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Posted by on Jan 28, 2013 in Books, Law, Politics | 10 comments

Waldron’s hate speech book

I’m currently reading The Harm in Hate Speech by Jeremy Waldron.

I won’t necessarily be out of sympathy with this book – I am a free speech advocate, not a free speech absolutist. Waldron wants to argue for a limited, principled exception to the default expectation of freedom of speech. The exception will have something to do with speech that seriously undermines the ability of a racial or other group to live peacefully and with quiet enjoyment within the jurisdiction concerned. So he’s going to want to say that some kinds of extreme incitement to hatred or severe contempt on racial (or analogous) grounds, or perhaps some kinds of extreme, high-impact, public expressions of hostility, can be criminalised – which is, of course, pretty much the legal position almost everywhere except in the United States.

It’s not going to be straightforward. Where, exactly, do you draw the line between, say, strong criticism of a culture or its beliefs/practices/values and the kind of “hate speech” that Waldron wants to criminalise? Unless we’re going to accept of a lot of (arguably) legitimate speech, we’d better be careful.

That said, we have historical experience of Nazi racial hate campaigns and the like. I’m not necessarily saying that the state should be helpless to suppress these. Perhaps the test does not need to be as strong as the classic Millian one of incitement to imminent violence. From time to time, I’ve toyed with weaker or additional tests. It’s just that we’d better careful to make sure we don’t capture more speech than we planned, especially bearing in mind the tendency of some courts and tribunals to read restrictions on freedom of speech expansively, rather than narrowly.

Anyway, I’ll be giving Waldron a fair reading. He hasn’t started well, though, by making analogies to libel law, and especially to ideas of criminal libel, which are in some disrepute. His reliance on a concept of “dignity” does not help, either – “dignity” or “human dignity” must be one of the most overused and intellectually dubious (perhaps vacuous) expressions in moral philosophy. So, I’m having to translate everything he says to see if it is expressible in terms that I find less problematic.

That’s not to suggest that the book is badly written, by the way. Quite the opposite – it’s well-written and a good read. But Waldron will be battling uphill to persuade me with the approach he’s adopted so far.

  • MosesZD

    I’m always against hate-speech regulations because I’ve yet to see one that hasn’t, in the end, been used by people to crush others while continuing on with their ‘acceptable’ hate speech.

  • That makes two of us!!

    It always ends up in censorship. For example, in Colombia we have a ‘anti-discrimination’ law, that has been used by LGBT groups, political parties and self described progresist journalist to shut up Catholic priests, politicians and any other social conservative who happens to have an unusual, politically incorrect opinion.

    I’ve always liked Kenan Malik’s take on hate speech: http://kenanmalik.wordpress.com/2012/04/19/why-hate-speech-should-not-be-banned/ (I’d love to see Russell’s take on that post!)

    Cheers!

  • Guest

    I think there are several lines of argument against “hate speech” laws. One is the point MosesZD has raised, the “bad faith” argument against such a prohibition, that is, hate speech laws will be enforced selectively and even hypocritically, depending on who’s being offended, how well-organized they are politically, and what degree of social power they’re able to exercise. There have been plenty of examples in the recent “atheist wars” where actions and actors of different sides are held to very different standards.

    Related to this is a “slippery slope” argument that once you designate “hate speech” as a category, it will be interpreted expansively to prohibit all sorts of things. (At this point, someone will likely interject that “slippery slope” arguments are a logical fallacy. Not necessarily.) I think the claim that “hate speech” is an expansive concept and leads to a slippery slope is justified by looking at the history of the concept. Originally, invocation of the idea of “hate speech” used to mean something pretty clear-cut – classic Nazi propaganda, KKK cross-burnings, calling a black person “nigger”, and so on. These days, all kinds of stuff gets called “hate speech” – in Europe, authors get hauled into court for writing something critical of the Islamic faith, “social justice” feminist types call for speaker bans on MRA-associated authors like Warren Farrell, radical feminists invoke the concept in regards to pornography, and so on. And I think in the recent atheist wars, to use that example again, we’ve seen plenty of cases where legitimate criticism gets called harassment or “hate speech”.

    A third line of argument against hate speech laws is the “no prevarication” one, namely, that it is actually desirable for groups and individuals that in fact hold such repellent opinions to state them openly and be identifiable. Of course, social pressure and political calculation will drive many of these to obscure or dogwhistle their real intentions, but fear of legal punishment would provide a further incentive to obfuscate their actual position. Related to this is the idea that “sunlight is the best disinfectant”, which notes that hateful ideas are allowed to be expressed openly rather than being occluded or disguised, they can be effectively dealt with by the expression of better ideas in open debate.

    Ultimately, I think you can only justify restrictions on “hate speech” on two grounds – one is the “incitement to immanent harm” one, and cases of this are quite rightly seen as rare and exceptional. The other is “time and place” restrictions – I think one could quite justifiably make a law against disrupting a private funeral or demonstrating within a certain narrowly-drawn distance of it, for example. Such ideas can easily be expressed openly elsewhere.

  • I’m not sure how I ended up as “Guest” after editing the post, but I take full credit or blame for the above.

  • Vic

    Make that three.

    http://www.youtube.com/watch?v=Z3vgGqlZGGE

    The ones that claim to act in our best interests should be subject to the harshest scrutiny.
    And anyone who says it’s ironic that a self-proclaimed communist should say that, be warned: I will unflinchingly censor you.

  • flueedo

    I have had this book on my ‘to-read list’ since it came out (it’s a long list….). I’ll be interested in reading your review, Mr Blackford.

  • flueedo

    I’m yet to see any law/regulation whatsoever that someone somewhere at some point hasn’t managed to subvert in order to misuse against a third party and/or for personal gain.

    The better question ought to be: Would such regulations overall do sufficiently more good than harm? Will it improve the current state of affairs?

  • ‘He hasn’t started well, though, by making analogies to libel law, and
    especially to ideas of criminal libel, which are in some disrepute.’

    Ok. But am I wrong in thinking that you are in favour of some notion of libel/defamation law, albeit one that’s more tightly constrained than we have at present (at least in England)? If so, couldn’t that law form a template for hate speech laws too? So it might, for instance, admit defences of truth, fair comment or public interest, while still outlawing the most evidently mendacious and malicious calumnies. (I’m not convinced I’d favour even that, I’m just trying to test the strongest iteration of the argument. That, and avoid work…)

  • RussellBlackford

    Yeah, fair enough. I’m not sure what I’d favour, either. I’m not convinced that an analogy with ordinary defamation works well. When you scale up, the harms and otherwise may be rather different in kind (maybe less in some ways and worse in some ways). In the past, I’ve sometimes toyed with the idea of laws that are aimed narrowly at racial hate propaganda campaigns… though how you’d draft a law that does that and no more is a difficult question.

  • keddaw

    Hate speech/crime laws are legal abominations.

    Apparently they criminalise some forms of speech, or aggravate existing laws, as the speech/crime was deliberately aimed at intimidating a minority in the community. Let’s leave aside, for now, which groups get such special protection and the fact there is no logical commonality in those groups (what, girl guides don’t deserve protection?) Let’s also ignore the deeply concerning idea that this is a form of thought crime.

    If one were to target a particular person/family for intimidation, this would not be hate crime/speech despite it being the most narrow form of intimidation possible. If one targets a whole country then this is also not a hate crime (although in the current climate some idiot might decide it’s terrorism).

    We now have the ridiculous notion that if speech is too narrowly targeted (causing the maximum impact) it is not hate speech and if it is too broad it is not hate speech, but you hit the middle ground, and against some legally protection collection of your fellow citizens, and it’s hate speech.

    And do any group get removed from the ‘protected’ list? No. Are groups on there that are actually the majority and already have ridiculous privilege? Yes. Guess what, you can actually commit hate speech by saying bad things about heterosexuals, or Christians, or white people, or the non-disabled – the laws are so broadly defined (in order to not miss out some persecuted minority) that the majority receive hate speech protection that they do not need.

    But, most worrying, is that with these statutes in place, the process becomes the punishment. People tend to be acquitted, or are not prosecuted, but do get arrested and put through the system over a long period to try to make the general population self-censor. See Emma West for example: http://www.thisiscroydontoday.co.uk/Trial-alleged-tram-racist-Emma-West-adjourned/story-17782550-detail/story.html who has had her trial postponed 4 times and has had this hanging over her for more than 2 years.