Does Freedom of Speech Include Hate Speech? | SpringerLink

Does Freedom of Speech Include Hate Speech?
Abstract
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.
Working on a manuscript?
Introduction
I take it that there is a principle in political morality, on the liberal conception of that morality, which specially protects the freedom of speech—what I will call the Free Speech Principle.Footnote 1 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. ‘Hate speech’, as a broad designation, is speech which attacks others on grounds of their race, nationality, religious identity, gender, sexual orientation or other group membership, where this group membership is a morally arbitrary distinguishing characteristic.Footnote 2 But this broad definition of ‘hate speech’ is unsatisfactory since different kinds of speech acts, all of which may plausibly be termed ‘hate speech’, involve very different kinds of free speech interests, and may cause very different kinds of harm. It seems plausible to think, therefore, that the appropriate response to different kinds of hate speech will differ from case to case. I therefore propose an analysis by categories and adopt a disjunctive definition of hate speech—i.e. I take ‘hate speech’ to mean discriminatory speech which falls into any one of the categories I identify.Footnote 3
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 (1) is uncovered by the Principle (2) and (3) are covered but unprotected, and that (4) is protected speech.
The Free Speech Principle
I discount what Cohen (1993, pp. 210–211) calls the ‘nihilist’ position on free speech and assume that there is a principle in political morality—at least on a liberal conception of justice— which recognises special protections for freedom of speech, which I call the Free Speech Principle (henceforth FSP).Footnote 4 Note here that nothing turns on my use of ‘freedom of speech’ and ‘free speech’ instead of ‘freedom of expression’. The FSP is concerned not only with verbal communication but also with acts which do not, in ordinary language, constitute speech, such as the wearing of black armbands to protest the Vietnam War, or holding a silent protest. The Principle covers all acts—with certain important exceptions which will be explored below—which intend to communicate some message.
Following Schauer (1982), Greenawalt (1989a), Scanlon (1972), and others, I understand the FSP to be a distinct principle which goes beyond a general principle of negative liberty such as that defended by Mill (1859–1989), or the broader principle that government ought not to restrict the liberty of individuals without sufficient justification. This greater protection can be thought of in terms of requiring a more stringent standard of justification for the restriction of speech than for other activities. A good formulation is provided by Schauer (1982, pp. 7–8): ‘Under a Free Speech Principle, any governmental action to achieve a goal… must provide a stronger justification when the attainment of that goal requires the restriction of speech than when no limitations on speech are employed’.Footnote 5
Notice that on my conception of the FSP, I do not place any special weight on the distinction between speech and conduct: the claim is only that speech covered by the FSP attracts greater protection from legal restrictions; it may be that certain kinds of conduct—such as the conduct at issue in the freedom of association, the free exercise of religion and freedom of movement—also attract special protection of this kind. For example, following John Rawls’s influential theory of justice as fairness, one might hold that the basic liberties attract this heightened standard of protection against restriction in favour of other values.Footnote 6
Coverage, Protection and Regulable Speech
Recall that, when asking if the FSP ‘includes’ hate speech, we should be attentive to the distinction between the coverage and the protection offered by the Principle, and between speech that is regulable and speech that should be regulated. I will elucidate both distinctions in the following sections.
Coverage Versus Protection
Certain speech acts fall outside the scope of the FSP. The clearest examples are crimes like perjury, bribery, insider trading, solicitations to commit crimes, or indeed ‘the communication between the average bank robber and the teller he confronts’ (Scanlon 1972, p. 207). Such speech acts, which are so unrelated to any conceivable justification for free speech that they do not arouse even the minimal concern of the FSP, are outside what Schauer (1982, pp. 89–92) calls the coverage of the FSP and are said to be uncovered speech. The restriction or regulation of uncovered speech is therefore usually unproblematically compatible with the FSP; a simple showing of harm will be enough to justify regulation, for example.
However, it is not conversely true that all covered speech cannot, consistently with the FSP, be restricted or regulated—some covered speech is unprotected. Since, as we have seen, the FSP offers protection to some speech that is harmful, a mere showing of harm is not enough for speech to be deemed unprotected. Speech is unprotected when, though it advances some of the interests and values that the FSP is intended to protect, as stipulated in the various free speech justifications, these are clearly outweighed by other compelling interests, such as the prevention of very serious harms or wrongs to the intended hearers, or to society at large. A classic example of unprotected speech would be defamation.
I stress here that within the coverage of the FSP (and the protected/unprotected distinction is made within the class of covered speech), speech does not become unprotected simply when ad hoc weighing of the benefits and harms reveals that regulation tends to produce greater benefit than harm—there must be a compelling interest or counter-value in favour of regulation which would survive a more stringent demand for justification than for uncovered speech or non-speech activities. Otherwise, the FSP would have no special role or force in our practical reasoning.Footnote 7 Thus, the judgment that defamation constitutes unprotected speech is not simply the judgment that defamatory statements tend on balance to be harmful. Rather, the judgment is that they (wrongfully) harm the defamed to such an extent that, even when free speech values are taken seriously, restrictions on defamatory speech are justified.
Regulable Speech Versus Speech that Should be Regulated
Speech that is uncovered or unprotected is regulable, while covered speech that is protected is not regulable. Speech is regulable when it can be regulated or restricted through legal and institutional means without violating the FSP. This, however, is not a conclusive reason to actually regulate that speech. Regulable speech may be regulated, but speech should be regulated only when there is good reason, all things considered, for regulation. It may be that regulable speech, for reasons independent of free speech concerns, should not be regulated.Footnote 8
In this article, I will not directly address the question of whether hate speech should be regulated, but rather whether it is regulable. As such, I make no claim that the conclusions I draw—namely that some forms of hate speech are regulable—have direct implications for legislation restricting hate speech. It may be that it is impossible to design legislation that will effectively control regulable hate speech without falling into the trap of over-breadth. Or it may be that legal regulation is not an effective way to control the harms of regulable hate speech. Or again it may simply be unwise to assign to the government and state officials the authority to regulate even regulable forms of hate speech because they are very likely to abuse their authority. I will not be concerned with these possibilities in my present discussion.
I would note, moreover, that although some regulable hate speech may be for whatever reason not amenable to legal control, the finding that such speech is regulable may nevertheless rightly attract a distinctive kind of concern, and this concern may properly motivate responses other than specifically legal or institutional restriction, responses which go beyond merely offering objections or rebuttals to such speech in debate and discussion. In particular, it may justify as compatible with free speech values the application of certain kinds of social pressures which aim at controlling or suppressing the relevant regulable hate speech.
Justifications for the Free Speech Principle
If the FSP as a distinct and significant doctrine sometimes protects speech even when it produces harm, then the FSP must be supported by distinctive and significant justifications. Such justifications fall under two broad strategies. One strategy is to argue that, because of some value or interest which speech promotes, allowing speech will bring special benefits which will trump, overall, the harm it produces. Call such views consequentialist justifications for free speech. The second strategy is to hold that certain restrictions on speech, or certain reasons for restricting speech, impermissibly violate some right of the speaker(s), the audience or bystanders.Footnote 9 Call such views non-consequentialist justifications for free speech, or following Dworkin (1981, p. 178), rights-based strategies.
I will consider four main justifications commonly offered for the FSP. The main consequentialist justifications are (i) the argument from the discovery of truth, and (ii) the argument from self-fulfilment and personal development. The main non-consequentialist justifications are (iii) the argument from citizen participation in democratic self-government and (iv) the argument from the right to autonomy.
Free Speech Values and Interests and Free Speech Rights
The question of which justification, or set of justifications, is most successful is not one that I can answer here. I will therefore adopt a pluralist approach to the justificatory question. I will assume that all of the justifications I identify here succeed to some extent in supporting the FSP. As such, I will identify the free speechinterests and values that each consequentialist justification seeks to promote, and the free speech rights that each non-consequentialist justification protects, and go on to examine whether and to what extent these interests, values and rights are implicated in the various categories of hate speech.
The Argument from the Discovery of Truth
This argument can take a stronger, optimistic form or a weaker, sceptical form, or some combination of the two. The stronger claim is that in a free ‘marketplace of ideas’, true ideas and opinions will tend to find favour and eventually prevail over false ideas and opinions.Footnote 10 The weaker, sceptical claim is that censorship will always be less likely to promote truth than free discussion because no authority can reliably identify wrong ideas and therefore suppression of ideas may simply lead to the suppression of true or at least partially true ideas.Footnote 11
Clearly the most important value promoted here is truth. As such, it instrumentally protects the interest of the speaker in advancing, and of the audience and bystanders (that is, society at large) in receiving, and thereby being made able to evaluate and challenge, a wide diversity of ideas and opinions. This is the case because this argument always to some extent relies on the empirical claim that the greater the diversity of opinion, and the greater the extent to which proponents of these different opinions are allowed to engage each other in discussion and debate, the more true opinions will gain adherents.
Notice here that even if we accept the (not uncontroversial) claim that free discussion is the best way to discover truth, the strength of the free speech values protected by this argument will simply be contingent on the value attached to truth. As Schauer (1982, p. 23) has pointed out, it is implausible to think that this value is absolute, or even that it has priority over other values and interests. While within the context of a purely epistemic or deliberative practice, such as scholarly research, the truth may have this absolute value, it does not seem that the truth has this kind of priority in other contexts, specifically the context with which political theory is concerned—the context of a political society.
The main social value of true factual propositions will be the advancement of knowledge, and from there the progress of technology, productivity and civilisation, while the main social value of true value judgments will be something like what Cohen calls the ‘deliberative interest’, that is, the agent’s interest in being able to choose ways of life which are best or genuinely worthwhile, not simply those she currently holds to be the best. As he puts it, ‘we have an interest in circumstances favourable to finding what is… worthwhile: that is, to finding out which ways of life are supported by the strongest reasons’ (Cohen 1993, p. 228). Besides value judgments about which ways of life are good or worth living, value judgments about political matters and other matters of common concern are obviously also important. Just as it is important to reach true judgments about which individual ways of life are good, it is important to reach true judgments about which collective ways of life are good, and which political and social arrangements are just. These are undoubtedly powerful values and interests. Nevertheless, their normative weight is presumably not absolute, nor should they always have strict priority over other social goals.
The Argument from Personal Development
The grounding of the value of truth (for evaluative claims) in this deliberative interest puts it very close to the argument from personal development, which also concerns the importance of free speech to the individual’s choosing of ways of life. Barendt (1985, p. 14) characterises this argument as the idea that ‘Restrictions on what a man is allowed to say and write, or (on some formulations of the theory) to hear or read, inhibit the growth of his personality. People will not be able to develop intellectually and spiritually, unless they are free to formulate their beliefs and political attitudes through public discussion, and in response to the criticisms of others’. A complementary point is made by Raz (1991), who suggests that the free expression of ideas and practices which form part of different ways of life help to publicly validate these distinct ways of life, such that adherents of some particular way of life will benefit from being reassured that they are not alone, and from gaining public and societal validation of their conception of the good life.
Clearly, the fundamental value at stake here is essentially the same one as that defended in what I will later call the non-consequentialist justification from a right to personal autonomy, viz. the value to the individual of choosing her own plan of life, according to her own conception of which form of life is (or suits her) best. Nevertheless, this is to my mind a consequentialist justification because it is primarily concerned with the way in which the restraints on government action required by the FSP promote the conditions under which various valuable options and ways of life can flourish and individuals can choose between them in a meaningful way.
The Argument from Citizen Participation in Democratic Self-government
This justification has been propounded by writers such as Post (1990), Sunstein (1993), and classically, Meiklejohn (1961). For example, Sunstein advocates a ‘Madisonian First Amendment’ based on the idea that in a democracy the people are sovereign and therefore political outcomes are to be reached by the deliberation and decision of the people. Free speech is to be protected because it facilitates the democratic articulation, aggregation and balancing of interests, and is necessary if the people are to be able to decide for themselves the candidates they think most suitable for public office and the policies that public officials should pursue (Sunstein 1993, pp. xvi–xvii).
This is a non-consequentialist or rights-based justification inasmuch as the argument assumes a right of individual citizens in a democracy to participate in democratic political processes, and rejects as impermissible government controls on speech on the grounds that such controls violate that right to democratic participation.Footnote 12 Schauer characterises this as the idea that, in a system of popular sovereignty, ‘If the government is the servant, censorship by the government is anomalous. It results in the servants pre-selecting the information available to the sovereign’ (1982, p. 39). The democratic will, understood as public opinion, must be formed independently of government control if self-government and the sovereignty of the people are to be preserved.
Significantly, this justification privileges political speech.Footnote 13 As such, the main speaker interest is in providing input into the process of political deliberation, while the main audience interest is in hearing the views of others, and gaining an understanding of others’ political views and preferences. To the extent that these interests are illegitimately frustrated, the rights of the individuals in question to democratic participation are violated. The ‘political’ should, however, be understood broadly, since a wide range of information, views and opinions about broad areas of human concern are plausibly also politically relevant. Nevertheless, the definition of political speech is not infinitely elastic—I would follow Dworkin (1981, p. 177) in dismissing the idea that pornography could fall under any plausible conception of political speech. As we will see, certain kinds of hate speech will also be difficult to count as political speech.
The Argument from the Right to Autonomy
Dworkin has advanced a non-consequentialist argument justifying the FSP based on the speaker’s right to autonomy, or what he calls the ‘right to moral independence’. On his view, it is impermissible for the state to legally restrict or regulate individuals’ speech ‘just on the ground that [state] officials or fellow-citizens think that their opinions about the right way for them to lead their own lives are ignoble or wrong’ (Dworkin 1981, p. 194). To avoid misunderstanding, I would stress here that while clearly Dworkin is rooting the FSP in an individual’s right to autonomous choice of her own life plan according to her own conception of the good life, the justificatory foundation of this right does not lie in the value of liberty or autonomy but in equality. For Dworkin, the foundational principle of political morality is the requirement that the government show equal concern and respect for all citizens, and the requirement of equal respect means that laws ought not to be justified on grounds that privilege or denigrate one conception of the good life over another. Hence equal respect implies a right to moral independence, and finally a right to freedom of speech.Footnote 14
As we have seen, this rights-based autonomy argument is closely related to the consequentialist argument from personal development; both arguments accept that individuals have a fundamental interest in choosing their own ways of life and living their lives according to their own judgments of what is valuable. The difference is that where the latter claims that protections for speech promote this fundamental interest and are justified for that reason, the former claims that individuals are entitled to protection from regulation that discriminates against their views and conceptions of the good, and therefore that there is a moral constraint against violating the FSP.
One helpful way to understand this argument is through the lens of a key doctrine in the First Amendment jurisprudence of the United States, namely the doctrine requiring viewpoint neutrality and prohibiting viewpoint discrimination.Footnote 15 If it is impermissible to regulate speech because the evaluative opinions, or viewpoints, communicated by it are disfavoured, then speech-regarding regulations should be viewpoint neutral. Notice that the neutrality in question is justificatory neutrality, not neutrality of effect. A law which regulates speech in order to express disapproval of, and suppress, its message fails the test of viewpoint neutrality; a law which happens to disadvantage the ability of certain viewpoints to gain adherents, or which disadvantages those who hold that viewpoint, but does not aim at producing such a pattern of disadvantage, does not. This is the case not merely because neutrality of effect is an implausibly stringent standard, but more importantly because liberal justice does not require that each conception of the good fare equally well, only that laws and regulations do not aim to favour or disfavour certain conceptions of the good rather than others.
Dworkin’s argument appeals to the speaker’s right, but there is also a rights-based justification which appeals to an audience right to autonomy. The key proponent of this view has been Scanlon (1972), who argues that since an autonomous person’s reason is sovereign over her own decisions, it is incompatible with her autonomy to be shielded from certain evaluative views, or factual information, even if only to avoid the harm to her of coming to have false beliefs. Nagel likewise insists that ‘Mental autonomy is restricted by shutting down both inputs and outputs’ (1995, pp. 96–97). On this view, the audience has the right not to have possible mental inputs to its autonomous decision-making and deliberative processes restricted. This audience right to autonomy can also be understood through a doctrine of viewpoint neutrality: a law or regulation that restricts audience access to speech because of disfavour for the message communicated by that speech fails to respect the audience right to autonomy.
Categories of Hate Speech: an Analysis by Categories
Having reviewed the free speech interests and free speech rights the various justifications are concerned with, I will analyse each hate speech category, balancing the free speech interests and rights reached in each category with the harms produced by that category.
Targeted Vilification as Uncovered Speech
Vilification as a category of hate speech is speech whose dominant intention is to wound, insult or intimidate the audience, motivated by hostility towards or contempt for the audience’s racial or religious identity. Targeted vilification is vilificatory speech which is directed at a specific individual or small group of individuals. This category therefore covers not only face-to-face encounters, but also incidents without immediate contact but where the vilificatory speech is nevertheless specifically and narrowly directed, such as when racist epithets are spray-painted on someone’s front door, or when a noose or other racially-charged symbol is placed on someone’s desk at work or school with the deliberate intention to wound or intimidate that particular worker or pupil.Footnote 16
As Greenawalt has noted, the key feature of vilification is that the dominant intention is to wound and insult the hearer. Instead of choosing words that the speaker thinks will best communicate her message, she chooses words for their potential to wound. Indeed, Greenawalt considers vilification as a form of ‘psychic assault’ (1995, p. 49). Similarly, for Lawrence (1990, p. 452) targeted vilification is emphatically not a deliberative or even communicative endeavour, since the speaker’s intention ‘is not to discover truth or initiate dialogue but to injure the victim’. Moreover, as Brink (2001) stresses, personal vilification will typically provoke an inarticulate response such as emotional distress, visceral retaliatory remarks, or even violence.
Sometimes targeted vilification may go beyond mere epithets, and may embed some (perhaps crudely expressed) evaluative opinion denigrating racial and religious minorities and calling for discrimination and other wrongful harms against them. Even in such cases, the targeted nature of this category of speech means that the dominant intention is reasonably construed as an attempt to wound and intimidate; if there were a real intention to communicate a particular evaluative opinion or political preference, the speaker hardly direct the speech at such a narrow audience, and still less an audience that is clearly the least likely to be persuaded of such views.
I argue that targeted vilification is uncovered by the FSP. Free speech rights and interests are very minimally implicated, if at all, because the aim is not to communicate an opinion or message with any cognitive content, but rather to induce certain psychological reactions in its targets—Greenawalt (1995, p. 49) is right to insist that ‘The speaker’s aim [to wound] diminishes the expressive importance of the words.’ The cognitive content of such speech is typically very limited, and such utterances will struggle to qualify as assertions of fact, expressions of evaluative opinion, or expressions of political preference to any substantial degree.
At best, we could say that the speaker has some interest in expressing his emotional states and attitudes, in line with the argument from personal development. We might think of Cohen v. California, where the United States Supreme Court held that the First Amendment extends protection to some emotive expression and noted that often the emotive and cognitive elements of expression are inextricable.Footnote 17 But with regard to targeted vilification, this argument is inapplicable. As we have seen, the cognitive content of targeted vilification is very minimal; any emotive element in targeted vilification will not serve to express the intensity with which the speaker holds the view she holds, as in Cohen, since there is no ‘view’ at stake.
Moreover, it is implausible that someone’s self-fulfilment or personal development is served by her being able to emotively express her hostility and contempt for members of other racial or religious groups, and especially implausible that this conduit for self-fulfilment should take the form of vilification directed at specific individuals or groups of individuals. I should stress here that I do not mean to deny the idea, implicit in the argument from self-development, that there are a variety of ways of life that are valuable; that is, I do not here deny the thesis of pluralism about the good life. My argument relies on a much more plausible denial, namely the denial of the claim that all forms of life are valuable, or the closely related idea that any (expressive) act an agent chooses to engage in promotes her self-development. While it is the case that substantial restrictions on a person’s ability to express herself and her emotions will usually constrain her self-fulfilment and personal development, it is not the case that every restriction will constrain self-development.
Moreover, mere emotive self-expression—that is, the mere externalisation of internal feeling—is not a concern of the FSP.Footnote 18 A large range of human activity, including conduct that is clearly not covered by the FSP, has this function. For example, pounding one’s fists against the wall, or wearing eccentric clothes, might be forms of emotive self-expression (and indeed might be covered by a general liberty principle), but they are clearly not covered by the FSP. As such, this cannot be an interest relevant to the FSP if it is to be defended as a distinct principle.
While my analysis so far might show that no free speech interests are more than very minimally at stake in targeted vilification, it remains a possibility that regulation of targeted vilification violates a speaker or audience right to autonomy. Note however that both the speaker and audience rights to autonomy are concerned with the wrongfulness of restricting either the expression of, or access to, disfavoured messages or viewpoints. If my analysis of targeted vilification is correct—that is, if the cognitive content of targeted vilification is minimal and its intention is to insult and intimidate rather than to communicate—then the right to autonomy is not implicated.
Targeted vilification is uncovered because it does not promote any free speech interests and its regulation would not violate any free speech rights; indeed, the concerns of the free speech justifications are barely implicated in this category of hate speech at all. This category of hate speech is simply is not what the FSP is concerned with, and as such is uncovered and regulable.
Diffuse Vilification as Unprotected Speech
Diffuse vilification differs from targeted vilification inasmuch as it is not directed at specific individuals or small groups, but is directed either (partly) to a sympathetic public audience, or at a wide and indeterminate audience. This usually takes the form of symbolic speech. Examples include the proposed Nazi march through the Illinois village of Skokie, or the mock slave auction staged by white fraternity pledges in blackface at the University of Wisconsin.Footnote 19
As with targeted vilification, a major aim of such speech is to wound, insult or intimidate individuals based on their race or religious identity, although here the affected individuals need not be the immediate audience but may be bystanders.Footnote 20 Consider the example of the proposed Nazi march in Skokie. The Nazis’ choice to march in a village where large numbers of elderly Jews, including Holocaust survivors, lived clearly showed an intention to cause emotional distress. In that context, the wearing of Nazi uniforms and the display of the swastika, while they might have had some other significations (such as political advocacy for Nazism), were mainly intended to wound, insult, and intimidate.Footnote 21
Indeed, the choice of outrageous symbolic behaviour is strong indication that political advocacy, or the communication of some evaluative opinion was not the main intention in these and similar cases; people who genuinely wish to offer their views in a deliberative process do not resort to calculatedly offensive displays. In fact those who wish to communicate unpopular views generally take great care not to cause undue offence in the expression of their views so that they will get a fair hearing.
Nevertheless, diffuse vilification potentially advances enough free speech interests to be covered speech. A Nazi march is at some level political speech, while a mock slave auction in blackface may express an evaluative opinion regarding the meaning of the history of black slavery and the social meaning of the African-American community.Footnote 22 Even in cases where the cognitive content being communicated is minimal, precisely because it is not narrowly targeted towards specific private individuals or small groups, but at least ostensibly directed at a wider audience, diffuse vilification will involve a greater degree of free speech interests than targeted vilification. However, because the main intention is to wound or intimidate, and the cognitive content is typically insubstantial, the significance of these interests is greatly diminished. Taking a consequentialist justification for the FSP, since diffuse vilification is evidently harmful to those who are wounded and intimidated, it seems to me that these weak free speech interests will be outweighed, rendering this category of hate speech unprotected. Note that this is not an instance of ad hoc balancing: it is a claim that relative to the central concerns that motivate the FSP itself, the claims of speakers to speak are weak in these cases.
One obvious objection is that the harms are in fact also minimal because those who are distressed by diffuse vilification could simply avoid it. The possibility of avoidance distinguishes diffuse from targeted vilification since by definition targeted vilification cannot easily be avoided by its targets. We should note, however, that the conception of ‘avoidable’ operative here is a moralised conception, not a purely empirical one. When we say that victims can avoid the vilificatory speech, we mean that they can avoid it without incurring costs we think would be unreasonable to expect them to endure. When the speech intentionally invades the victim’s village and everyday experience, or the common student areas at her university, it seems unreasonable simply to require her to bear the costs of avoiding the speech, particularly if it is of minimal value in free speech terms.Footnote 23
Perhaps, however, the regulation of diffuse vilification violates a speaker or audience right to autonomy. Unlike the targeted case of vilification, diffuse vilification tends to include greater cognitive content, and can to some extent to be understood as conveying a message or viewpoint, even if only symbolically. Consider, for example, the argument advanced by the majority in the United States case of RAV v. St. Paul.Footnote 24 While acknowledging that racist vilification is low-value speech, the Supreme Court held that laws restricting such speech are viewpoint discriminatory because they effectively privilege the speech of non-racists over that of racists.
Recall, however, the distinction between justificatory neutrality and neutrality of effect. A law which regulates racist diffuse vilification because of the harms it produces would retain justificatory neutrality, since the law is not animated by moral repugnance for racist opinions but rather by a concern to curb the harms inflicted by such speech.Footnote 25 Moreover, the harm associated with vilification is direct. If a law aims to curb the harms of hate speech by coercively interfering in the ways that speakers may propagate hateful messages or others may gain access to such messages, in an attempt to limit the spread of hateful views, then it attempts to control those harms by manipulating or controlling the free normative agency of speakers, hearers and bystanders, violating their autonomy rights. But the regulation of diffuse vilification does not operate in this way. Diffuse vilification does not cause harm by trying to win adherents to discriminatory views or indeed any view; it acts through a much more direct intervention in the public domain—by sending a public signal to its targets, a signal which is intended to insult or intimidate. When a law aims to control this harm, it operates simply by attempting to disable the ability to send such public signals; it does not attempt to influence the ways in which agents are able to propagate or access certain views.
Exclusionary policies are those under which certain identifiable racial or religious groups are excluded from full and equal citizenship by being stripped of their civil and political rights, or otherwise being made to suffer systematic state-sanctioned discrimination. Eliminationist policies aim at removing certain racial or religious groups from the population through forced repatriation or violent ethnic cleansing.
I argue that this category of hate speech is unprotected to the extent that there is a high likelihood that such speech will lead to the advocated policies gaining mass political support and being enacted.Footnote 26 Obviously, insofar as the enactment of these policies will be the clearly foreseeable consequence of the spread of such speech, advocacy for exclusionary or eliminationist policies is extremely harmful. As such, it seems that any consequentialist justification will fail in this (very narrow) case. The argument from truth discovery seems to me to be inapplicable here: the FSP, I take it, is important only within a larger commitment to liberal justice, and such a commitment will discount the possibility that claims which support the violation of foundational principles of liberal justice are true. The argument from personal development also fails here because however much (or indeed, and more likely, little) the social conditions for personal autonomy to flourish are promoted by allowing such speech, these will be outweighed by the severe and wrongful harms that the victims of such policies will suffer, including grave erosions of their opportunity for personal development and to lead an autonomous life.
If the consequentialist justifications clearly do not provide support for the protection of such speech, it seems that the regulation of political advocacy—of any kind—clearly implicates in an important way the non-consequentialist justifications, and it is on these latter justifications that I will focus. Firstly, I consider the right to participation in democratic self-government. This right strongly protects political speech, which is explicitly relevant in this category. Nevertheless, in my view the argument from democracy does not offer clear grounds for the protection of this category of hate speech.
I suggest that regulation of such speech is a legitimate exercise of what Rosenblum (2008, pp. 412–455) has called ‘democratic self-defense’ or ‘militant democracy’. Since political equality is the fundamental value of democratic government, state denial of political equality to certain identifiable groups is foundationally incompatible with democracy. Political advocacy and organisation in favour of exclusionary and eliminationist policies create the danger that an electoral majority might choose an anti-democratic government; we might say that this is a classic ‘paradox of democracy’. I argue that this paradox can be resolved in favour of restrictions on such political activity which is highly likely to destroy democracy at this foundational level, despite the obvious constraints this will place on political participation.
We can think about the resolution of this paradox by analogy with consent. It is often thought that even if we value autonomy, we should reject the validity of contracts for voluntary slavery, since it involves consenting to foreclose the future possibility of consent, thus defeating the value—autonomy—which validated the contract of voluntary slavery in the first place. Similarly, if we accept as valid an electoral decision to put in place exclusionary or eliminationist policies, we cannot explain why we should respect the decision to elect anti-democratic candidates in the first place, since that would depend on valuing democracy and political equality, values which would be denied by these policies.
Indeed, it seems that as a general principle in democratic theory, when faced with a choice between respecting the outcomes of democratic procedures, and the non-violation of clear and foundational democratic values, it is reasonable to give priority to values over procedures. Otherwise, it would be difficult to explain why, for example, it would be undemocratic for a majority to vote to deprive some identifiable minority of the franchise, or for a majority to limit the freedom of political speech and other rights thought necessary for the legitimacy of democratic procedures in the first place.Footnote 27
Secondly, I consider the argument from the right to autonomy. Consider the audience right to autonomy. We might ask why people should not be allowed, as autonomous and rational persons, to consider for themselves and reject on their own judgment, exclusionary and eliminationist policies when presented to them for consideration by political advocacy in their favour. Indeed, we might ask why the remedy for the harms of this category of hate speech should not be ‘more speech’, that is, arguments within a free discussion against the advocated policies.
This is a powerful objection. Indeed, this is why I hold that, in general, assertions of fact and value, even those which might suggest the desirability of stripping identifiable groups of certain rights, fall under a protected category of hate speech. However, notice that this objection relies for its force on the assumption that these policy positions will in fact be rejected when empirically this assumption will not always be warranted.Footnote 28 To say that the solution is ‘more speech’ is to assume that ‘more speech’ will in fact avert the moral catastrophe that the adoption of exclusionary and eliminationist policies constitutes.
Once there is a real possibility that these policy positions will in fact win political support in free discussion, an objection which appeals to the audience autonomy argument becomes subject to a reply suggested by the arguments that Greenawalt (1989b) and Amdur (1980) have made in favour of a more moderate reading of the right to autonomy and its implications for free speech. Specifically, the idea is that rational and autonomous agents might foreclose some inputs for themselves as an acceptable price for preventing some inputs for other people who may be induced by these inputs to commit acts which harm them or society.Footnote 29 With regard to speech which advocates exclusionary or eliminationist policies, a rational and autonomous agent might—consistent with her status as such an agent—agree to restrictions on such speech to the extent that such restrictions will be successful in preventing the successful realisation of the advocated policies.
Consider now the speaker’s right to autonomy. Legal controls on political advocacy seem clearly to violate the doctrine of viewpoint neutrality. Note that the reply offered with respect to vilificatory hate speech—namely that controls on vilification do not violate justificatory neutrality but only neutrality of effect—is not available here. Although in some sense the regulation of this category of hate speech is also motivated by the aim of preventing harm, it cannot be said that regulation is not motivated by disfavour for the message expressed by such speech. Moreover, in this case the harm is prevented by coercively interfering in the way that speakers are able to propagate and others are able to consider and be persuaded of, the message expressed by such speech; this is necessarily the case since the relevant harm here is the result of the message gaining adherents. Unlike in the case of diffuse vilification, legal regulations on this category of speech aim at controlling the harms produced precisely by manipulating or interfering with the free normative agency of speakers, and thereby violate their autonomy rights.
I argue, however, that controls on this category of hate speech do not unjustly violate the autonomy rights of speakers. Respect for the autonomy rights of speakers is a commitment of liberal justice, but it is not the only commitment. When the non-violation of the autonomy rights of speakers foreseeably leads to policies which will violate other, foundational, commitments of liberal justice such as the equal basic rights of citizens, it is unclear that violating the autonomy rights of speakers is unjustified, all things considered. My position here is, I believe, consistent with Rawls’s views about the priority of a coherent scheme of basic liberties. Priority for a scheme of liberties rather than for any one liberty ‘implies in practice that a basic liberty can be limited or denied solely for the sake of one or more other basic liberties, [but never] for reasons of public good or of perfectionist values’ (Rawls (1993, p. 295).
Having suggested that restrictions on this category of hate speech do not violate unjustly free speech rights, and in light of the obvious harms of such speech, I conclude that this hate speech category is clearly covered as political speech, but nonetheless unprotected and therefore regulable. I would stress, however, that my position is silent on whether such speech should be regulated, and is certainly silent on the authority question—who should decide when speech properly counts as falling within this category, in virtue of its foreseeably leading to the adoption of policies which exclude or eliminate identifiable racial or religious groups. It may be the case that no government can reliably be given the authority to make this difficult judgment without opening the way for abuse. Even if that is the case, however, my position here is, in my view, not affected—it deals with the first-order question of whether this category of speech is in principle regulable under the FSP.
Adverse Assertions of Fact and Value
Assertions of fact and evaluative opinions will generally be protected speech. The arguments from truth discovery, democracy and audience autonomy cover assertions of fact, while evaluative opinions are the concern of all of the free speech justifications. The free speech interests and rights involved in assertions of fact and value, even when these constitute adverse judgments and attacks on specific racial or religious groups, will therefore generally be substantial.
That is not to say that assertions of fact and evaluative opinions may not produce significant harms. But despite the significant potential harms, this category of speech is protected because of the powerful free speech interests and rights involved, and the relative effectiveness of the remedy of ‘more speech’ in these cases. Because assertions of fact and evaluative opinions have clear cognitive content, they can appropriately be answered through deliberative and articulate speech. For example, denigratory speech associating a particular racial or religious group with criminality or disease can be countered by arguments and assertions to the contrary, in a way that was not possible for mere vilification, which as I have argued invites an inarticulate rather than deliberative response.
For this reason I reject the idea that what some writers have called ‘group libel’ should be unprotected speech. Group libel designates (false) assertions which hold up to ridicule or contempt, or bring into disrepute, a racial or religious group.Footnote 30 But as Post has noted, almost all speech labelled group libel ‘will be privileged as assertions of evaluative opinion’. Unlike the libel of private individuals, which often include assertions that the individual has committed certain specific acts, so-called group libel will be concerned with whether certain acts committed by some, even most, members of the group ‘can appropriately be used to characterize the group’. Given the highly controversial and evaluative nature of the question of how a group should be characterised—the social meaning of that group—assertions which might be called group libel cannot be easily classified as ‘true’ or ‘false’ (Post 1990, p. 298). Moreover, these evaluative opinions, if they are deemed harmful, are best remedied by ‘more speech’, rather than regulation.
Conclusion
In asking if freedom of speech includes hate speech, we should distinguish between different categories of hate speech, and between the question of coverage and that of protection. I hope to have shown that targeted vilification is uncovered speech, that diffuse vilification and organised political advocacy for exclusionary and eliminationist policies is unprotected speech, and that other assertions of fact and value, including so-called group libel, are protected speech.
Notes
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.
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).
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.
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.
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.
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).
See my comments in note 3 and the discussion in Maitra and McGowan (2007, pp. 44–46).
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.
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.
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).
I believe this to be the crucial argument in Chap. 2 of Mill (1859–1989).
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.
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’.
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).
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.
As this last example shows, targeted vilification also includes symbolic speech. Indeed, this is the case for all the categories of hate speech.
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.
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).
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.
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).
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.
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.
R.A.V. v. City of St. Paul (1992), 505 U.S. 377.
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’.
As such, it must be stressed that it is organised, explicitly political speech—and not general evaluative opinions—which is relevant to this category.
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.
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.
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’.
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.