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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.