The Harm in Hate Speech
This is a wonderful book. It conveys complex ideas in an accessible and convincing way. Perhaps I was easy to convince, being one of those who fall on the pro hate-speech laws side of the debate to which this book contributes. Nevertheless, Jeremy Waldron has put together a clear and compelling rationale for hate-speech laws - the harm that it causes to human dignity.
Waldron utilises John Rawls' idea of a well-ordered society to consider what one might look like, literally in a visual sense. He says the "look of a society" is part of how we convey "assurances to its members about how they are likely to be treated". The social contract to protect individuals from exclusion, indignity and subordination needs to be represented so that ordinary people are assured that their lives can be lived fully. He is careful to frame his argument as aiming to understand how sensible people might construct a case in favour of hate-speech laws, and not as advocating their adoption.
Waldron makes the extremely important point that the term "hate" is a misnomer. It implies that what is at stake is primarily how a person feels about something said to them. He argues instead that the point of hate-speech laws is not to address offence, it is to address harm to human dignity.
I would add that the use of the term "hate" blurs an understanding of the valid grounds for government intervention. This is potentially a problem not only in the hate-speech arena but in anti-discrimination law. Some advocates (eg, in a current discussion on the consistency of anti-discrimination laws in Australia) argue that the grounds on which discrimination is actionable should be expanded beyond those currently agreed (such as race, gender and sexual orientation) to include new ones such as political opinion, industrial activity, criminal record or medical record. It is true that over time new developments in thinking lead to healthy reconsiderations of the parameters of laws designed to achieve justice. However, these suggestions may loosen the connection between anti-discrimination laws and historically identifiable marginalisation and prejudice, thus risking a loss of coherence in the anti-discrimination rationale.
Waldron delineates a difference between spoken and more permanent expressions. Although he does not draw the line too harshly, recognising that verbal abuse can also harm, he is more concerned with expressions that are (at least semi-)permanent. He is attempting to limit his argument carefully, but if he recognises that the hate involved in a face-to-face encounter can harm in a lingering way not just the recipient but members of the group to which they are perceived to belong, the distinction seems untenable (despite its analogy with the distinction between libel and slander). Racial epithets yelled out of a moving car are evidence of long-standing marginalisation and their effects can be just as harmful to human dignity as more permanent forms of expression.
He elegantly moves between the details of his argument and beautifully captured observations such as citing Edmund Burke's phrase that "to make us love our country, our country ought to be lovely". I wish more countries could be lovely in the manner he suggests. The many countries that do have hate-speech laws (in Europe, Canada, Australia) still experience racial and religious hate speech in a manner similar to the US, in which hate-speech laws do not exist because they have typically been found unconstitutional on First Amendment grounds.
Perhaps the next arena of debate is not whether hate-speech laws are justifiable but whether they even work. Waldron cites approvingly the "expressive and disciplinary work of law", but in those countries that have had hate-speech laws for decades, I wonder what expressive and disciplinary work they have done.
The Harm in Hate Speech
By Jeremy Waldron. Harvard University Press. 304pp, £19.95. ISBN 9780674065895. Published 31 May 2012
Katharine Gelber is an Australian Research Council Future fellow in the School of Political Science and International Studies, University of Queensland. She is author of Speaking Back: The Free Speech versus Hate Speech Debate (2001) and Speech Matters: Getting Free Speech Right (2011), and co-editor (with Adrienne Stone) of Hate Speech and Freedom of Speech in Australia (2007).