Hate Speech Law

A Philosophical Examination

Alex Brown

• Publisher: Routledge
• Year: 2015
• Edition: 1
• eBook ISBN:
  9781317502364
• Topic: Philosophy
• Subtopic: Political Philosophy

Hate speech law can be found throughout the world. But it is also the subject of numerous principled arguments, both for and against. These principles invoke a host of morally relevant features (e.g., liberty, health, autonomy, security, non-subordination, the absence of oppression, human dignity, the discovery of truth, the acquisition of knowledge, self-realization, human excellence, civic dignity, cultural diversity and choice, recognition of cultural identity, intercultural dialogue, participation in democratic self-government, being subject only to legitimate rule) and practical considerations (e.g., efficacy, the least restrictive alternative, chilling effects). The book develops and then critically examines these various principled arguments. It also attempts to de-homogenize hate speech law into different clusters of laws/regulations/codes that constrain uses of hate speech, so as to facilitate a more nuanced examination of the principled arguments. Finally, it argues that it is morally fitting for judicial and legislative judgments about the overall warrant of hate speech law to reflect principled compromise. Principled compromise is characterized not merely by compromise over matters of principled concern but also by compromise which is itself governed by ideals of moral duty or civic virtue (e.g., reciprocity, equality, and mutual respect).

The Open Access version of this book, available at https://doi.org/10.4324/9781315714899, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

1
Introduction

Hate speech law has been the subject of numerous principled objections. It has been denounced by some legal scholars and practitioners as, among other things, devastating to liberty, disrespectful to autonomy, stifling to the discovery of truth and the acquisition of knowledge, inhibiting to self-realization, antithetical to free participation in the formation of public opinion, a threat to the legitimacy of the state, ineffective, unnecessary, and responsible for chilling forms of valuable speech. But at the same time, it is difficult to name a single country that possesses no hate speech law whatsoever or, at least, a country that possesses no laws/regulations/codes that constrain uses of hate speech. If the detractors are to be believed, then almost the entire world is both deluded and gratuitously unfree.

For their part, proponents maintain that hate speech law can, among other things, help to avert damage to people’s health (psychological and physiological), safeguard autonomy (substantive, if not formal), reduce insecurity (objective and subjective), emancipate people from subordination, stand as a bulwark against oppression, underpin human dignity, protect and give public assurances of civic dignity, ensure recognition of cultural identity, facilitate respectful intercultural dialogue, and furnish real access to participation in the formation of democratic public opinion for all. Not only that, many legislatures and courts across the world have determined that hate speech law can be effective, necessary, and limited in its chilling effects.

So the first main goal of this book is to articulate, clarify, and formalize these and other related principled arguments. I shall do so by grounding them in a collection of key normative principles. These are normative in the sense that they articulate propositions intended to serve as bases for chains of reasoning about whether or not legalistic constraints on uses of hate speech—which is to say, institutionally backed and more often than not coercive, legalistic, and quasi-legalistic restrictions—are warranted. Although I shall treat principles as the main units of evaluation, it bears emphasis that these principles are only important by virtue of safeguarding or serving normatively relevant features. I shall say more about the content of the latter in a moment. It also deserves mention that making a plurality of principles the main units of evaluation is not an uncommon strategy in normative philosophy. Principles have been used in similar ways in the theory of moral conduct (e.g., Audi 2004) and in the theory of social justice (e.g., Miller 1999), so why not in the theory of the moral limits of the criminal law (e.g., Feinberg 1984, 1988, 1989, 1990) and, more specifically, in the theory of freedom of expression and its limits? At any rate, I think it would be a serious error to presume that those people who reject hate speech law do so exclusively on the grounds of principle, whereas those people who defend hate speech law do so exclusively on the grounds of mere policy, with everything this implies about the relative normative importance of principle and policy (cf. Dworkin 1985; Heyman 2008). On the contrary, there are principled arguments on both sides of the debate.

I also believe that because there are principled arguments on both sides of the debate, in the end much comes down to which key normative principles are being used to attack or defend which hate speech laws, and in relation to which contextual circumstances. With this in mind, the second main goal of the book is to disaggregate hate speech law into different clusters of laws/regulations/codes that constrain uses of hate speech, so as to facilitate a more accurate and nuanced examination of the principled arguments. In other words, we must improve our understanding of the heterogeneity of hate speech law before we can hope to succeed in figuring out whether or not such law is warranted. In particular, I wish to combat two unwelcome tendencies in the literature. While much legal scholarship in this area concentrates on the intricacies of specific jurisdictions, laws, and legal rulings, and demurs from making broader generalizations about hate speech law, a good deal of the philosophical literature has been guilty of presenting overly generalized arguments about the merits and demerits of hate speech law, as though arguments that pertain to one sort of law/regulation/code must obviously pertain to all laws/regulations/codes. This matters because, as I shall try to show, principles that appear to warrant hate speech law typically lend greater justificatory credence to some clusters of laws/regulations/codes than others; conversely, principles that purport to rule out all hate speech law are, on closer inspection, devastating against some clusters of laws/regulations/codes but relatively helpless against, or inappropriately applied to, others. In addition to this, I shall seek to move beyond another oversimplification that says the only thing that matters is which principled argument is being used to attack or defend which type of hate speech law. As well as considering the nature, form, and content of hate speech, it is vital to consider the context in which hate speech occurs. In particular, I accept the line of thought that says whether or not hate speech law is warranted partly depends on whether or not, and how, law is applied to given contextual circumstances, not the least of which are the particular institutions and social practices in which hate speech occurs.¹

Having said that, even if one adds specificity to the debate on hate speech law by distinguishing between different clusters of laws/regulations/codes and by pairing up clusters with the most germane normative principles, while also paying attention to the contextual circumstances in which hate speech occurs, this is unlikely to be sufficient to resolve principled dilemmas. More often than not, if institutional authorities decide to enact or enforce a certain hate speech law in a given context, they are bound to be honoring some normative principles but sacrificing others. But if they choose instead to refrain from enacting or enforcing a certain hate speech law in a given context, they are also bound to be honoring some normative principles while sacrificing others. Consequently, the third main goal of the book is to articulate and defend a particular way of resolving these sorts of principled dilemmas.

Before stating what my approach is, however, I first need to draw a distinction between two kinds of warrant. One kind of warrant is concerned with whether or not a law/regulation/code is prima facie justified, authorized, sanctioned, supported, or rendered permissible by the contribution it makes to a given normatively relevant feature, such as a right, interest, good, or value. When a principle specifies whether a law/regulation/code is prima facie warranted or unwarranted with reference to a given normatively relevant feature—meaning that the principle’s verdict holds unless it is overridden or trumped by another principle which itself may highlight a different normatively relevant feature—I shall call this narrow warrant or N-warrant, for short. Of course, the larger the number of relevant principles, the lower the chances that any law/regulation/code will be N-warranted by each and every relevant principle. In the main, legislatures, courts, and regulators will be called upon to decide between a law/regulation/code that is N-warranted by one or more principles but also N-unwarranted by one or more principles. A second kind of warrant is tailored to addressing precisely these sorts of dilemmas. It requires overarching determinations of whether a law/regulation/code is warranted or unwarranted based on every relevant principle. I shall call this all principles considered warrant or overall warrant, that is, O-warrant, for short. Judgments of O-warrant can be non-comparative, such that it could be said of a law/regulation/code that it is overall warranted when viewed by itself, or comparative, such that it can be said of two laws/regulations/codes that one achieves greater overall warrant than the other. But either way, it seems to me that judgments of overall warrant lie at the heart of resolving dilemmas around hate speech law. One challenge for the legal philosopher, then, is to provide a compelling theory of the nature of these judgments.

By connecting overall warrant to a diverse range of principles, including not only principles concerned with basic human values but also legal principles that are concerned with issues of efficacy and justiciability, I am consciously situating the book in a tradition of scholarship on free speech and its limits that is alive to both moral and practical considerations (e.g., Packer 1968: 296; Cohen [Joshua] 1993: 262; Shiffrin [S.H.] 1999: 80–85; Sumner 2004: 185; Heyman 2008: 180). Nevertheless, the fact that judgments of overall warrant depend on assessments of different kinds of principles raises a question about whether or not such judgments can be meaningful and non-arbitrary. It may be tempting at this stage to say that the overall warrant of a given law/regulation/code is either a matter of satisfying an order of lexical priority among principles (such that the top principle must be satisfied come what may, and the next principle is only there to break ties) or about balancing principles (meaning that a little more success in satisfying one principle can be traded off against a little less success in satisfying another). I find neither alternative plausible. Instead, I shall argue that reaching judgments about the overall warrant of laws/regulations/codes that constrain uses of hate speech should be done on the basis of principled compromise. Principled compromise is characterized not merely by compromise over matters of principled concern but also by compromise that is itself governed by ideals of moral conduct. The ideals I have in mind are reciprocity, equality, and mutual respect (ideals that have been much discussed in various contemporary academic literatures, not the least of which is work on judicial ethics and virtue jurisprudence, deliberative democracy, discourse ethics, and communicative virtue). Articulating and defending a theory of overall warrant as principled compromise, then, is the third main goal of the book.

Before I can begin to pursue these three main goals in earnest, however, I first need to provide some important clarifications. For the purposes of this book I shall be guided by an essentially legalistic understanding of hate speech. Even putting to one side extralegal accounts of the nature of hate speech that have emerged from the disciplines of applied linguistics, discourse analysis, sociology, and social psychology, it is important to recognize that the jurisprudential literature alone contains numerous competing, sometimes contradictory characterizations of hate speech (e.g., Matsuda 1989b: 2357; Sherry 1991: 933; Coliver 1992: 363; Schauer 1992a: 1349; Smolla 1992: 152; Lawrence et al. 1993: 1; Glasser 1994: 1; Lederer and Delgado 1995: 4–5; Sullivan and Gunther 1995: 1131; Alexander 1996: 71; Brison 1998a: 313; 2013: 2332; Nockleby 2000: 1277; Vasquez and de las Fuentes 2000: 226; Corlett and Francescotti 2002: 1083; Miller 2003: 67, 218; Sumner 2003: 142; Parekh 2005–2006: 214; Cohen-Almagor 2006a: 153; Mahoney 2009: 325–326; Post 2009: 127; Lee 2010: 22; Waldron 2010: 1600; Fraleigh and Tuman 2011: 139; Yong 2011: 386; Gelber 2012a: 213; Langton 2012: 74–77). Nevertheless, I believe that in all of these cases the author is seeking, either explicitly or implicitly, to offer a characterization of the sort of speech or other expressive conduct that is, or has been at one time, the subject of laws or regulations. At any rate, the overall impression created by these characterizations is of speech or other expressive conduct that is in some sense intimately connected with hatred of members of groups or classes of persons identified by certain ascriptive characteristics (e.g., race, ethnicity, nationality, citizenship, origin of birth, war record, religion, sexual orientation, gender or transgender identity, disability, age, physical appearance), where this connection is exemplified by familiar tropes relating to hatred in the motive, content, or effect of the relevant speech or other expressive conduct.²

In the book I shall use the term ‘speech or other expressive conduct’ so as to cover not only words, written or oral, but also symbols, pictures, gestures, music, moving images, or any conduct that is intended to express or is reasonably regarded as expressive of meaning.³ Of course, it is possible to give the word ‘expression’ a restrictive definition such that not all speech conduct counts as expression so defined. Under a restrictive definition, the putative conflict between the right to freedom of expression and laws/regulations/codes that constrain uses of hate speech that qualify as speech plus, illegal conduct, or speech conduct that has a purely emotional effect, for example, evaporates. This book does not seek to exploit such strategies, however.⁴ Instead, I intend to treat all laws/regulations/codes that constrain uses of hate speech as potentially imposing a genuine cost in freedom of expression. Otherwise, any progress made in justifying legalistic constraints is liable to be rejected by civil libertarians as premised on a terminological sleight of hand.

Furthermore, I shall use the term ‘hate speech law’ in an inclusive way to mean laws/regulations/codes that tend, either directly or indirectly, to constrain at least some uses of hate speech. This concept or notional configuration is meant to capture not only laws/regulations/codes that are ostensibly aimed at constraining, suppressing or limiting hate speech but also laws/regulations/codes that impose incidental restrictions on some uses of hate speech, meaning laws/regulations/codes that, although aimed at the instruments or circumstances of speech or at certain forms of conduct, nevertheless thereby also restrict some uses of hate speech.⁵ I shall also use the term ‘laws/regulations/codes’ in a deliberately broad way to capture various types of laws, regulations, rules, codes, and standards within both common law and civil law systems, and pertaining to public and private legal and quasi-legal institutions. The relevant means of coercion may include criminal punishments, civil liability, regulatory sanctions, regulatory rulings over the removal of content, orders to refrain from speech conduct of a certain sort, and even the prevention of speech through the denial or revocation of an individual’s right to remain within the borders of a country.⁶

By referring to principles rather than to a single principle, I do not mean to overlook the fact that there are approaches to free speech and its limits that posit a single principle (or perhaps two principles) that serves or safeguards a single normatively relevant feature. Consider monist approaches that, respectively, concentrate on self-realization (e.g., Redish 1982), deliberative democracy (e.g., Sunstein 1993a), political legitimacy (e.g., Dworkin 2012), or autonomy (e.g., Baker 1989; 2009; 2011). Instead, I refer to principles to signal both the fact that I endorse principle pluralism and the fact that I am committed to value pluralism. Together, the key normative principles to be discussed in this book serve, protect, uphold, honor, enshrine, or enact a range of rights, interests, goods, and values. Some of the principles relate to a single normatively relevant feature, while others are concerned with multiple features. Some are fundamental principles, whereas others are derivative of, or instrumental for, fundamental principles (cf. Schauer 1982: 3–4; Dworkin 1977: 180; 1978: 116–117, 125–126). Although some are dependent upon a particular body of law or legal institution, others transcend any particular bodies of law or institutions (cf. Scanlon 1972: 205–206). Some, but not all, principles may strike people as self-evident, meaning that they do not require further evidence or support, but most are non-axiomatic. Some are rooted in mainstream traditions of legal and political thought, others less so. Some reflect legal thinking within certain countries, while some appear to be more universal. Some of the principles might be regarded as black letter laws within certain legal jurisdictions, but most remain open to dispute. Nevertheless, all of the normative principles that I shall discuss, in my view, have the potential to be epistemically justified in the sense that it may be appropriate to regard them not merely as the subjects of moral belief but as the objects of moral knowledge if the people who believe them have acted in epistemically responsible ways, meaning that they have done everything they should have done to hold true principles.⁷

The normatively relevant features to be discussed in this book will be the sorts of fundamental rights, vital interests, and basic human goods and values that are, or should be, matters of deep and enduring concern to all human beings: namely, liberty (negative and positive), health (psychological and physiological), autonomy (formal and substantive), security (objective and subjective), non-subordination, the absence of oppression, human dignity, the discovery of truth, the acquisition of knowledge, self-realization (in its various incarnations), human excellence, civic dignity, cultural diversity and choice, recognition of cultural identity, intercultural dialogue, participation in democratic self-government, and being subject only to legitimate rule. Of course, I do not mean to imply that this list is exhaustive or uncontroversial.⁸ Instead, I simply wish to make clear what is to be considered in the course of this book, with its focus on hate speech law. Clearly this is also an eclectic list,⁹ and I shall try to bring out some of the implications of this eclecticism in Chs. 8 [8.2] and 10 [10.1].

Now it might be worried that freedom of expression and equality are absent from the previous list of normatively relevant features. After all, hate speech law is often characterized as creating a conflict between freedom of expression and equality (e.g., Massaro 1991; Blim 1995; Hemmer 1995; Powell 1996–1997; Goodpaster 1...

Table of contents

• Cover
• Half Title
• Series Page
• Title
• Copyright
• Dedication
• Contents
• Table of Cases
• Acknowledgments
• 1 Introduction
• 2 Ten Clusters of Laws/Regulations/Codes That Constrain Uses of Hate Speech
• 3 Principles of Basic Morality
• 4 Principles of Personal Development
• 5 Principles of Civic Morality
• 6 Principles of Cultural Diversity
• 7 Principles of Political Morality
• 8 Principles of Balance
• 9 Principia Juris
• 10 Toward a Theory of Principled Compromise
• 11 Conclusion
• References
• Index