Hate-Speech Bans Are Consonant with Liberal Principles

Abstract

Modern liberal-democratic nations are divided over whether the right to freedom of expression should extend to hate speech – expression that abuses, degrades, or promotes violence or discrimination against others based on traits like race, nationality, religion, sex, sexual orientation, and gender identity. Most liberal democracies outlaw certain forms of public hate speech in order to protect the dignity, equality, and security of the targeted groups. By contrast, the United States rejects this position and holds that public hate speech generally should receive constitutional protection, although the law may impose some restrictions on private hate speech, such as epithets hurled in face-to-face confrontations.

In this essay, which is a contribution to the forthcoming Oxford Handbook of Hate Speech, I argue that bans on public as well as private hate speech can be consonant with liberal principles. Of course, there are many varieties of liberalism. This essay focuses on the writings of John Locke, which did much to lay the theoretical foundations of the modern liberal state. Moreover, Locke directly addressed the problem of speech that denies the equal status and rights of others. For these reasons, his thought offers one valuable starting point for considering how liberal principles should apply to hate speech.

The essay begins by sketching the main outlines of Locke’s political philosophy. I then draw on this discussion, together with our contemporary understanding of rights, to present a general theory of free expression which I call liberal humanism. On this view, free speech is based on respect for human freedom and dignity. But these same values also support other essential rights, ranging from bodily security to personal dignity to equality of citizenship. In general, the right to free speech does not entitle one to infringe the rights of others. I then use this approach to grapple with the problem of hate speech. In cases where that speech targets particular individuals, it may be restricted on the same grounds as other kinds of wrongful speech, such as threats, incitement, and fighting words. Although hate speech that occurs within public discourse poses a more difficult problem, I contend that this speech may be restricted on the ground that it violates the most basic right of all: the right to be recognized and treated as a human being and a member of the community. This position dovetails with the position that Locke took with regard to expression that sought to deny freedom and equality to religious minorities. Expression of this sort, he contended, should not receive legal protection because it invaded the rights of its targets and “undermine[d] the foundations of society,” which was held together by language, reason, and mutual recognition. The essay concludes by responding to two of the leading liberal arguments against hate-speech bans: that they violate individual autonomy and that they undermine democratic legitimacy.

Keywords: free speech, freedom of speech, free expression, freedom of expression, hate speech, racist speech, Locke, recognition, liberal, liberalism, rights, dignity, equality, humanism, toleration, tolerance, democracy, legitimacy, autonomy

JEL Classification: K10, K19