Viewpoint Discrimination, Hate Speech Law and the Double-Sided Nature of Freedom of Speech

Abstract

This essay written for a Symposium on Hate Speech Bans and Political legitimacy addresses a claim (made by James Weinstein and rejected by Jeremy Waldron) that that hate speech laws can undermine the legitimacy of the legal system as a whole and of particular ‘downstream’ laws, such as laws prohibiting racial discrimination.

The debate between Weinstein and Waldron appears to put aside two often dominant questions: whether hate speech causes harm (the harm question) and whether the power to impose or enforce hate speech law will inevitably be used to protect government interests, favour the powerful and disadvantage the vulnerable (the abuse of power question). Weinstein accepts that hate speech causes certain harms and aims his arguments, for the most part at least, at the narrow kind of law that Waldron wishes to defend. (Laws, like s18(1) of the Public Order Act (UK) that are directed at highly vituperative kinds of bigoted speech).

Leaving these questions to one side sharpens this debate by avoiding the need to engage with the resolve the messy questions of fact. It also raises the stakes: Weinstein defence purports to apply even though the speech protected is worthless and even if a law is well targeted and competently administered law. It apparently yields a very strong defence of freedom of speech.

However, I am not convinced that the question of legitimacy of hate speech laws can be resolved in this way. The argument from political legitimacy illustrates how the values underlying speech can be wielded both for and against the protection of speech, a phenomenon I have elsewhere described as the ‘double-sided’ nature of freedom of speech. Precisely for these reasons, as I have also argued elsewhere, the messy realities to which the harm question and the abuse of power question direct us cannot be easily avoided. Nor can Weinstein so neatly avoid questions as to the nature and worth of hateful speech.

Keywords: K00, K39

JEL Classification: freedom of speech, hate speech, comparative constitutional law