Finding the Harm in Hate Speech: An Argument against Censorship

Economic and Political Weekly, 2016

This paper examines the evolution of hate speech law through chronological developments. Beginning during the Constitutional Assembly debates, it examines how hate speech law has been interpreted by courts and legislative developments in the six decades post independence. Through this exercise, the author argues that the courts have interpreted the law through a pragmatic lens, often eschewing doctrine for practical reasons. If the judiciary’s approach to hate speech law has been through the lens of pragmatism, what does this mean for legal reform, and for framing civil society responses to the existing legal framework around hate speech? Is it possible to ensure a more speech expansive framework while working within the limits of existing constitutional jurisprudence? Do we have to move beyond existing jurisprudence to encourage and protect fearless speech?

William and Mary law review, 1991

In recent legal scholarship, writers have proposed three approaches to hate speech, each with its own internal complexities and variations. The first approach allows hate speech in order to maximize opportunities for individual expression and cultural regeneration. The second, highly controversial approach represses hate speech through sanctions that range from official and private reprimands to criminal prosecutions in order to promote equality and the nonsubordination of potential hate speech targets. Aggressive versions of this approach urge that hate speech should be punishable only when directed at members of a historically subordinated group, not dominant group members. The third, emerging approach attempts to accommodate the "worthy passions" of the first two approaches. The accommodationists endorse tightly worded, cautiously progressive measures that tend to proscribe only targeted vilification of a person on the basis of race, gender, religion, ethnic origin, sex...

Constitutional commentary, 2017

In a well-documented, intriguing, and intricately argued article, James Weinstein maintains that restrictions on hate speech are problematic because they tend to undermine the legitimacy of anti-discrimination statutes. In so doing, he develops an argument previously made by Ronald Dworkin with sophistication and with greater complexity and needed detail. He argues not only that such restrictions can undermine the legitimacy of anti-discrimination laws with respect to their popular acceptance, but also with respect to the political obligation to obey them and with the morality of their enforcement. The general idea is that persons precluded from opposing a law are not legitimately subject to the law. This argument seems to be an instance of the tail wagging the dog. If hate speech restrictions are justifiable, then their enforcement cannot undermine the normative legitimacy of antidiscrimination laws. If such restrictions are not justifiable, then the impact on anti-discrimination l...

There is a vigorous ongoing debate about the legitimacy of hate speech. For some, such speech should be protected by the right to freedom of expression. For others, there are good reasons why it should be regulated. My aim in this article is to lend support to the case for hate speech regulation. I shall do so by arguing that such regulation is necessary to prevent – or at least to reduce – the harm that hate speech would otherwise do. However, since the harmful consequences of acts of hate speech rarely immediate and clear, how can regulation of such acts be justified? My argument will be that hate speech contributes to a kind of collective harm which I shall call a ‘climate of hatred’. Exploring the normative consequences of this argument, I begin by rejecting the claim that a concept of ‘shared responsibility’ can be used to understand why individuals have a duty not to incite hatred against others. Instead I defend a notion of ‘collective responsibility’, according to which all hate speakers are responsible as a collective for the harms caused by the climate of hatred which their speech creates and sustains. I then explain how such collective responsibility both explains and justifies individual moral duties to cease and desist from speaking hatefully about others. I end this article by suggesting that the analysis I present here may be applied not just to the particular case of hate speech but to a broad range of collective harms, from cultural oppression to climate change.

Essays in Philosophy, 2006

Law and Philosopy 32/6 (2013): 701-28

This paper examines two recent contributions to the hate speech literature – by Steven Heyman and Jeremy Waldron – which seek a justification for the legal restriction of hate speech in an account of the way that hate speech infringes against people’s dignity. These analyses look beyond the first-order hurts and disadvantages suffered by the immediate targets of hate speech, and consider the prospect of hate speech sustaining complex social structures whose wide-scale operations lower the social status of members of targeted groups. In Heyman’s and Waldron’s accounts we find plausible insights into the nature of identity-based social hierarchies, and the harms that redound to subordinated people under the operations of such hierarchies. I argue, however, that both analyses are unsuccessful as justifications for the restriction of hate speech, because they do not ultimately provide reason to think that hate speech is responsible for creating or sustaining identity-based social hierarchies.

What are the limits of freedom of speech? Do freedom of expression and press have to be restricted when harm to others is entailed? What kind of harm takes place given that several countries consider hate speech punishable?

Social Theory and Practice, 2017

, among others, has forcefully argued that public hate speech assaults the dignity of its targets. Without denying this claim, I contend that it fails to establish that bans, rather than counterspeech, are the appropriate response. By articulating a more refined understanding of counterspeech, I suggest that counterspeech constitutes a better way of blocking hate speech's dignitarian harm. In turn, I address two objections: according to the first, which draws on contemporary philosophy of language, counterspeech does not block enough hate speech; according to the second, counterspeech blocks too much speech. Although these objections should qualify our optimism regarding counterspeech, I demonstrate that each can be turned, with even greater force, against hate speech bans.

Dartmouth Law Journal, 2023

Our purpose here is to assess the consistency of the Supreme Court’s hate speech jurisprudence with that of obscenity. We believe that there is an inconsistency between the Court’s treatment of the two categories regarding the role of content in ideas. The Court holds that obscenity, by definition, has no content in ideas and therefore is subject to government regulation. However, the question of whether hate speech has any such content is not defended, or addressed, in the few occasions in which the Court has made such judgments. We believe that to construct a definition of hate speech which also lacks content in ideas would be both consistent with First Amendment jurisprudence and the character of at least some bigoted speech. We focus on the reasons for which obscenity is subject to government regulation, with special emphasis on the absence of “redeeming” content. Then, in the next section, we explore the Court’s treatment of hate speech, focusing on the role of viewpoint discrimination, and exposing why we believe that no such viewpoints are necessarily present. We conclude with some thoughts on the implications of this analysis for First Amendment jurisprudence.

Law and Philosophy, 2018

Some authors claim that hate speech plays a key role in perpetuating unjust social hierarchy. One prima facie plausible hypothesis about how this occurs is that hate speech has a pernicious influence on the attitudes of children. Here I argue that this hypothesis has an important part to play in the formulation of an especially robust case for general legal prohibitions on hate speech. If our account of the mechanism via which hate speech effects its harms is built around claims about hate speech's influence on children, then we will be better placed to acquire evidence that demonstrates the processes posited in our account, and better placed to ascribe responsibility for these harms to individuals who engage in hate speech. I briefly suggest some policy implications that come with developing an account of the harm of hate speech along these lines. I. INTRODUCTION: HYPOTHESIZING ABOUT HIERARCHY The equal moral standing of all people, regardless of their social identity, is an axiomatic commitment in liberal democratic thought. And yet all liberal democracies have unjust de facto social hierarchies, correlated with social identity categories like sex, race, and religion, to some extent. By 'de facto hierarchies' I don't mean arrangements in which groups are officially disenfranchised or made into secondclass citizens. I mean systematic identity-based inequalities in material resources, labor conditions, social mobility, and social influenceinequalities which, in modern liberal democracies, exist alongside de jure guarantees of civic equality. The larger questions behind this paper are how to understand the causal forces involved in people Law and Philosophy Ó The Author(s) 2018