Why Hate Speech Shouldn't Be Illegal
In August, most Americans watched in horror as Charlottesville, Virginia became the locale for violent clashes between far right white nationalists and assorted counter-protesters. I — and I think I am joined by the majority of Americans in this sentiment — was deeply saddened to see my countrymen fighting, hurting, and, in the most extreme of cases, killing each other. Clearly, such political violence between Americans is deeply regrettable and should be avoided to the greatest degree possible.
In a post-Charlottesville environment, one cannot help but ask the following question: can a just society tolerate hate speech, if by hate speech we mean spoken or written attacks made on the basis of identification with racial, ethnic, religious, or other groups? There have been two prominent philosophical answers to this question. One is proposed by classical liberalism, the other by a certain strain of communitarianism.
Classical liberalism argues against the prohibition of hate speech on the grounds that such prohibitions constitute an unjust constraint on individual autonomy. For classical liberals, the standard by which state interference with individual autonomy should be judged is the harm principle, first explicitly articulated by English philosopher John Stuart Mill in the mid 19th century. Mill described the harm principle as follows: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Mill limits government coercion to the limitation of interpersonal violations of rights. In other words, according to liberalism, the only time the government may justly limit individual freedom is when the exercise of said freedom causes substantive harm to another individual. We may say that hate speech is morally reprehensible, or at the very least impolite, but from the perspective of the harm principle, these concerns are irrelevant. The question is whether or not the act in question impinges upon the liberty of another individual. Hate speech may offend, but it does not coerce. It does not affect one’s ability to do, say, or think as one likes; one’s ability to do all of these things is essentially the same before and after the act of hate speech occurs. Therefore, from the perspective of classical liberalism, there is no good reason to limit its expression.
A certain brand of communitarianism, however, has argued in favor of hate speech prohibitions on the grounds that hate speech is deleterious to dignity. In his book The Harm in Hate Speech, Jeremy Waldron defines dignity as people’s “status as anyone’s equal in the community they inhabit, their entitlement to basic justice, and to the fundamentals of their reputation.” Hate speech, Waldron contends, conveys the implicit message that members of certain groups are not legitimate members of society. This message undermines the assurance that the obligations owed to the members of these groups by virtue of their citizenship will be upheld. From Waldron’s perspective, hate speech, if unchecked by the law, has the power to render the citizenship of vulnerable group members effectively meaningless. Therefore, the community has an obligation to prohibit hate speech in an effort to uphold the dignity of these vulnerable citizens.
Both of these positions are, I contend, faulty bases upon which to decide whether or not a just society can tolerate hate speech.
With regard to the liberal approach to free speech, I contend that classical liberalism espouses a view of the individual that is excessively monadic. From the liberal point of view, the individual’s being-in-community is a matter of consent; the natural state of the individual is total freedom, which he allows to be constrained by society in return for a guarantee of security. As a result of this view of the human person, a kind of zero-sum power game develops; the state is therefore regarded as a kind of necessary evil with which individuals must compete to preserve their autonomy. The harm principle -- which, as stated above, seeks to limit state activity to the limitation of interpersonal evils -- is based in such a view of the relationship between the individual and the community. Stated concisely, liberals believe that individuals are independent agents by default and community members by choice.
I would argue the opposite position, that individuals are community members by nature and independent agents by choice (and perhaps, at their peril). To give an example, that I am an Irish Catholic is not an incidental quality attached to myself, but rather is constitutive of myself. My membership in the Irish Catholic community provides me with my moral orientation; that is to say, when confronted with any given choice, I draw on the resources of the Irish Catholic tradition to make my decision. My membership in the Irish Catholic community provides me with a value structure that serves to guide my actions. The community in which I happen to have been socialized is both Irish-American and Catholic in nature, but the same premise holds true for a Pakistani Muslim or a European secular humanist. The central idea is this: selfhood is rooted in community membership. My identity, that is the means by which I know who I am and how I am supposed to act, is socially negotiated. Whenever I act in the world, I am doing so as the bearer of a social identity. The values I have inherited from my tradition provide me with a kind of moral roadmap that serves to guide my decisions. Therefore, one cannot regard me as a socially independent being that consents to be a member of a community. Alienated from the values provided by community membership, I have no means by which to make choices (including the choice to be a community member) on any basis that is not purely arbitrary.
Given that classical liberalism’s notion of the self is invalid, as I have argued it is, the resulting portrait of individual-community relations as a zero-sum power game is similarly invalid. The individual’s ability to act in the world is bound up with his membership in community; it is therefore wrongheaded to think of society as a necessary evil that provides a minimal degree of security in exchange for a similarly minimal degree of liberty. Rather, it is more reasonable to think of society as the natural consequence of the inherent sociality of human beings.
On the other hand, the communitarian argument proposed in favor of prohibiting hate speech is, I contend, equally invalid. The flaw in this approach is that no hate speech prohibition may be crafted that does not prioritize the dignity of some citizens over others, which is incompatible with the equality of all citizens before the law. For example, suppose that a law were instituted in the United States banning defamatory verbal attacks made on the basis of race. If such a law were instituted, alt-right hero Richard Spencer would be prevented from engaging in his normal pattern of speech, which includes calls to turn the United States into a “white ethno-state” and to engage in “ethnic-cleansing… done peacefully.” With this law in place, the dignity of groups attacked by these speech acts would be preserved. However, the law affords no protections for Spencer’s dignity. He may be called a Nazi, fascist, or any number of other pejoratives that indicate that he is not a legitimate member of society. Definitionally, these would constitute attacks on his dignity, and yet, the law sees no need to protect him against these attacks. The result is the degradation of his citizenship relative to members of protected groups, which is deleterious to the equality of all citizens before the law.
To dispense with hypothetical musings for the moment, even without the backing of the law, Spencer’s dignity has eroded quite significantly already. In January 2017, he was assaulted in public to the approval of a significant contingent of Americans who agreed that it was a moral obligation to “punch Nazis.” Spencer’s status as a legitimate community member decayed to such a degree that many feel that he is not owed the same rights as other citizens. Though their advocates claim that hate speech prohibitions protect dignity, in truth they prioritize the dignity of some over others, which is both unequal and unjust.
Having pointed out the flaws in each traditional philosophical approach to the relationship between free speech and hate speech, I will now propose a third approach that seeks to avoid the problems posed by the others. The distinguishing characteristic of my approach is that it employs a social rather than an individualistic lens; that is to say, it treats discourse as a social institution rather than treating free speech as an individual right. Discourse can be treated as a social institution for the following reason: in the course of living in a community with others, disputes inevitably arise. These disputes, when they are of sufficient importance, may be resolved by one of two methods: discussion or violence. We can imagine two theoretical societies on disparate ends of a spectrum, one that settles all disputes by discourse, the other by violence. An argument is hardly necessary to demonstrate that the former is preferable. In a state where all disputes lead to violence, interpersonal trust would be impossible, for each person would be living in constant fear of violence from all his neighbors. In such a state of intense atomization, the cooperative efforts upon which society as we know it depends — police departments, fire departments, and religious organizations are all examples of such efforts — would not be possible. Therefore, we should want to construct our society such that it resolves as many disputes as possible by argumentation rather than violence. The social institution of discourse, that is, the set of social norms that guide how we talk to each other, is the means by which we may achieve that goal.
In order for discourse to be optimally functional in resolving disputes, I contend that it must allow the expression of all viewpoints. To revive an example I used earlier, suppose that a law prohibiting racist speech was implemented in the United States. The effect of such a law would not be to cure racists of their racism, but rather to exclude them from discourse over matters pertaining to race. When talking about race, racists would only talk to each other for fear of legal retribution if they expressed their opinions in public. Isolated from opposing views, their racism, far from abating, would intensify. Eventually, once these views were sufficiently deeply held, they could not help but manifest in violence, because discourse, the only peaceful avenue by which they could be expressed, would have been removed. Therefore, in the interest of avoiding widespread political violence, it seems that discourse must allow the expression of all points of view, no matter how contemptible most people may find them.
A qualification with regard to the openness of discourse: there are certain categories of speech that may be suppressed without compromising discourse. These are forms of expression that do not express a viewpoint. Imperative speech (speech that commands action), for example, makes no truth claims, and therefore its suppression does not harm discourse. To give an example, there is a crucial difference between saying “the Holocaust is a lie perpetrated by a Zionist conspiracy,” and “find all the Jews and kill them.” The former is a truth claim (by which I mean it makes a claim about the truth, not that it is necessarily true), and however preposterous it may be considered by the majority, it still must be allowed to be expressed in discourse. The latter makes no truth claims; it is a call to action, and moreover a call to violence, and therefore can and should be limited in the interest of preserving social order. The central point is this: in cases where a particular expressive act makes no truth claims and is seriously injurious to social order or mores, it may be suppressed without harming discourse.
To bring things around to the question with which I opened this article, it is my contention that the view of discourse as a social institution is incompatible with the prohibition of hate speech. I have defended the contention that the distinction between truth claims and non-truth claims is critically important. The category of hate speech encompasses both. Airheaded conspiracy theories about the influence of Jews on the global banking system and ethnically motivated threats of violence, for example, are grouped under the same heading when, in fact, the two are significantly distinct from one another. By dispensing with hate speech as a category altogether and instead adopting the approach I have proposed, we would be better able to recognize this distinction.
If the argument I have proposed is sound, then discourse is a tremendously important institution. It is the bulwark standing against a devolution into a state of violent chaos. We should find it concerning, then, that our discourse is in such a deplorable state. Unless we want to continue to endure miniscule civil wars like the one fought in Charlottesville, we would do well to reorient ourselves as a society and reflect on what we want our discourse to look like. I do not pretend to know exactly how this process should be enacted, but of one thing I am certain: the present state of affairs is intolerable. Let us pray that it does not persist any longer than it must.
(Thumbnail Image: White nationalists and counter protesters in Charlottesville, Virginia. Evelyn Hockstein/The Washington Post via Getty Images)