I am reading parts of Jeremy Waldron’s book on The Harm in Hate Speech, in which he argues that hate speech can and should be criminalized to uphold the dignity of all the members of society. I will have more detailed thoughts on it later, probably tomorrow. But for now, just an observation that has relatively little to do with prof. Waldron’s argument.
People who argue that hate speech should be prohibited often see it as a first warning of impending social breakdown; those who engage in it are regarded as the vanguard of advancing prejudice. Prof. Waldron is something of an exception here, as I will explain in forthcoming posts. But for most proponents of prohibiting hate speech, such prohibitions are hoped to be a way of stopping this advance in its tracks. Yet when we look at the actual hate speech cases, we notice that they involve not the vanguard of hatred, but its rear-guard. Consider the petitioner in Beauharnais v. Illinois, 343 U.S. 252 (1952) who wanted to prevent African-Americans from moving into white neighbourhoods; the respondent in R. v. Keegstra,  3 S.C.R. 697, who taught his students to be anti-Semites; most recently the respondent in Lund v. Boissoin, 2012 ABCA 300, a case about which I blogged here, who published a homophobic rant in a newspaper. They were all clinging to old prejudices―prejudices that were, by the time they were charged, in retreat. To be sure, they could yet fight, and inflict some damage. Anti-Black racism was not dead in the 1950s, nor indeed is it now, nor are anti-Semitism and homophobia. But they are fatally wounded. They are things of the past, losing ground with each passing year.
I stand to be corrected of course. If you have examples of prosecutions that tried to stop the rising, rather than hurry the ebbing tides of hatred, I’d be happy to revise my views. But I doubt that there are such examples. The phenomenon I am describing is not an accident. When a prejudice is new, it is difficult for legislators, prosecutors, and courts to recognize its danger. We know that prejudice is dangerous when it has had bad effects in the past, so hate speech laws protect groups that have historically been the victims of prejudice and hatred, on the expectation that prejudice and hatred might continue in the future. But of course the very fact that such laws are enacted shows that the majority of the population, or at least a considerable part, sufficient to elect a majority of legislators, has given up on these particular sorts of prejudice, in intent if not altogether in its day-to-day life. Prosecutions under such laws are bound to be rear-guard battles.
And this, I believe, is something we ought to take into account when we think about the usefulness of prohibitions on hate speech. If the law is only ever going to catch the rear-guard, rather than vanguard or the main body of the army of hatred, is it worth the sacrifice of freedom of speech that it necessarily entails?