Offence and Defence

I come to the third and final part of my comment on Jeremy Waldron’s case for criminalizing hate speech, The Harm in Hate Speech, a book that extends the Holmes Lectures he delivered at Harvard a few years ago. I addressed his attempt to define hate speech as group libel here, concluding that it was not successful. I further argued that his justification for criminalizing hate speech, namely that doing so was necessary to give citizens assurances that their dignity would be respected, was unpersuasive, and that this criminalization would impose significant restriction on freedom of speech. Although he does not think that prohibiting free speech, properly understood, would have this effect, prof. Waldron also worries about that his claims might be made to say more than he means and used to advocate restrictions on speech more far-reaching than he would countenance. Accordingly, chapter 5 of his book, “Protecting Dignity or Protection from Offense,” argues against confusing the prohibition on hate speech with a much broader, and unjustified, prohibition on speech that is merely offensive.

The distinction between indignity and offence can be subtle and difficult to draw, but it is important and, prof. Waldron contends, the law can in fact draw it. In a nutshell, the difference is that although a person whose dignity is attacked will naturally feel hurt and offended, “[t]hat someone’s feelings are hurt is more or less definitive of offense, but it is not definitive of indignity.” Indignity has an objective component. As prof. Waldron argued earlier, it happens when a person’s membership in society or fitness for citizenship is denied―regardless of what that person thinks about such a denial. Offence, by contrast, is a subjective reaction. The two can go together, but offence is not indicative of indignity. In cases of doubt though, we should stay on the “liberal” side―that is, we should avoid censorship.

I think this is an interesting distinction; it helps us clarify our thinking. But, as I will argue shortly, it is not quite enough. There are many cases where the distinction becomes blurred. And in my view prof. Waldron does not pay enough attention to the problem of chilling effect in such cases. If it is not clear what side of a subtle distinction that demarcates the permitted from the criminal a statement falls on, speakers will fear to make it, even if a court would finally find that there is nothing wrong with it. When it comes to free speech, clear rules are arguably more important than in other areas of the law, where we can live with somewhat uncertain standards.

Much of prof. Waldron’s argument is devoted to the problem of claims by religious believers that this or that unflattering statement about their beliefs, or a (derisory) representation of something or someone sacred to them amounts to “defamation of religion” or hate speech and ought, therefore, to be prohibited. In his view, such reactions are usually driven by feelings of offence, which are not entitled to the criminal law’s solicitude. The statements that provoke them do not break the assurance of acceptance that must be given to all citizens. It is quite permissible, and indeed normal, for citizens of a democratic polity to attack their fellows’ beliefs. So long as the attack is indeed directed at belief, there is nothing wrong with it. It does become impermissible, however, when it extends to persons. Taking an example from politics, prof. Waldron says that while it is fine for him to criticize Tea Party policies as dangerous and irresponsible,

it would be inconsistent with the respect demanded by their status as citizens to publish a claim, for example, that Tea-Party politicians cannot be trusted with public funds or that they are dishonest. …   [T]hat would be a scurrilous attack on what I have called their elementary dignity in society.

It is the same with religion. It’s all right to say that a belief is absurd, so long as one doesn’t deny the believer’s humanity and citizenship.

I have sympathy for the distinction prof. Waldron is making here. I have defended something like it here, arguing that we can call our political opponents idiots, but really shouldn’t call them traitors. But while I think that we should try to keep to this rule as a matter of morality, I wonder if it is fair to hold us to this high standard as a matter of law.

More importantly, I think that the distinction between criticism of the belief and that of the believer collapses in many cases. When we say―as, for example, atheists often say of religious people―that another person’s belief is not only mistaken, but absurd and irrational, we are no longer only criticizing the belief in question. We are also saying that the believer is the kind of person who can believe irrational things―and to my mind, that is, at least a suggestion that he or she is also a less than fully fit to be a citizen. It is not different, it seems to me, from a claim that, say, people of a certain race have lower IQs than others, a claim that prof. Waldron would surely classify as hate speech. An irrational person ought not to be trusted with public funds any more than a dishonest one―and to cast aspersions of dishonesty on a group’s members because of their membership is, prof. Waldron says, “scurrilous.” And there are examples of what we now view as indisputable religious bigotry that presented itself as a legitimate concern about beliefs; anti-Catholic prejudice, for instance, which was justified by the argument that Catholics, because of their belief in the Pope’s supremacy in matters of religion, were loyal to a “foreign potentate” rather than their nation.

Prof. Waldron makes a gallant attempt to limit the scope of the prohibition on hate speech which he advocates, but I don’t think that he successfully defends it from the charge of overbreadth. The distinction he draws would prevent the criminalization of some sorts of blasphemy, for instance, but not all. At the very least, it would be exceedingly difficult to implement and would have significant chilling effects.

I add that, though I have been critical of prof. Waldron’s book in these posts, it is still a very rich and interesting work. Even at this horrible length, for which I apologize, I have not done it justice, though I hope I have been fair to it.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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