I think it’s also worth considering why we think free speech is so valuable. For me, it’s because it’s important for various reasons I believe we need to allow everyone’s perspective on issues to be aired in public and have the potential to gather support. I don’t think it’s got much to do with some intrinsic value to the individual of being able to say whatever we want in public. This is an important distinction, because it means that we can satisfy people’s right to free expression by giving them some reasonable access to public discourse, but doesn’t necessitate giving them all and any access that they might desire – for example aggressive public demonstrations by racist groups.
I think I was on a similar page last month:
We’re not talking here about a group that arbitrarily annoys another subset of a society by laughing at its religion or mocking its political views. What we have on our hands is a group systematically committed to making the lives of a racial group hell simply by virtue of the colour of their skin. One is an important expression of thought that any free society must necessarily tolerate. The other is an attempt to make some people feel and appear non-human.
Interestingly though, a scan of my archives suggests Jon has been consistent on this point, whilst I’ve argued the opposite way. For which I make no apologies and feel little embarrassment. As I keep saying, this is easily one of the thorniest of political issues.
What I do want to stand by in that past post, though, is my rejection of the logic which says we can ban hate speech on the grounds that it is not useful. I remain a Kantian. I can’t bring myself to substantiate rights on such a contingent foundation. I still believe fundamental liberties are best justified by appealing to the value of human choice in itself.
Which means that if I wish to motivate provisions on hate speech, as I am now inclined to, I’ve got to go down the route of saying that hate speech in fact undermines the value of humanity, so that the capacity for choice is paradoxically best served by restricting some speech. Which is where Waldron’s recent analogy between a social environment and the atmosphere in a courtroom may turn out to be vital:
Waldron distinguishes between protecting people from offense and protecting their dignity. The example of contemptuous conduct in open court illustrates his distinction. We do not punish the contempt—at least we do not acknowledge doing so—because the judge may be angered by an insulting remark or gesture, but rather to maintain decorum in the courtroom. Sustaining a judge’s authority assists her in performing her job. So it is with the dignity of the ordinary citizen. The fact that members of an ethnic minority may be justifiably outraged by hate speech is not a sufficient justification for censorship. But as citizens in a civil society, they are entitled to be treated with respect in the performance of their daily activities. Such dignity, Waldron argues, is “precisely what hate speech laws are designed to protect.”
This is surely the most promising avenue. I am worried by the whiff of Berlinian value-pluralism, which I gather Waldron endorses. According to that theory, both liberty and dignity may be social goods which must be traded off against one another in a zero-sum game. I’m with Dworkin in worrying about such an outcome, and instead want to say that free speech, properly defined, is perfectly consistent with banning hate speech. And I’d hope that the justification for both could be united under the Kantian umbrella of the value of humanity.
But who knows if that can be done in detail; maybe I’ll make it a pet project next year.
Archive of posts on hate speech from me here.