For those who are not yet sick and tired of my expostulations on the subject, I venture some concluding thoughts on the criminalization of hate speech, and on Jeremy Waldron’s argument in support of such criminalization. My previous posts on the topic are here, here, here, and here.
Prof. Waldron argues that hate speech must be got rid of, by way of criminalization, in order to protect human dignity. Hate speech, or at least written, “semi-permanent” as he puts it, expression of hate undermines the “assurance” that a decent society ought to give each of its members that he or she will be accepted as a human being and indeed as a full member of the society in question. The conception of dignity in play here is that which ties it to status: human dignity is the high status that each of us enjoys by virtue of belonging to mankind. (Prof. Waldron developed this conception of dignity in his Tanner Lectures given at Berkeley in 2009 and available here.) Tolerating hate speech means tolerating denials of this high status for some members of the community, which a decent society shouldn’t do.
But this conception of dignity is not the only one out there, as prof. Waldron himself often points out. And although he is right that one of the ways the law protects human dignity is by upholding status as citizens and rights-bearers, it also protects dignity in other ways. Arguably, one of them, as he pointed out today in the seminar discussion of his work on hate speech, is by protecting freedom of speech. The idea of human dignity points to a vision of the human being as having, potentially, something to say―and being entitled to say it. Speech is one of those things that distinguish man from beast, and prohibiting a human being from saying what he wants is, after a fashion, a way of treating him or her as devoid of this essential human trait. So those who resist the criminalization of hate speech on freedom of speech grounds have a dignitarian card of their own to play.
But there is yet another way in which law protects dignity―and here I am deliberately taking on board the title of a great essay by prof. Waldron, “How Law Protects Dignity.” As he argues in that essay and in others, and as Lon Fuller argued in his classic book The Morality of Law, the law protects human dignity by its very nature, because governance through law is necessarily a recognition of the human beings’ capacity for taking responsibility for their own lives, whether by planning them, by applying to themselves the rules by which their community expects them to live, or in other ways. The law recognizes these capacities by laying down clear, stable, and intelligible rules for the future, so that people can plan their lives taking these rules into account, and follow them without, for the most part, having to be prodded by governmental coercion.
When the law does not give people this ability, it fails to respect their dignity. It does so, for example, when it is retroactive―when new rules are applied not to future behaviour, which can be planned to comply with them, but to past actions which could not have been so planned. More to the point, the law also fails to respect people’s capacity for understanding, planning, and self-application of rules when it is so unclear that even a reasonably diligent person cannot know what the law means or whether it applies to what he or she is about to say or do. Of course no law is perfect in this respect. Law is often complicated. We often need professional help to figure it out. This is not always the case though, and the prohibitions of criminal law, especially, are often intuitive enough. In any event, success and failure here are matters of degree. Being human, we must learn to live with imperfection. But there is only so much imperfection that we should have to put up with.
I think that hate speech laws, perhaps especially the sort of hate speech doctrine advocated by prof. Waldron, do not reach the threshold of minimal clarity to be tolerable in a society that respects human dignity. I won’t repeat here all the arguments I made in yesterday’s posts. Suffice it to say that “hate speech,” as prof. Waldron interprets the idea, is so helplessly vague that it would be fiendishly difficult to say whether a critical statement about a group or its members comes within its scope. Prof. Waldron’s attempts to clarify the notion of hate speech by equating it with group defamation, or to limit it by distinguishing attacks on dignity from mere offence, and denigration of belief from denigration of believers do not work. And if he cannot make them work, I don’t know who can.
The criminalization of hate speech would, in an important way, fail to achieve its stated objective―the protection of human dignity. In the name of protecting the dignity of a few people whose standing in society is called in question by hate speech―and they are bound to be few, in a society decent enough to be thinking about the best way to ensure that all of its members are included―criminalization would undermine the dignity of all.
Double Aspect 
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