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Does Freedom of Speech Include Hate Speech?

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I take it that liberal justice recognises special protections against the restriction of speech and expression; this is what I call the Free Speech Principle. I ask if this Principle includes speech acts which might broadly be termed ‘hate speech’, where ‘includes’ is sensitive to the distinction between coverage and protection, and between speech that is regulable and speech that should be regulated. I suggest that ‘hate speech’ is too broad a designation to be usefully analysed as a single category, since it includes many different kinds of speech acts, each of which involves very different kinds of free speech interests, and may cause very different kinds of harm. I therefore propose to disaggregate hate speech into various categories which are analysed in turn. I distinguish four main categories of hate speech, namely (1) targeted vilification, (2) diffuse vilification, (3) organised political advocacy for exclusionary and/or eliminationist policies, and (4) other assertions of fact or value which constitute an adverse judgment on an identifiable racial or religious group. Reviewing these categories in the light of the justifications for the Free Speech Principle, I will argue that category (1) is uncovered by the Principle, categories (2) and (3) are covered but unprotected, and that category (4) is protected speech.

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Notes

  1. There is a view within the debates about free speech theory which expresses a general scepticism about any special principle of or right to freedom of speech and expression. Examples include Brison (1998b) and Alexander (2005). My argument in this article is not addressed to such sceptics; it is addressed rather to those who accept the Free Speech Principle and wish to understand its implications for the permissible regulation of hate speech. I thank an anonymous reviewer for Res Publica for urging me to address this sceptical view.

  2. Some, including Susan Brownmiller (1975) and Catherine MacKinnon (1993), have argued that certain forms of pornography constitute hate speech against women. My focus in this article will exclude pornography, since it is a quite different kind of communication and will require a distinct analysis. I must note, however, that in developing Ronald Dworkin’s views on free speech I have drawn significantly on his discussion of pornography in Dworkin (1981).

  3. For a similar disjunctive definition of hate speech, see Brison (1998a, pp. 313–314). I do not claim that my categorisation of hate speech is exhaustive; as I noted above, I leave open the question of whether pornography constitutes hate speech against women, for example. Like Brison, I rely on this disjunctive schema only because I believe it represents a useful analytical framework.

  4. Cohen defines ‘nihilism’ as the view that decisions about restricting or permitting speech simply come down to ‘an ad hoc weighing of costs and benefits in particular cases’. Such ad hoc weighing will not give any special or presumptive weight to reasons protective of speech.

  5. This has the implication, noticed by Scanlon (1972, p. 204), that whereas it would normally be a sufficient justification for some restriction that it prevents harm, in some—perhaps many—cases where speech is concerned, a showing of harm will not in itself provide sufficient justification for legal restrictions.

  6. See for example Rawls (1993), Lecture VIII. For this reason, I do not believe that my conception of the FSP is vulnerable to the scepticism about a plausible speech/conduct distinction expressed in Brison (1998b).

  7. See my comments in note 3 and the discussion in Maitra and McGowan (2007, pp. 44–46).

  8. For example, if some racist hate speech is unprotected (and therefore regulable) because it causes serious harms to its targets, but it is discovered that such restrictions on speech would be counter-productive in controlling the harm of racist speech, then such speech should not be regulated.

  9. Scanlon (2003, pp. 85–88) suggests this tripartite distinction between participants (what I call ‘speakers’), audience and bystanders. I will adopt a slightly adapted version of this schema. Briefly, the speaker is the originator of the communication, the audience is the immediate intended recipient of the communication, and the bystanders are those who are exposed to the communication and/or its effects, but are not the immediate intended recipients.

  10. This claim can be found in Justice Holmes’ opinions on free speech theory, such as his dissent in Abrams v. United States, 250 U.S. 616 (1919).

  11. I believe this to be the crucial argument in Chap. 2 of Mill (1859–1989).

  12. It has been pointed out to me that the argument from democracy could also be conceived as a consequentialist justification for free speech. This seems to me correct, in the sense that there are generally two appropriate state responses to the recognition of an individual right: the state should not only respect that right, but should also promote the conditions under which it can be meaningfully exercised. This was precisely a feature of the right to personal autonomy and self-development that we noticed earlier. In this section, I will be concerned primarily with the non-consequentialist concern that the government respect each citizen’s right to democratic participation. I believe the consequentialist concern to promote the conditions favourable to the meaningful exercise of that right are largely covered by the argument from the discovery of (political) truth discussed in an earlier section. I thank a reviewer of Res Publica for pressing me on this point.

  13. For example, Sunstein (1993, p. 122) defends a ‘Madisonian ideal’ according to which the constitutional protection for freedom of speech ‘is focused first and foremost on political deliberation’.

  14. See generally Dworkin (1977) and Dworkin (1981). I have learned here from the discussion of Dworkin’s theory of rights in Section I of Langton (1990).

  15. Note however that the legal doctrine of viewpoint neutrality is much broader than the doctrine of neutrality between competing conceptions of the good life that features in Dworkin’s conception of liberal justice.

  16. As this last example shows, targeted vilification also includes symbolic speech. Indeed, this is the case for all the categories of hate speech.

  17. Cohen v. California, 403 U.S. 15 (1971). Cohen was convicted for wearing a jacket with the words ‘Fuck the Draft’; the Supreme Court overturned his conviction on the grounds that the use of profanity was an inextricable part of Cohen’s message, which had cognitive and emotive elements, both of which were protected by the First Amendment.

  18. On this point, see Schauer (1982, pp. 50–56).

  19. For the Skokie example, see the case of Village of Skokie v. National Socialist Party, 51 Ill. App. 3d 279, 366 N.E. 2d 347 (1977). For the mock slave auction example, see Brink (2001, p. 132).

  20. For example, in the case of the mock slave auction, the immediate audience could be said to be the other fraternity members, but arguably the real intended recipients of the message of this speech act were African-American students at the university.

  21. Note the significance of the choice of Skokie as the venue for the march. A march in Nazi uniforms through Los Angeles, or Washington DC., would not constitute diffuse vilification but would rather be political speech. The choice of a 60% Jewish village suggests that ‘the point was deliberately and maliciously to affront the sensibilities of the Jews in Skokie, to insult them, lacerate their feelings, and indirectly threaten them’ (Feinberg 1985, p. 86).

  22. See Post (1990, pp. 296–298) on how attempts to characterize the appropriate social meaning of a particular race constitutes the covered speech of evaluative opinion.

  23. Brison (1998a, p. 335) also notes that since we do not expect potential victims of physical assaults or rape to attend self-defence courses to render themselves less vulnerable to attack, it is not clear why we should expect victims of hate speech to bear the costs of ‘avoiding’ such verbal assaults.

  24. R.A.V. v. City of St. Paul (1992), 505 U.S. 377.

  25. See on this point Brison (1998a, p. 325), who stresses that restrictions on hate speech are typically motivated by a concern to avoid or reduce wrongful harms to victims of such speech, not by moral disapproval of those who engage in hate speech. Indeed, Dworkin (1981, pp. 195–196) himself seems to accept that regulations which aim at preventing harm do not offend the right of moral independence, since the justification for such restrictive laws would not be based on a judgment that speakers (or members of the audience) ‘are worse people’.

  26. As such, it must be stressed that it is organised, explicitly political speech—and not general evaluative opinions—which is relevant to this category.

  27. David Miller has pointed out to me that while it may seem plausible to say that restrictions on anti-democratic speech are permissible in cases where such speech will lead to the imminent collapse of democracy or to the subversion of its fundamental value of political equality, it seems clearly impermissible to restrict pro-libertarian speech, even if such speech will lead to the implementation of libertarian institutional arrangements, to the detriment of social justice. How are we to explain which violations of liberal justice may permit restrictions on speech, and which may not? This is an important challenge, and unfortunately one I cannot fully meet here. As a preliminary answer, I suggest that the relevant standard is not in fact liberal justice but legitimacy: speech which leads to outcomes which would be not only be unjust but illegitimate may be restricted, whereas speech that leads to outcomes that would be unjust but not illegitimate may not be.

  28. I remind the reader here that this category of hate speech is defined precisely to cover only those cases where there is a real possibility and high likelihood that these policies will be accepted and enacted.

  29. This argument has been echoed by Brison (1998a, p. 329), who suggests that on a contractualist framework, ‘rational, autonomous contractors would choose to allow that such speech [which induces certain people to commit seriously harmful acts] be regulated in light of the seriousness of the harms that they be subject to as victims of such speech’.

  30. See for example Brison (1998a, p. 315) and Lasson (1984).

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Acknowledgments

For helpful comments on earlier versions of this article, I am grateful to Phil Parvin, Melissa Lane, David Miller, and to an anonymous reviewer for this journal. My argument in this article has also benefitted from discussion at the Nuffield Political Theory Workshop at Nuffield College, Oxford and the York Political Philosophy Postgraduate Conference at the University of York. My particular thanks to T. R. S. Allen, who supervised the research from which this article originated.

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Yong, C. Does Freedom of Speech Include Hate Speech?. Res Publica 17, 385–403 (2011). https://doi.org/10.1007/s11158-011-9158-y

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