Hate and Disagreement

This is the second part of my comment on Jeremy Waldron’s case for criminalizing hate speech, The Harm in Hate Speech. I addressed his attempt to define hate speech as group libel here. That attempt was not successful, I concluded, but that need not mean that we should not be criminalizing hate speech, regardless of its relationship with libel. The core of the case for criminalizing hate speech is presented in chapter 4 of prof. Waldron’s book, “What Does a Well-Ordered Society Look Like”. In a nutshell, the argument is that hate speech must be prohibited in order to provide assurance to all citizens, and particularly to members of vulnerable minorities, that they are and will be treated as members of society, endowed with rights and deserving concern and consideration.

Prof. Waldron starts off by drawing a horrible picture of a society that does not prohibit hate speech:

Its hoardings and its lamp-posts may be festooned with depictions of members of racial minorities characterizing them as bestial or subhuman. There may be posters proclaiming that members of these minorities are criminals, perverts or terrorists, or leaflets saying that followers of a certain religion are threats to decent people and that they should be deported or made to disappear.  There may be banners and swastikas celebrating or excusing the genocidal campaigns of the past. There may be signs indicating that the members of the minority in question are not welcome in certain neighborhoods or in polite society generally, and flaming symbols intended to intimidate them if they remain.  That is what a society may look like when group defamation is permitted.

These visible expressions of hatred are “world-changing.” They signal to their targets that they are unwelcome; they make it harder for them to go about their daily lives and to integrate in society. That’s not an accident―it’s the very purpose of hate speech. And so a decent society should not look like that. It ought to make sure that its members know that they belong there and are accepted by all other members. Even if its members do not yet agree on the details of what justice requires, they must agree on the basics,

the most elementary fundamentals of justice—that all are equally human, and have the dignity of humanity, that all have an elementary entitlement to justice, and all deserve protection from the most egregious forms of violence, exclusion, indignity and subordination.

And it is not only the government that must signal its adherence to these principles. Individual citizens share this burden too, because the law depends on self-application by citizens, and knowing that even a few are prepared to break it out of hatred is enough to feel unwelcome, less than a full member of society.

I am not persuaded by prof. Waldron’s argument. Indeed, what I find most striking about it is how it breaks with the usual Waldronian insistence on the pervasiveness of good-faith disagreement and, notwithstanding such disagreement, the trust that we ought to have in our fellow-citizens. These arguments are at the heart of his rejection of judicial review of legislation―and I know, from conversation with him, that he still very much adheres to them in that context.

Yet his dystopian vision of a society that fails to criminalize hate speech is in sharp contrast with his optimism about a “core case” society where, though citizens are committed to respecting each other’s rights even though they disagree about what those rights are. And, importantly, the “core case” society is not a Utopian fiction―prof. Waldron thinks that real polities, such as the United Kingdom, the United States, and (presumably) Canada fit the bill. I’m not sure he is quite right about that. But what I do know is that, despite not criminalizing hate speech, the United States look nothing like the paradise of hatred that he depicts. (Nor does prof. Waldron say that they do, I hasten to add.) To be sure, they did once look a lot more like that bleak vision than they do now. But it is noteworthy that even as they have become a lot more inclusive, they have come to regard the outlawing of hate speech as constitutionally impermissible.

Prof. Waldron argues that a decent society must be unanimous in agreeing on “fundamentals of justice.” So we lose nothing much by making it impossible to have an open and courteous debate between a liberal and a Nazi. Hate speech―statements that deny some people the membership in society―simply does not deserve to be heard or, more to the point, since prof. Waldron is concerned with the written rather than the spoken word, seen. But there are more hard cases than he allows. He says we must agree on the equal humanity of all. But what foetuses? Is the view that abortion should be legal akin to a statement that genocide is permissible? Some people think so. Others don’t. The Waldron of Law and Disagreement celebrates this fact. The Waldron of The Harm in Hate Speech ought, I think, to be embarrassed by it. And things quickly get more complicated if we move from the absolute minimum of agreeing that we are all human to what he said was the purpose of banning hate speech in the previous chapter―a recognition of the high dignity of citizenship. Are calls for making naturalization more difficult attacks on that dignity? What about an argument that convicted criminals should not have the right to vote? We may find such arguments distasteful, but I do not think that they are so beyond the pale that we lose nothing at all by making it impossible for them to be aired.

So I don’t think that we stand to gain nearly as much as prof. Waldron says from prohibiting hate speech. Nor do I think that we stand to lose so little as he believes from doing so. That is especially so because of the difficulty of confining the prohibition to some manageable standard and to avoid having it encompass all sorts of speech we wouldn’t want to prohibit. I will turn to prof. Waldron’s attempt to deal with an aspect of that problem in the next post.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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