This post follows on from here.   Consider a society in which adultery is legal (most liberal democracies, in fact),…

Consider two possible societies; one in which members of a minority frequently see themselves as the target of hateful messages1 and one in which they have a much greater sense of dignity. I agree with Waldron (as I suppose virtually everybody of sound morals would) that we should desire the latter society, and that is the society that is ‘well-ordered’ (in the sense Waldron uses it). We want to live in a society that is well-ordered, in which all people may live their lives without fear or encountering hateful propaganda. It may seem that we should stop there – if that is what we want, then we should actively try to create that society and discourage all efforts to the contrary. But should we use regulation by the state as a means of bringing about that sort of society? Suppose we want to bring about a society that we consider well-ordered as a result of the fact that nobody interrupts each other. It seems to me that this society is ‘well-ordered’ in the sense that Waldron is talking about. Of course, someone interrupting another person is not as undesirable as someone handing out racist propaganda on the street. Waldron’s argument is not a question of degree or ‘drawing the line’; it is a question of bringing about well-ordered societies. While we want to discourage people from interrupting each other, it is clear that this is not the kind of act that should be regulated. So, even though we rely on the state to shape our society into one that is well-ordered, there are some things which are inappropriate to regulate. Again, this is not a question simply of whether the act in question is a grossly immoral act or not. We can be fined for parking our vehicle for too long in the same place. This is a relatively minor misdemeanour, and yet it does not seem inappropriate to prohibit it with a reasonable and proportionate punishment. The question therefore raised is this: what sort of acts should be prohibited by the state?

Jeremy Waldron in his recent book The Harm in Hate Speech suggests that there are kinds of hate speech that are justifiably regulated. He concentrates his arguments on a particular kind of harm; harm to the ‘dignity’ of individuals. ‘Dignity’ in this context has a special meaning; it reflects the social standing of an individual, and “entitle[s] them to be treated as equals in the ordinary operations of society.”2. Unless otherwise stated, I will use the term ‘dignity’ in the same way. What sort of ‘hate speech’ are we talking about? Waldron is primarily concerned with the visible environment that any individual must live their lives in. By ‘visible environment’ Waldron means the sort of society in which there are cross burnings by members of the Ku Klux Klan, leaflets handed out containing racist propaganda (which we might call ‘defamatory’), neo-Nazi parades through Jewish neighbourhoods, and so on3. It is this kind of outward expression of hateful views that has the most significant impact on the dignity of a member of a (say) racial minority. A member of a minority ends up going about their lives in such an environment, is put into a position of having to explain the hate speech to their children, and so on. This, according to Waldron, justifies the existence of hate speech regulation; we ought to protect these minorities from having their dignity impacted in this way.

What about the Stacey case? There seems to be a stark difference between his actions and those of Malema, in that Stacey did not seem to be trying to spread an idea or influence others to carry out any action themselves. We may, following Yong, describe Stacey’s hate speech as ‘targeted vilification’1 as he was directly addressing those he was stigmatising on the basis of their race. Unlike in the Malema case, it does not seem as though there is any clear case of incitement. Rather, his words were hurtful or offensive to both those he was abusing, and other onlookers. His conviction was for a “racially-aggravated public order offence”, but since his comments were directed at only a small number of people (and only became widely-seen as a result of those offended by it reproducing his remarks) it does not seem that, aside from merely causing offence, his remarks caused any indirect harm.

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” (2000 pp. 309). 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.

Having laid out what I consider to be a strong defence of freedom of expression, I must now consider the most common challenge to it: hate speech. In order to make the best case for hate speech legislation, we must first decide upon a working definition of what hate speech is. This definition will be imperfect in that it will not necessarily succeed in drawing a sharp boundary between exactly what is or is not rightly called ‘hate speech’. However, we are considering only whether or not there is some hate speech that should be restricted (as opposed to all), and so this is not a particularly important issue for my purposes.

Given the effect of the state restricting some of our expression on our autonomy, our rights should contain the freedom to express ourselves as we wish.

Another category of expression that Mill’s arguments do not seem to apply to are what Austin called ‘illocutionary acts’…