legalistic constraints on uses of hate speech are (N-)warranted if the lawmakers and legal professionals who are responsible for creating them not only display human excellence in their decision-making but also promote human excellence through the creation of these constraints.

As with other principles, I believe that the application of the Principle of Human Excellence to dilemmas posed by hate speech law is improved by de-homogenizing the latter. Robert P. George’s book Making Men Moral (1993) is a good illustration of the failure to do so. In it he defends a virtue-centered approach to jurisprudence according to which ‘sound politics and good law are concerned with helping people to lead morally upright and valuable lives, and, indeed, that a good political society may justly bring to bear the coercive power of public authority to provide people with some protection from the corrupting influence of vice’ (George 1993: 20). Based on this, George argues that ‘[s]omeone who appreciates the human val-ues served by free speech should be unwilling to authorize content-based restrictions on speech unless [. . .] the speech to be restricted is not the sort of speech that makes for true communication and co-operation, but, rather, is something else, such as gratuitous abuse (as when the neo-Nazis march through a neighborhood populated by Holocaust survivors shouting

“send the Jews to the ovens”)’ (198–199). Although his treatment of the neo-Nazi march example suggests that a perfectionist defense of free speech has the wherewithal to justify hate speech law, George is not explicit about the particular sort of law he has in mind. His reference to shouting “send the Jews to the ovens” could imply various different clusters of laws/regulations/

codes that constrain uses of hate speech, including: laws/regulations/codes that criminalize the glorification of mass murder; laws/regulations/codes interdicting hate speech that amounts to the hate crime of incitement to mass murder; laws/regulations/codes that disallow the public expression of hatred through the use of deeply insulting or offensive words or symbols;

and laws/regulations/codes that provide sanctions or remedies against hate speech that comprises a dignitary crime or tort (e.g., the tort of intentional infliction of emotional distress). Consequently, in the remainder of this sec-tion I try to flesh out the connecsec-tion between the Principle of Human Excel-lence and particular clusters of laws/regulations/codes, wherever I believe the justificatory link is especially strong.

Before doing so, however, I need first to address an immediate objection.

It is that there may be many different forms of human excellence implicated in cases of hate speech, and not all these forms would seem to support hate speech law. On the contrary, it might be argued that the victims of hate speech themselves demonstrate considerable human excellence through vir-tues such as self-control, forbearance, endurance of suffering, not playing the victim, independence, and rugged individualism. This being the case, could not institutional authorities who are motivated by the Principle of Human Excellence decide not to resort to hate speech law for the sake of promot-ing these stoical virtues? For example, Henry Gates Jr. argues that when institutional authorities give people legalistic avenues for responding to hate speech—for example, campus speech codes that enable victims to make com-plaints against discriminatory harassment and courts that grant plaintiffs the right to sue for intentional infliction of emotional distress in cases of discrim-inatory harassment in the workplace—they infantilize the victims of hate speech and undermine ‘the older and much-beleaguered American tradition of individualism’ (Gates 1993: 46). Likewise, Donald E. Lively denounces hate speech law ‘as paternalistic methods that reinforce the imagery and real-ity of black dependence upon white kindness’ (Lively 1994: 68–69). Simi-larly, writing of the Skokie Affair, Edward L. Rubin declares that ‘[t]here is a certain dignity and virtue in refusing to respond to provocation of this kind’

(Rubin 1986: 250). Indeed, John Durham Peters (2005) argues that turning to the law represents a squandered opportunity to look into the abyss of evil and neither jump into it (by allowing it to conquer one’s soul) nor shy away from it (by banning it). To stand up against it without relying on the law is to make a virtue out of a bad situation, as a kind of ‘abyss-redemption.’

What these thinkers would prefer, it seems, is for targets of hate speech to be left to get on with the job of dealing with abuse on their own. How-ever, Delgado and David H. Yun resist this sort of ‘toughlove’ argument on two grounds: first, there is an element of virtuous personal responsibility in choosing whether or not to bring a complaint or file a lawsuit and, sec-ond, the people who press this argument would not seriously propose that individuals deal with theft of their property on their own, even though the levels of harm are equally serious (Delgado and Yun 1994: 1819). From the perspective of virtue jurisprudence, I would add that if a university author-ity or a municipal government does decide to enact and enforce campus speech codes that constrain uses of hate speech, for example, then this would not necessarily be problematic if it could be shown to be a good-faith attempt to act in accordance with the Principle of Human Excellence. Thus,

an impartial, wise, and judicious university dean might conclude that since uses of hate speech that constitute acts of discriminatory harassment always realize unwanted human vices but elicit the virtues of stoicism and rugged individualism only to some extent and only some of the time, then it may indeed be appropriate to introduce and enforce campus speech codes.

Intentional Infliction of Emotional Distress as Cruelty

In Ch. 3 [3.1], I examined the optimism of critical race theorists that the tort of intentional infliction of emotional distress could be used as a means of recovery for persons injured by racist verbal abuse. I also noted the fact that US courts have reserved this tort for ‘extreme and outrageous conduct,’

and in many instances have chosen to see racist verbal abuse as falling short of that abstract test. It strikes me that taking an aretaic turn in the opera-tionalization of the extreme and outrageous conduct test could bear fruit. In particular, I would argue that judges (and juries) guided by the Principle of Human Excellence might conclude that the human vice of cruelty should be at least one of the things that qualifies conduct as extreme and outrageous, ²⁶ and interpreting the tort of intentional infliction of emotional distress in terms of cruelty can be useful in N-warranting the application of that tort to cases of hate speech.

If the current proposal is going to work, however, the task must be to capture what cruelty means in the sorts of spheres in which the tort of inten-tional infliction of emointen-tional distress currently operates, and to relate the vice of cruelty to certain uses of hate speech. Judith Shklar has defined cru-elty as ‘the deliberate infliction of physical, and secondarily emotional, pain upon a weaker person or group by stronger ones in order to achieve some end, tangible or intangible, of the latter’ (Shklar 1989: 29). I believe that this definition comes close to the sort of conception of cruelty that could be put to use in defining the tort of intentional infliction of emotional dis-tress, particularly in cases of hate speech. For one thing, it acknowledges emotional pain and not merely physical pain. For another, it captures a typical element of cruelty, an unequal relationship. In cases of cruelty the perpetrator tends to be in a position of strength or dominance, and has it within his or her choice to behave compassionately, while the victim is in a position of weakness or vulnerability, subject to the arbitrary choice of the other person. Nevertheless, I think it would be a mistake to interpret this to mean that only members of powerful ethnic/racial groups can be cruel, and that, for example, if a black person verbally abuses a white person with the terms ‘honky’, ‘whitey’, ‘redneck’ or ‘cracker’, this cannot be cruel. On the contrary, there are surely contexts of speech in which a member of a power-ful ethnic/racial group becomes vulnerable, in which the tables are turned, even if momentarily.

In fact, I propose that the courts should see cruelty as involving a range of characteristic elements . In cases involving the use of insults, slurs, or

derogatory epithets based on someone’s race, ethnicity, nationality, citizen-ship, origin of birth, war record, religion, sexual orientation, gender or transgender identity, disability, age, physical appearance, and so on, these elements might be the following. One is that the injured party did not give consent to the speech acts that are alleged to have been cruel. This might occur if the plaintiff was a ‘captive audience’, for example, in the workplace, a classroom, a dormitory, or a public transit vehicle. A second is that the injured party was in a position of vulnerability, which may have subjective and objective dimensions. A plaintiff may have been vulnerable if, for exam-ple, he was the only non-white person in the workplace and felt socially anx-ious about being “the odd one out.” Alternatively, an injured party may have been vulnerable if her coworkers had an ingroup bias or they looked upon her as somehow weaker or inferior. A third is that the defendant showed indifference toward, or lack of empathy for, the victim’s vulnerable position and for any emotional distress that might be caused by the conduct, choosing to exploit that vulnerability for self-gratification or to cement his or her own status or position. In an extreme case this might involve taunting or ridiculing a person because of his disability. A fourth is that the injured party suffered severe emotional distress as a result of the conduct in question.

I hope that the applicability of the aforementioned elements of the cruelty test to typical cases involving intentional infliction of emotional distress, such as discriminatory harassment in the workplace and on campus, is obvi-ous. After all, anecdotally, it is not uncommon for unions, citizens’ advice agencies, lawyers, and university authorities to invoke the idea of cruelty in an effort to explain the nature of discriminatory harassment to potential injured parties or complainants using layperson’s terms. Potentially this idea can give ordinary people a better handle on what discriminatory harassment involves than the more arcane, technical legal concept of extreme and outra-geous conduct.

I also believe that my proposed cruelty test could be usefully applied to a different sort of case involving hate speech and the intentional inflic-tion of emoinflic-tional distress. In Snyder v. Phelps the plaintiff claimed that the homophobic hate speech (e.g., banners reading ‘God Hates Fags’) employed by Fred Phelps and other members of the Westboro Baptist Church while picketing the funeral of his deceased son (a US Marine) contributed to the intentional infliction of emotional distress. According to the operationalization that I am suggesting, the court could have ruled that the conduct was cruel, showing no mercy toward a vulnerable, griev-ing father. ²⁷ Of course, in the end the Supreme Court ruled that the First Amendment guarantees even speech that intentionally inflicts emotional distress if it pertains to a matter of public interest. On the other hand, Justice Alito insisted that since Snyder was not a public figure, the Court should not have privileged First Amendment values over the right to mourn in peace. ²⁸ On my proposed analysis, the distinction between public fig-ures and private persons is less important than whether or not persons

are vulnerable. Private persons can be vulnerable for all manner of rea-sons, including their emotional state. ²⁹ In the case of public figures, the issue is perhaps more complex. One argument is that they are not vulnerable because they can use their name to attract an audience should they choose to defend themselves with counterspeech. Another is that their vulnerability consists in the fact that their tormentors know far more about the details of their lives than vice versa.

Empathy and Sympathy as a Framework for Innovations in Hate Speech Law

For David Hume, human excellence takes the form of agreeable charac-ter traits or virtues, whereas lack of excellence has to do with vices that we find displeasing. But that is only part of the story. Finding character traits agreeable or displeasing will often rest on deeper sentiments, such as love and hatred. Hume maintains that we tend to find virtues agree-able among the people we love and vices displeasing among the people we hate by virtue of our possession of certain psychological mechanisms, notably empathy and sympathy toward others (Hume [1739–1740] 1984:

625–642). My own interest in the work of Hume is not his meta-ethics per se . Instead, I want to explore whether the psychological mechanisms he identifies might be usefully put to work in the N-warranting of hate speech law. In particular, I wish to propose that empathy and sympathy are not merely causes of people’s judgments of human excellence but are themselves constituent features of human excellence ( qua virtues). What is more, I propose that these features should be not simply exercised but also promoted by lawmakers and legal professionals in their handling of hate speech cases. This, once again, speaks to the rationale behind the Principle of Human Excellence.

I take some inspiration for the approach I have in mind from Jacqueline Taylor’s illuminating essay ‘Humean Humanity Versus Hate’ (2006). In it Taylor attempts to show how appealing to Hume’s moral philosophy can provide the resources for explaining how group hatred emerges and what authorities should do to counter it. Taylor suggests that the Humean con-cept of sympathy ‘works by enlivening a belief about another’s emotion so that we feel the same emotion ourselves, or have some other emotional response to them, for example, admiration in response to someone’s pride in accomplishing a difficult feat’ (Taylor [J.] 2006: 193). However, the nature and direction of a person’s sympathies can be often mediated by bias or prejudice. ‘According to Hume, we naturally love and hate others for fea-tures such as their character, their physical appearance and abilities, and their wealth and power—or lack of these’ (187). Moreover, it is a distinc-tive tendency of human beings to construct and follow ‘general rules’ about what to think and feel about others; that is to say, we put people in boxes.

Yet in many instances we classify or judge other people due to factors that

do not actually bear upon their character or virtue. Here ‘Hume’s descrip-tion lines up with contemporary psychological theory, which refers to the tendency to evaluate one’s own group more favorably in comparison with another, as “in-group bias”’ (190; cf. Crocker and Luhtanen 1990). When our natural emotions are combined with these sorts of prejudices or biases, what results are ‘perverted’ forms of sympathy and even contempt (Taylor [J.] 2006: 187–189). ‘Those who hate others on the basis of perceived mem-bership in a group exhibit a failure to take up or appreciate the perspective of members of the targeted group’ (184). Indeed, ‘[t]he prejudice reflected in hate activity is a particularly virulent form of stereotyping, involving the misattribution of negative traits (e.g., associating skin color with intellectual inferiority) or stigmatizing a feature (such as sexual orientation) shared by members of a group’ (189; cf. Goffman 1963). In addition to this, ‘attitudes of respect and contempt are intensified and sustained by the creation of social distance’ (Taylor [J.] 2006: 190). The systematic use of negative stereo-types and stigmatizing epithets plays a major part in creating and maintain-ing this artificial gap in understandmaintain-ing and regard (188, 191). Accordmaintain-ing to Taylor, ‘Hume’s moral philosophy is notable for advocating extending our natural sympathy in order to adopt a view we can hold in common with others’ (184–185). Put simply, breaking down hatred is a matter of help-ing people to cut through or discard their biases or prejudices by means of adopting the point of view of others. ‘Social psychologists refer to this adoption of the point of view of others as “perspective taking,” and it is often associated with empathy’ (ibid.; cf. Underwood and Moore 1982).

In practical terms, the taking up of this common perspective often depends upon conversation (Taylor [J.] 2006: 196). In Hume’s words, ‘[t]he more we converse with mankind, and the greater social intercourse we maintain, the more we shall be familiarized to these general preferences and distinctions, without which our conversation and discourse could scarcely be rendered intelligible to each other’ (Hume [1751] 2006: 63).

Following on from this, Taylor argues that ‘Hume’s virtue ethics helps us to appreciate the value of [an] educational remedy to hate’ (Taylor [J.] 2006:

183). She has in mind ‘community education about perceived social differ-ences’ (ibid.). Taylor has much less to say about legalistic instruments for

183). She has in mind ‘community education about perceived social differ-ences’ (ibid.). Taylor has much less to say about legalistic instruments for