Further Thoughts On Hate Speech Laws

Further Thoughts On Hate Speech Laws

I have written previously about hate speech laws, see here.

In ‘The Harm in Hate Speech’ [1]Jeremy Waldron uses the concept of human dignity to justify hate speech laws.  In particular he examines the concept within the context of ‘group libel’, which he views as an attack on the dignity of members of the relevant group.[2] 

He also seeks to distinguish an attack on a person’s dignity from causing a person severe offence[3]

Walrdon also refers to a concept which he calls ‘political aesthetics’.[4]  This refers to avoiding an environment which is palpably unpleasant for members of ethnic minorities and will give them the impression that a significant number of people would like them excluded from society and may even harm them [5].  Waldron draws on the Rawlsion concept of a well ordered society, whilst acknowledging that Rawls did not seek to achieve this via legal coercion.[6]

Waldon examines the ‘legitimacy argument’ against hare speech laws put forward by Ronald Dworkin.  He quotes him as follows:

Fair Democracy requires…. that each citizen have not just a vote but a voice: a majority decision is not fair unless everyone has had a fair opportunity to express his or her attitudes or opinions or fears or tastes or presuppositions or prejudices or ideals, not just in the hope of influencing others (though that hope is crucially important), but also just to confirm his or her standing as a responsible agent in, rather than a passive victim of, collective action.[7]

In other words, for laws, especially anti-discrimination laws, to have legitimacy, there must have been an opportunity to voice opposition to such laws and the state cannot compel temperance in the expression of such opposition.

Dworkin uses the metaphor of upstream and downstream laws, hate speech laws fall into the former category, whereas laws prohibiting disorder or acts of discrimination, would fall into the latter category.  In Dworkin’s view upstream interference undermines the legitimacy of downstream laws.[8]

After considering a number of secondary issues[9], Waldron addresses the heart of Dworkin’s argument, with the following illustration: 

  • X opposes L because he thinks L will make him worse off
  • X opposes L because he thinks L will generate perverse economic incentives, undermining economic efficiency in society
  • X opposes L because he distrusts the bureaucracy necessary to administer L
  • X opposes L because he denies that the intended beneficiaries of L are worthy of the protection that it offers them[10]

Now focus particularly on (4).  That view may be expressed in various ways:

(4a) X expresses his dissent from the broad abstract principle that governments must show equal concern and respect to all members of the community.

(4b) X expounds some racial theory which he thinks shows the inferiority, by certain measures, of certain lines of human descent

(4c) X gives vent to the view that the citizens who are intended to be protected by the anti-discrimination law are no better than animals

(4d) X prints a leaflet or says on the radio that these citizens are no better than the sort of animals we would normally seek to exterminate (like rats or cockroaches)” 

According to Waldron, the legitimacy argument decreases down the scale from (a) – (d); consequently, in some cases the legitimacy argument can be outweighed by the aforementioned objectives for hate speech laws.[11]  He implies this would be the case for 4(c) and (d) but is not explicit[12].  Similarly he is not explicit about whether a law that would prohibit 4(a) and/or 4(b) would be illegitimate a priori; he acknowledges that many jurisdictions with hate speech laws would prohibit 4 (b) as well 4 (c) and (d)[13]

Based on the above, Waldron is not claiming to have refuted Dworkin’s legitimacy argument outright.  Furthermore, his argument on outweighing, appears to based on certain ideas not being criminalised per se.[14]

It might be possible to draft hate speech laws that would avoid criminalising ideas per se and would only punish vituperation and invective,  but it is not clear from Walrdon’s justification for hate speech laws, why they should be restricted to this.  Whilst Walrdon distinguishes an attack on a person’s dignity from merely causing offence (the latter not being a proper basis for prohibiting speech)[15], if the aim is to provide an assurance to certain members of society that they are perceived as worthy of equal treatment, what limits should the state go to provide such assurance?  Is the bench mark based on their subjective sense of assurance or is assurance to be imputed to them, based on objective criteria?

Why should the latter apply if the aim is to achieve a sense of assurance; the harm from violence is self-evident, but where a sense of assurance is itself the justification for hate speech laws, should the state not do what is necessary to achieve this, without recourse to any objective criteria?     

Is it justified to require ideas to be expressed in a temperate or measured manner?  It is easy to identify the kind of examples – the low hanging fruit – that Waldron does  (he often uses the example of claim that blacks are sub-human or equivalent to primates)[16] and rhetorically ask an opponent of hate speech laws, what they contribute the political debate.  Yet one should consider the implications, of requiring a person to state their ideas only in a measured and temperate manner.  

Doing so would disadvantage the inarticulate and the poorly educated.  Furthermore, humans are not governed only be reason and preventing a person from appealing to emotion, places them at a severe disadvantage within the political conversation.   In this article, I considered the claim by Lord Adonis that Enoch Powell’s monumental Rivers of Blood Speech, would contravene the Public Order Act 1986.  As a gifted orator, Powell used rhetoric to appeal to the emotions of his audience in order to persuade them that immigration should be reduced to negligible proportions.

Powell did not seek to denigrate any particular group when giving the above speech and it is probably not an intended target of Waldron’s proposed hate speech laws.  Nonetheless, it is an example of the a speech that could have been delivered in a more measured manner (with the inevitable result of reducing its impact).  Furthermore, there would be an argument for curtailing such a speech, if one adopted the subjective test for assurance, referred to above; as stated in the linked article, a significant number of ethnic minorities appear to have complained that Powell’s speech made them feel unwanted and unsafe in British society.

To conclude, Waldron provides interesting arguments for hate speech laws, but at their core, such arguments are not fundamentally distinct from the main argument put forward by the MPS who debated the first examples of such legislation (see the link to the Law Commission Report that contains Hansard references in the first article); essentially to maintain cohesion in a multi-racial and multi-cultural society, dissent must be regulated by the law, beyond the traditional prohibition against incitement.

A cohesion that is created by force of law rather than natural consent is fragile; hiding a lack of cohesion through the force of law is dangerous, as one is unable to see the true state of feeling. 

Additionally, I am unable to detect any clear limits to hate speech laws once one accepts the justifications that Waldon has put forward; in practice hate speech laws have only expanded, for instance to include incitement to religious hatred as well incitement to racial hatred, and the expansion of the Public Order Act, from words that are intended to stir up racial hatred, to include being reckless in this regard and thereafter words that are likely to stir up racial hatred.

[1] Harvard University Press 2014

[2] Ibid Chapter 3

[3] Ibid – Chapter 5

[4] Ibid chapters 3 – 5

[5] Ibid p74

[6] Ibid p78

[7][7] Ibid, cited at p175

[8] Idid 178-180

[9] See for instance 181-184 – Waldron suggests that Dworkin’s legitimacy argument would not necessarily be restricted to hate speech, and that banning hate speech does not undermine the legitimacy of the related upstream laws, any more than banning child pornography undermines the legitimacy of such laws.  Waldron questions whether Dworkin is seriously questioning that the legitimacy of certain laws in hate speech jurisdictions (see p185, with the example of a landlord who discriminates against Asians and does not have the right to express hateful opinions about Asians) but then goes on to concede that what Dworkin is referring to is an undermining of the legitimacy of such laws, not that it would be improper to enforce them.   There is also a distinction between procedural and philosophical legitimacy; a law may have been correctly passed in the relevant jurisdiction and thus ipso facto should be obeyed, but this does not negate philosophical arguments against any such law.  

[10] Ibid p189

[11] Ibid

[12] Ibid.

[13] Ibid

[14] Ibid 190

[15] Ibid chapter 5

[16] Ibid  – e.g. at p195