This post follows on from here.
In the chapter following his famous defence, Mill does in fact suggest that there may be some limit to expression:
“An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard. Acts of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind.”1
This has been seen to be a concession that if the expression of an opinion acts as an incitement to cause harm to others, then it should be restricted. The handing out of a placard may be restricted as it causes harm to others indirectly, in the same way as does a plot to cause death or destruction. It is not the expression of an opinion, but a deliberate attempt to cause harm to another that is the reason for the restriction. Jacobson has noted that this does not prohibit all harm, but only the harm done “specifically to those interests of others that ought to be considered as rights”2. The claim by those who believe that hate speech should be restricted is usually that hate speech causes indirect harm and thus, under Mill’s harm principle it is justifiable or desirable to restrict this kind of expression.
The Malema example concerns the most egregiously harmful instance of hate speech. It is an instance of what Yong terms ‘diffuse vilification’3, i.e. it is intended to spread the idea that ‘the Boer’ are akin to rapists and deserve to be shot. The potential consequence of Malema’s propaganda is that it may convince somebody to go out and shoot a white farmer. It is also ‘defamatory’ against those who it is directed against. Just as one individual might sue another for defamation, we might consider this ‘group defamation’4. This case appears to be a clear case of ‘incitement’, which is the reason given for many hate speech convictions. The idea that speech can be used to incite someone other than the agent to do some kind of harm is an interesting one. It raises all sorts of questions about the effect that the communication of ideas has on others, but that is an empirical question beyond the scope of this paper. For our purposes we should be content to note that there seems to be some sort of indirect harm done by acts of expression like Malema’s. Scanlon argues that expression does not in itself incite anything (at least in the sense that it causes one to commit some undesirable act):
“A person who acts on reasons he has acquired from another’s act of expression acts on what he has come to believe and has judged to be a sufficient basis for action. The contribution to the genesis of his action made by the act of expression is, so to speak, superseded by the agent’s own judgment. This is not true of the contribution made by an accomplice, or by a person who knowingly provides the agent with tools (the key to the bank) or with technical information (the combination of the safe) which he uses to achieve his ends. Nor would it be true of my contribution to your act if, instead of providing you with reasons for thinking bank robbery a good thing, I issued orders or commands backed by threats, thus changing your circumstances so as to make it a (comparatively) good thing for you to do.”5
This gives us a useful distinction between ordering, threatening or assisting someone to commit a criminal act, and merely ‘inciting’ them with rhetoric. On this view, the criminal responsibility should lie with the perpetrator of the criminal act, and not with those that ‘incited’ the act. If this is right, then Mill is wrong to say that the ‘incitement’ in his example above may “justly incur punishment”. Nevertheless, given the cultural context and the content of Malema’s expression, it really does seem to be harmful, and at least analogous to handing out placards to an angry mob outside the corn-dealer’s house as in Mill’s example. If his behaviour meant that more farmers ended up getting shot (or were more likely to end up getting shot)than would have done otherwise, then it seems that there is some sense in which Malema’s expression was harmful. Yes, the responsibility lies in the main with the shooter, but if we reasonably think that Malema ‘stirred them up’ then I think we may say he caused harm. With that in mind, a proponent of hate speech legislation may argue as follows: Hate speech causes indirect harm. One role of the state is to intervene when one or many of its citizens are harmed by another. So, the state should prevent harm by prohibiting the hate speech.
While this argument is a powerful one, I do not think it succeeds in light of the rights-based defence of freedom of expression outlined in the first section. If we take Scanlon’s distinction between giving an order (say) and incitement to commit violence, we see that Malema’s expression was at most the latter. While the state should actively prevent any harm to individuals that may result from Malema’s expression, Malema, (while his actions were grossly irresponsible and immoral) was not in fact giving any specific order to his acolytes, rather expressing his general dislike of ‘the Boer’. The intervention of the state to punish Malema seemed to ‘suppress people’s freedom to make decisions about behaviour or values’ which, according to Baker’s conception of autonomy the state should not do. I believe the Malema case to be one of the most extreme cases of hate speech, given the context and violent nature of the expression, so even the rights-based arguments may not seem strong enough to convincingly preserve Malema’s freedom of expression. Later on I will further consider the idea of regulation;when the state should regulate and when it should not, which should provide further reasons to think that actions like Malema’s should not be criminalised.
1 Mill, J.S., (2008), On Liberty and Other Essays. Oxford: OUP, pp.62
2 Jacobsen, D., (2000) “Mill on Liberty, Speech, and the Free Society”. Philosophy & Public Affairs, Vol. 29, No. 3 (Summer, 2000), pp. 309
3 Yong, C., (2011) “Does Freedom of Speech Include Hate Speech?” Res Publica 17 (4):385-403. pp. 396
4 cf. Waldron, J. (2012) The Harm in Hate Speech. Cambridge, MA: Harvard University Press, pp. 39-41
5 Scanlon, T.M., (1972). “A Theory of Freedom of Expression”. Philosophy and Public Affairs, Vol. 1, No. 2. (Winter, 1972), pp. 212