Viewpoint Absolutism and Hate Speech
Modern Law Review (2006)
31 Pages Posted: 5 Mar 2019
Date Written: 2006
All Western European states currently prohibit various forms of racist, sexist, anti-religious, homophobic, or other intolerant speech. Yet hate speech bans generate pervasive indeterminacy and contradiction. It might be assumed that they are no different in that respect from other laws that are subject to vagueness, but are nonetheless socially necessary. This article, however, rejects that assumption. It is argued that hate speech bans’ internal contradictions are not merely ‘penumbral’, but are pervasive, and cannot be re-drafted to eliminate that defect. In contrast to traditional marketplace, peacekeeping or deontological theories, a coherence theory is proposed to suggest that Western European hate speech bans are inherently discriminatory, and should be abolished. It is further argued that post-World War II models of a European social welfare state, sometimes invoked to justify limits on unbridled liberalism, do not plausibly justify hate speech bans, and indeed provide grounds for expanding, rather than constraining, free speech.
Keywords: free speech, First Amendment, legal theory, human rights, civil rights, civil liberties
JEL Classification: Z19
Suggested Citation: Suggested Citation