Jeremy Waldron, professor of social and political theory at Oxford University, argues the case for legislation against hate speech
Principle 5 is something we can all applaud. But as Timothy Garton Ash’s commentary indicates, it raises further issues that are not conveyed in the formulation of the principle itself. Should “speaking openly” mean speaking without any legal constraint, even when the speech is manifestly uncivil? So the discussion raises the issue of hate speech and the difficult question about whether it is ever appropriate to legislate against it.
The most striking thing about Timothy’s commentary on this issue is the absence of any substantial consideration of the harm that hate speech may do to those who are its targets. The message conveyed by a hateful pamphlet or poster, attacking someone on grounds of race, religion, sexuality, or ethnicity, is something like this:
“Don’t be fooled into thinking you are welcome here. The society around you may seem hospitable and non-discriminatory, but the truth is that you are not wanted, and you and your families will be shunned, excluded, beaten, and driven out, whenever we can get away with it. We may have to keep a low profile right now. But don’t get too comfortable. Remember what has happened to you and your kind in the past. Be afraid.”
That message is conveyed viciously and publicly. To the extent that they can, the purveyors of this hate will try to make it a visible and permanent feature of our social fabric. And members of the vulnerable groups targeted are expected to live their lives, conduct their business, raise their children, and allay their nightmares in a social atmosphere poisoned by this sort of speech.
Not only that, but the aim of this sort of speech is to defame the members of the vulnerable groups in question – to do whatever they can do to lower their reputation in the eyes of others and to make it as difficult as possible for them to engage in ordinary social interactions.
As I understand it, Timothy’s position is that the civil authorities should have no interest in this at all, no concern about the impact of on the lives of those who are targeted by hate speech. His discussion shows this by not dwelling on the effect or impact of hate speech and by implying that anyone who does dwell on the harm that may be done by hate speech is, for that reason alone, an enemy of freedom of expression.
A case can perhaps be made that legislation on these matters is chilling and counter-productive. We certainly need to discuss that. (Actually, I don’t accept the speculative “slippery slope” reasoning conveyed in Timothy’s commentary of Principle 4, but I do accept that there are serious questions to be addressed.) However, no discussion of the free speech/hate speech issue can possibly be taken seriously if it does not consider the harm that those who advocate the regulation of hate speech are trying to address.
So, what I would most like to see added to our discussion of Principle 4 is some consideration of this harm – I mean consideration at length, not just shrugged off in a line or two – and some explicit attempt to defend the position, which I think is implicit in the existing discussion, that the harm of hate speech pales into insignificance compared to the chilling effect of any legislation on the speakers themselves.
Once we understand the harm that hate speech may inflict, we are in a better position to grasp the argument in favour of the legislation that restricts it. Such legislation, in the countries where it exists, aims to uphold important elements of basic social order – and in particular the civic status or basic dignity of all who live in the society. Particularly in communities with histories of injustice or in modern conditions of religious or ethnic diversity, one cannot assume that the basic dignitary order will be upheld. There will always be attempts to stigmatise, marginalise, intimidate, or exclude members of distinct and vulnerable groups, and what we call hate speech is often a way of doing this or initiating this. As I have argued in Dignity and Defamation: The Visibility of Hate (the 2009 Holmes Lectures at Harvard University), hate speech legislation seeks to uphold a public good by protecting the basic dignitary order of society against this kind of attack.
Legislative attention to hate speech is like environmental legislation; it seeks to preserve a very elementary aspect of the social environment against both sudden and slow-acting poisons of a particularly virulent kind. Of course, we hope that attempts to underline the social order will be met with strong responses that are, equally, exercises of free speech. But legislation may be necessary, because there is no guarantee (and it is little short of superstitious to think that there is a guarantee) that more speech is an effective answer to hate speech.
Such legislation needs to be drafted with care. It needs to distinguish, for example, between attacks on people’s basic dignity and reputation, and attacks on their beliefs (the former are appropriate topics for legislative concern, but not the latter. It also needs to define alternative ways – non-virulent ways – of expressing the substance of the concerns that people may have about the behaviour of other groups or members in society, ways that will not attract legal sanctions. The best hate speech legislation takes care to do this. Its aim is to confine the application of legal sanctions to speech-acts, which directly and deliberately seek to make it impossible for their targets to live lives of basic dignity in our society.
This article was republished on Eurozine.