Abstract
The paper’s main goal is to compare laws banning hate speech with counterspeech as an effective method of curtailing hate speech. In the first part, the paper discussed three normative justifications for hate speech bans. Firstly, the line of argument developed by critical race theorists that assumes that hate speech leads to the direct harm and violation of individuals’ rights. Secondly, paper examines the Weimar model that rests on the assumption that hate speech can lead to indirect harm to members of vulnerable minorities by creating a toxic environment, which opens the door to discrimination and even violence. Thirdly, the justification which is derived from the idea that such forms of extreme public speech violate the basic values and principles – such as inclusiveness, equality and mutual respect - on which constitutional democracies are built. This approach extends its argument from general values to the status of citizens by arguing that hate speech violates the equal standing of citizens by attempting to exclude certain members of society from the process of democratic deliberation based on their ascriptive characteristics. The second part of the paper looks at counterspeech as an efficient approach to limit harms that arise from hate speech. The author argues that legal bans should be reserved only for the most extreme forms of hateful rhetoric, while counterspeech is a valid option for tackling all other forms of hate speech.
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Notes
Both defendants were convicted of genocide, not of public incitement to commit genocide. For criticism of this ruling, see: Baker 2012, pp. 155–156.
It is worth noting, that only racial laws targeting Jewish people in Germany are a clear example of depriving a minority of their legal rights, in the other three cases cited by Tsesis – slaves in Mauritia, slaves in the antebellum South and Native Americans – the targets of discrimination never had equal rights to begin with. Of course, Tsesis could be referring here to the deprivation of natural or human rights of these minorities.
This, for examples, is a position defended by Julie C. Suk when she points out that in France in most cases of Holocaust denial, offenders face criminal fines, not prison sentences and all of Holocaust denial literature is still available in libraries, which “supports the conclusion that the main function of criminalizing Holocaust denial is to strongly express the state’s moral outrage rather than to silence an unpopular viewpoint” (2012, p. 151).
Although not explicitly arguing for the two-tier model, elements of this approach can be found in Parekh 2012 and Bader 2014. Parekh argues that stable democratic societies “have several mechanisms to cope with hate speech and its consequences, such as an open and competitive economy, a vibrant civil society, a reasonably cohesive and integrated society, a varied media representing a wide spectrum of views, and a plural and self-limiting public culture. They can, therefore, afford to assign law a relatively limited role” (2012, p. 55). Similarly, Bader advocates for legal sanctions when facing extreme cases of “incitement to violence and […] incitement to discrimination”, but that “we should try to fight the root causes of racist, ethno-centrist and religious violence and discrimination by the whole set of alternative non-legal responses” (2014, p. 335).
There are two important differences worth noting between Brettschneider’s position and the position I am defending. First, Brettschneider argues that no speech should be banned of the basis of its content, while I maintain that speech that invokes violence and discrimination against members of certain groups should be legally prohibited. Second, for Brettschneider the main purpose of the state’s counterspeech against hateful utterances is to try and “change the minds of those who reject the values of free and equal citizenship” (2010: 1012), while I argue for the use of counterspeech by the state’s actors as a way to diminish the harmful effects of hate speech. On this second point see, Lepoutre: “I am concerned less with state-based counterspeech’s ability to persuade hate speakers and others, and more with its ability to block hate speech’s attempted assault on the dignity of its targets […] In decrying detestable speech, the state is reassuring its targets“ (2017:10).
This approach of ranking different types of hate speech and proscribing different levels of legal and policy regulation to them depending on the severity of their impact is advocated in both the UN’s Rabat Plan of Action for 2012 and the European Commission against Racism and Intolerance (ECRI) General Policy Recommendation No. 15 from 2016 (ECRI, 2016).
The political culture of counterspeech I am advocating here is much less restrictive than the culture of political correctness which entails not only the policy of speaking back, but also more penalizing measures such as loss of one’s job, cancellations of public speaking or book publishing deals, hindrance of person’ career advancement, etc.
This explanation is, given the brevity of an article, inevitably somewhat simplified. First, a society where the culture of counterspeech reigns supreme and a society where the culture of intolerance prevails are two opposite extremes, but in the real world, it is reasonable to assume that most democratic societies would fall somewhere in between these two extremes. Second, even in a society where the culture of counterspeech has become the norm, we can assume that there might be areas where the demands of such a culture are ignored. This danger would be most pertinent in deeply polarized societies. I would like to thank a reviewer for pointing this out.
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Acknowledgements
An early draft of this paper was presented at the ECPR Joint Session Freedom of Speech: How Much Is Too Much? in April 2020 in Toulouse, France. I would like to thank all the participant for their comments, especially Teresa Bejan, Corrado Fumagalli and Maxime Lepoutre. I would also like to thank anonymous reviewers for their suggestions and remarks.
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The research leading to these results received funding from the University of Zagreb (research project “Hate Speech in Croatia”).
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Kulenović, E. Should Democracies Ban Hate Speech? Hate Speech Laws and Counterspeech. Ethic Theory Moral Prac 26, 511–532 (2023). https://doi.org/10.1007/s10677-022-10336-2
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DOI: https://doi.org/10.1007/s10677-022-10336-2