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HATE SPEECH LAWS: EXPRESSIVE POWER IS NOT THE ANSWER

Published online by Cambridge University Press:  07 May 2020

Maxime Lepoutre Open the ORCID record for Maxime Lepoutre [Opens in a new window]
Maxime Lepoutre*
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University of Oxford
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Abstract

According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed.

Keywords

Hate speechHate speech lawsFreedom of expressionCounterspeechPhilosophy of languageExpressive power of law
Type
Research Article
Information
Legal Theory , Volume 25 , Issue 4 , December 2019 , pp. 272 - 296
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press

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Footnotes

*

For helpful feedback and discussion of previous drafts, I am deeply grateful to Dorit Bar-On, Joanna Demaree-Cotton, Matt Dougherty, Corrado Fumagalli, Charles Girard, Matthew Kramer, Henrik Kugelberg, Rae Langton, Ruairí Maguire, Cathy Mason, Louise Richardson-Self, Elise Rouméas, Bernhard Salow, Rob Simpson, Raphaëlle Théry, Lani Watson, Ralph Weir, as well as audiences at the 2019 Lyon Freedom of Expression Workshop, the 2020 ECPR Freedom of Speech Workshop, and the University of Sheffield. This research was generously supported by a grant from the John Templeton Foundation. The opinions expressed in this publication are those of the author and do not necessarily reflect the views of the John Templeton Foundation.

References

1. See, e.g., United Nations, International Convention on the Elimination of All Forms of Racial Discrimination (1965); Waldron, Jeremy, The Harm in Hate Speech (Cambridge, MA: Harvard University Press, 2012), 56–57CrossRefGoogle Scholar; Brettschneider, Corey, When the State Speaks, What Should It Say? (Princeton, NJ: Princeton University Press, 2012), 1Google Scholar; Langton, Rae, Beyond Belief: Pragmatics in Hate Speech and Pornography, in Speech and Harm, (Maitra, Ishani & McGowan, Mary Kate, eds., 72–93; Oxford: Oxford University Press, 2012), here 74–77Google Scholar; Simpson, Robert, Dignity, Harm, and Hate Speech, 32 Law and Philosophy 701n2 (2013)CrossRefGoogle Scholar; Heinze, Eric, Hate Speech and the Normative Foundations of Regulation, 9 International Journal of Law in Context 16 (2013)CrossRefGoogle Scholar. Some definitions of hate speech focus less on what it expresses and more on its likely consequences. For instance, the UK's Public Order Act of 1986 prohibits, among other things, speech that is likely to stir up hatred. However, because I examine the expressive dimension of legal regulations of hate speech, it is more useful for my purposes to characterize hate speech primarily in terms of what it expresses.

2. Delgado, Richard, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harvard Civil Rights-Civil Liberties Law Review 133–181 (1982)Google Scholar.

3. Waldron, The Harm in Hate Speech.

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9. For a philosophically sophisticated overview, see Brown, Hate Speech Law.

10. Delgado, Words That Wound, 148.

11. In theoretical discussions, see Bollinger, Lee, The Tolerant Society (Oxford, UK: Oxford University Press, 1986), 72Google Scholar; Kretzmer, David, Freedom of Speech and Racism, 8 Cardozo Law Review 513 (1987)Google Scholar; Matsuda, Public Response to Racist Speech, 2322; Partlett, David, From Red Lion Square to Skokie to the Fatal Shore: Racial Defamation and Freedom of Speech, 22 Vanderbilt Journal of Law 473 (1989)Google Scholar; Parekh, Bhikhu, The Rushdie Affair: Research Agenda for Political Philosophy, 38 Political Studies 695–709 (1990)CrossRefGoogle Scholar; Galeotti, Anna Elisabetta, Toleration as Recognition (Cambridge, UK: Cambridge University Press, 2002), 156CrossRefGoogle Scholar; Waldron, The Harm in Hate Speech, 80–81; Brown, Hate Speech Law, 240. In legal discussions, the expressive rationale for hate speech laws is explicitly advanced in R. v. Ali, Javed, and Ahmed (cited in Brown, Hate Speech Law, 241).

12. Hart, H. L. A., Law, Liberty, and Morality (Stanford, CA: Stanford University Press, 1963), 66Google Scholar. In debates about hate speech, see also Weinstein, James, A Constitutional Roadmap to the Regulation of Regulation of Campus Map, 38 Wayne Law Review 245–246 (1991)Google Scholar; Scanlon, Thomas, The Significance of Choice, in The Tanner Lectures on Human Values (Salt Lake City, UT: University of Utah Press, 1988), 214Google Scholar; Post, Robert, Interview with Robert Post, in The Content and Context of Hate Speech, (Herz, Michael & Molnar, Peter, eds., Cambridge, UK: Cambridge University Press, 2012), 33Google Scholar.

13. See, e.g., Scanlon, Thomas, A Theory of Freedom of Expression, 1 Philosophy & Public Affairs 204–226 (1972)Google Scholar; Baker, Edwin, Harm, Liberty, and Free Speech, 70 Southern California Law Review 979–1020 (1996)Google Scholar.

14. Bollinger, The Tolerant Society, 122.

15. Partlett, From Red Lion Square to Skokie to the Fatal Shore, 468. See also Waldron, The Harm in Hate Speech, 87–89; Brown, Hate Speech Law, 263.

16. Although my investigation focuses on the expressive and deterrence arguments, there may also be other arguments for hate speech laws. In particular, one might argue that hate speech laws are justified on the retributivist ground that they inflict deserved punishment on hate speakers. Importantly, the existence of this alternative justification does not significantly affect my central contention: that the expressive argument either does not work, or is parasitic on the deterrence argument—and, consequently, that those who embrace the expressive argument must first vindicate the elusive empirical claim that bans deter hate speech. Now, in light of these difficulties, one might recommend circumventing both the expressive and the deterrence arguments, and focusing on the retributivist argument instead. But this strategy also remains broadly congruent with one of my main points: that, unlike what proponents of the expressive argument often suggest, we cannot avoid empirical controversies surrounding bans’ causal effectiveness (whether at deterring hate speech, or at punishing hate speakers).

17. Brown (Hate Speech Law, 249) acknowledges this worry.

18. See note 11. Although Bollinger generally recommends tolerating bad speech, he nonetheless holds that legal prohibitions on such speech may sometimes be warranted. And, when doing so, he emphasises the expressive significance of such prohibitions (Bollinger, The Tolerant Society, 72–73).

19. For overviews, see Adler, Matthew, Expressive Theories of Law: A Skeptical Overview, 148 University of Pennsylvania Law Review 1363–1501 (2000)CrossRefGoogle Scholar; McAdams, Richard, The Expressive Powers of Law (Cambridge, MA: Harvard University Press, 2015)CrossRefGoogle Scholar.

20. This claim is especially widespread in debates about the expressive significance of legal sanctions and punishment. See, e.g., Feinberg, Joel, The Expressive Function of Punishment, 49 The Monist 400 (1965)CrossRefGoogle Scholar; Primoratz, Igor, Punishment as Language, 64 Philosophy 188 (1989)CrossRefGoogle Scholar; Kahan, Dan, What Do Alternative Sanctions Mean?, 63 University of Chicago Law Review 593 (1996)CrossRefGoogle Scholar; Duff, Antony, Punishment, Communication, and Community (Oxford, UK: Oxford University Press, 2001), 29Google Scholar; Bennett, Christopher, State Denunciation of Crime, 3 Journal of Moral Philosophy 288–304 (2006)CrossRefGoogle Scholar; Glasgow, Joshua, The Expressive Theory of Punishment Defended, 34 Law and Philosophy 602 (2015)CrossRefGoogle Scholar; Wringe, Bill, An Expressive Theory of Punishment (Basingstoke, UK: Palgrave, 2016), 60CrossRefGoogle Scholar.

21. Wringe, An Expressive Theory of Punishment, 57.

22. Partlett, From Red Lion Square to Skokie to the Fatal Shore, 469; Parekh, The Rushdie Affair, 705. In this paragraph, and the next, I am indebted to Brown's (Hate Speech Law, 241–242) excellent overview.

23. Galeotti, Toleration as Recognition, 156.

24. Matsuda, Public Response to Racist Speech, 2322.

25. Waldron, The Harm in Hate Speech, chap. 4. See also Kretzmer, Freedom of Speech and Racism, 456; Bollinger, The Tolerant Society, 122; Parekh, The Rushdie Affair, 705.

26. See, e.g., Bollinger, The Tolerant Society, 72; Partlett, From Red Lion Square to Skokie to the Fatal Shore, 470; Parekh, The Rushdie Affair, 156; Galeotti, Toleration as Recognition, 156–157.

27. Partlett and Galeotti come close to this position by asserting, respectively, that the function of bans is “largely” and “mainly” symbolic. See Partlett, From Red Lion Square to Skokie to the Fatal Shore, 473; Galeotti, Toleration as Recognition, 157.

28. See, e.g., Kretzmer, Freedom of Speech and Racism, 489; Brown, Hate Speech Law, 241–242.

29. Brown, Hate Speech Law, 246; Heinze, Hate Speech and the Normative Foundations of Regulation, 607–609.

30. Brown, Hate Speech Law, 246.

31. Heinze, Hate Speech and the Normative Foundations of Regulation, 609.

32. Gelber, Katharine and McNamara, Luke, The Effects of Civil Hate Speech Laws: Lessons from Australia, 49 Law & Society Review 644–645 (2015)CrossRefGoogle Scholar.

33. Ibid., 651–654. For discussion of how hate speech can take a coded form that is equally degrading, see Heinze, Eric, Hate Speech in Democratic Citizenship (Oxford, UK: Oxford University Press, 2016), 145–148CrossRefGoogle Scholar.

34. Partlett, From Red Lion Square to Skokie to the Fatal Shore, 467. See also Galeotti, Toleration as Recognition, 155–156; Parekh, The Rushdie Affair, 705; Kretzmer, Freedom of Speech and Racism, 456.

35. See, e.g., Feinberg, The Expressive Function of Punishment; Kahan, What Do Alternative Sanctions Mean?; Adler, Expressive Theories of Law; McAdams, The Expressive Powers of Law.

36. Gelber and McNamara, The Effects of Civil Hate Speech Laws, 655, emphasis added.

37. Bollinger, The Tolerant Society, 122. See also Partlett, From Red Lion Square to Skokie to the Fatal Shore, 468; Brown, Hate Speech Law, 263.

38. Partlett, From Red Lion Square to Skokie to the Fatal Shore, 459; see also 467. In debates about the law's expressive power more generally, see also McAdams, The Expressive Powers of Law, 123–124.

39. For an influential statement of this point, see Langton, Rae, Speech Acts and Unspeakable Acts, 22 Philosophy & Public Affairs 304–305 (1993)Google Scholar; and Langton, Rae, The Authority of Hate Speech, in Oxford Studies in Philosophy of Law, Vol. 3 (Gardner, John, Green, Leslie, & Leiter, Brian, eds., Oxford, UK: Oxford University Press, 2018), 125–126Google Scholar. In Raz's terminology, the notion of authority I use resembles “de facto authority” rather than “legitimate authority.” Whereas the latter can actually give people reasons to think and act in certain ways, the former is fundamentally about being viewed as providing such reasons. See Raz, Joseph, Authority and Justification, 14 Philosophy & Public Affairs 5–6 (1985)Google Scholar.

40. Partlett, From Red Lion Square to Skokie to the Fatal Shore, 467.

41. Maitra, Ishani and McGowan, Mary Kate, Introduction and Overview, in Speech and Harm (Maitra, Ishani & McGowan, Mary Kate, eds., Oxford, UK: Oxford University Press, 2012), 9–10CrossRefGoogle Scholar.

42. Brettschneider, When the State Speaks, What Should It Say?; Gelber, Reconceptualizing Counterspeech in Hate Speech Policy (with a Focus on Australia). For a defense of this view, see also Maxime Lepoutre, Hate Speech in Public Discourse 43 Social Theory and Practice (2017).

43. Ibid.

44. Brown, Hate Speech Law, 263.

45. Strossen, Interview with Nadine Strossen, 381. See also Heinze, Hate Speech in Democratic Citizenship, 164.

46. Partlett, From Red Lion Square to Skokie to the Fatal Shore, 468; Bollinger, The Tolerant Society, 72.

47. Primoratz, Punishment as Language, 200. See also Feinberg, The Expressive Function of Punishment, 400, 420–421; Kahan, What Do Alternative Sanctions Mean?, 600–601; Duff, Punishment, Communication, and Community, 29; McAdams, The Expressive Powers of Law, 124; Glasgow, The Expressive Theory of Punishment Defended, 616.

48. See, e.g., Skillen, A. J., How to Say Things with Walls, 55 Philosophy 517 (1980)CrossRefGoogle Scholar; Primoratz, Punishment as Language, 199.

49. Hanna, for instance, argues that even if there is some natural connection between punitive sanctions and disapproval, this does not entail that punitive sanctions are the only way of expressing intense disapproval. Note, however, that nothing will hinge on my rejection of the naturalist explanation. This is because I will later concede for the sake of argument that, whether this is for natural or conventional reasons, punishment may be uniquely capable of expressing intense disapproval. See Hanna, Nathan, Say What? A Critique of Expressive Retributivism, 27 Law and Philosophy 131–133 (2008)CrossRefGoogle Scholar.

50. See, e.g., Feinberg, The Expressive Function of Punishment, 402; Kahan, What Do Alternative Sanctions Mean?, 600; Glasgow, The Expressive Theory of Punishment Defended, 617.

51. Gert, Heather, Radzik, Linda, and Hand, Michael, Hampton on the Expressive Power of Punishment, 35 Journal of Social Philosophy 86–87 (2004)CrossRefGoogle Scholar; Hanna, Say What? A Critique of Expressive Retributivism, 135–148.

52. Kahan, What Do Alternative Sanctions Mean?, 630.

53. Ibid., 624; Glasgow, The Expressive Theory of Punishment Defended, 618.

54. Post, Interview with Robert Post, 26; Strossen, Interview with Nadine Strossen, 391.

55. Post, Interview with Robert Post, 26; Anderson, Elizabeth and Pildes, Richard, Expressive Theories of Law: A General Restatement, 148 University of Pennsylvania Law Review 1533–1545 (2000)CrossRefGoogle Scholar.

56. Marmor, Andrei, The Language of Law (Oxford, UK: Oxford University Press, 2014), chap. 2CrossRefGoogle Scholar.

57. Ibid.

58. Below, I describe a case where the state disapproves of hateful utterances while embracing the perspective they express. Note that this does not undermine my claim that condemning hate speech implicates rejecting the perspective it expresses. It is possible to implicate something without entailing it. This is why, as Davis explains, some kinds of implicature are said to be “cancellable.” See Wayne Davis, Implicature, Stanford Encyclopedia of Philosophy, 2014, https://plato.stanford.edu/entries/implicature/.

59. Waldron, The Harm in Hate Speech, 87–88, 93–96.

60. Ibid., 93.

61. For discussion of how omissions can perform communicative speech acts, see Swanson, Eric, Omissive Implicature, 45 Philosophical Topics 117–137 (2017)CrossRefGoogle Scholar.

62. Waldron, The Harm in Hate Speech, 87.

63. Note, however, that some forms of counterspeech operate in less overt or visible ways. See Lepoutre, Maxime, Can “More Speech” Counter Ignorant Speech? 16 Journal of Ethics and Social Philosophy (2019)CrossRefGoogle Scholar. For the sake of argument, I set aside this complication in what follows.

64. Ibid., 87, 88, 92, 93, 94, 96.

65. Ibid., 95–96.

66. Ibid., 87.

67. Ibid., 88.

68. Ibid., 87.

69. Ibid., 88.

70. McAdams, The Expressive Powers of Law, 123–124.

71. See, e.g., Simpson, Dignity, Harm, and Hate Speech, 724; Heinze, Hate Speech and the Normative Foundations of Regulation, 600; Gelber and McNamara, The Effects of Civil Hate Speech Laws, 656–657.

72. This may seem too quick. Waldron (The Harm in Hate Speech, 81) briefly asserts that the expressive dimension of hate speech laws would matter even in a well-ordered society, where no one engages in hate speech. By extension, one might think that the message expressed by hate speech laws would continue to matter even when all instances of hate speech have already been suppressed by bans. The key question here is why the message conveyed by hate speech laws continues to matter in such circumstances. Waldron's own cursory suggestion is that hate speech laws help to provide everyone, particularly members of vulnerable groups, with a “public and visible assurance of just treatment” (81, emphasis added). And it matters that people not only be treated justly, but also have the assurance that they will be treated justly. However, this answer (with its emphasis on the publicity and visibility of hate speech laws to all) is clearly in tension with the suggestion that hate speech laws' expressive dimension needs to be covert and implicit to potential targets of hate speech. If, by contrast, hate speech laws remain silent or invisible to potential targets, then it is no longer clear how their expressive dimension matters once hate speech has effectively been suppressed. After all, from the perspective of potential targets, this situation is indistinguishable from one where people happen not to engage in hate speech, though no hate speech laws exist. In this situation, then, the presence of hate speech laws contributes nothing once we control for the elimination of hate speech from public view. Thus, the case for thinking that the expressive argument for hate speech laws continues to matter even once hate speech has been deterred encounters a dilemma. If it emphasizes the visibility of hate speech laws (particularly to potential targets of hate speech), then it undercuts the basis for thinking that hate speech laws are expressively distinctive. But if it does not, then it is unclear why hate speech laws' expressive dimension continues to matter. I am grateful to Rae Langton for pressing me on this point.

73. Matsuda, Public Response to Racist Speech, 2375.

74. Ibid., 2378. See also Brown, Hate Speech Law, 263; Galeotti, Toleration as Recognition, 156.

75. Matsuda, Public Response to Racist Speech, 2378.

76. Ibid., 2379.

77. Brown, Hate Speech Law, 263.

78. E.g., Scanlon, A Theory of Freedom of Expression; Baker, Harm, Liberty, and Free Speech.

79. E.g., Post, Robert, Constitutional Domains: Democracy, Community, Management (Cambridge, MA: Harvard University Press, 1995)Google Scholar; Heinze, Hate Speech in Democratic Citizenship.

80. For a similar thought, see Matsuda, Public Response to Racist Speech, 2377–2378.

81. Ibid., 2378.

82. This is congruent with philosophical discussions of implicature. As mentioned in note 58, some kinds of implicature—namely, conversational implicatures—are “cancellable” by context or further utterances.