From Sisyphus's dilemma to Sisyphus's duty? A meditation on the regulation of hate propaganda in relation to hate crimes and genocide.

• Author: Gaudreault-DesBiens, Jean-Francois
• Position: Hate, Genocide and Human Rights Fifty Years Later: What Have We Learned? What Must We Do ?

The author examines central legal and philosophical issues pertaining to die regulation of hate speech. In particular, he evaluates file competing perspectives of the "causationist" approach, which requires a direct causal link between die expression it purports to regulate and the harm it allegedly causes, and die "correlationist" approach, which would regulate hate expression based on a rational correlation between die expression and file harm. In contrast, the correlationist approach adopts a preventive logic that seeks to structure attitudes by enforcing positive norms. After examining die theoretical underpinnings of these views, and reviewing their legal and philosophical pitfalls--particularly in their extreme forms--the author ultimately favours the correlationist approach to hate speech regulation. Civil society and a democratic tradition will prevent this type of regulation from leading down a slippery slope to state censorship. To avoid undue limitations to freedom of expression, however, only extreme hate expression should be regulated, that is, abusive expression, which is distinct from offensive expression in that it targets persons rather than ideas. There is no optimal way to balance equality and freedom of expression, nor to address the challenges that the enforcement of hate speech regulation entails. Analogizing with the myth of Sisyphus, the author refers to these challenges as the dilemma of the "Sisyphus state", concluding that this dilemma becomes a duty to regulate against abusive forms of expression, because a constitutional democracy cannot tolerate radical denials of the humanity of some of its citizens.

L'auteur examine les principales questions legales et philosophiques soulevees par la reglementation de la propagande haineuse, en particulier le debat entre les'partisans d'une approche qui requiert un lien causal direct entre l'expression et le dommage, et ceux d'une approche qui se contente d'une correlation rationnelle entre l'expression haineuse et le dommage. Cette derniere approche adopte une logique preventive qui cherche a structurer les attitudes dominantes par l'application de normes positives. Apres examen des fondements rationnels et des dangers qui guettent chacune de ces deux positions, surtout lorsqu'elles prennent des formes extremes, l'auteur prend parti en faveur de la seconde approche, basee sur la correlation rationnelle. La societe civile et la tradition democratique suffisent a prevenir la degenerescence de cette position en censure etatique. Toutefois, afin d'eviter d'imposer des limitations excessives a la liberte d'expression, seule l'expression haineuse abusive--qui se distingue de l'expression simplement offensante en ce qu'elle cible des personnes plutot que des idees--devrait etre reglementee. Il ne semble pas y avoir de maniere ideale de concilier l'egalite et la liberte d'expression, ou de resoudre les problemes soaleves par l'application des lois portant sur la propagande haineuse. L' Etat fait face a un dilemme entre son devoir de reglementer l'expression abusive et les difficultes inherentes a un tel exercice. Tel Sisyphe, il fait alors face a une tache potentieUement infinie--car une democratie ne peut tolerer une negation radicale de l'humanite meme de certains de ses citoyens.

The gods had condemned Sisyphus to ceaselessly rolling a rock to the top of a mountain, whence the stone would fall back of its own weight. They had thought with some reason that there is no more dreadful punishment than futile and hopeless labor. (1) Hate speech raises fundamental issues from legal, philosophical, and epistemological standpoints. It prompts us to think about individual and collective incarnations of hatred, how we apprehend this social phenomenon, and most important, how we characterize its dissemination. This article meditates on both the limits and the promises of regulations of hate propaganda, and more generally, of law itself. But why a "meditation"? Essentially because meditating implies a certain openness to unforeseen questions that arise, pele-mele, in the course of the meditation itself. This explains why this written "meditation" is structurally and formally different from a more traditional essay, where one reaches c by way of a and b, and where one generally wishes to convince someone of something. As such, the essay may be seen as an attempt to tame doubt and to provide certitude, whereas a meditation raises questions more than it does anything else.

While "hate speech" may aptly describe any word or utterance intended to injure, degrade, denigrate, or ridicule people on the basis of a distinguishing feature, this expression fails to capture what often leads to hate crimes and to genocide: the systematic, rather than individual, use of hateful discourse and the systemic nature of hatred that sometimes ensures its social acceptability. In such cases, hate speech, or hate propaganda as I prefer to call it, is ingrained in a system where the social degradation of the Other plays a central role in political discourse. In fact, hate propaganda contributes in and of itself to the creation of an imaginary Other. Dehumanized and depersonalized, depicted as threatening and as a potential enemy, this Other is indeed likely to become the enemy for those influenced by such propaganda. Huge consequences may follow. Depending on the circumstances, hate propaganda may create an environment where hate crimes are considered no different from other crimes. In such a case, what inspires them, that is, hatred, becomes obscured, thereby trivializing their qualitatively different nature. Worse than their being trivialized, however, hate crimes may sometimes become socially acceptable, and ultimately, desirable. From individual and isolated hate crimes committed in the private sphere, we move to more widespread incitement to hate, and finally we reach the realm of publicly-supported mass hate crimes--or genocide as public policy, to put it bluntly. This explains the nexus between hate propaganda, hate crimes, and genocide, a nexus that has too often surfaced during the twentieth century, especially, but not exclusively, in countries where democratic traditions were young and civil society weak. This nexus may be acknowledged by the socio-political realm, but not always by the legal one.

The juridical apprehension of the nexus between hate propaganda, hate crimes, and genocide stirs controversy in intellectual circles, especially in North America. (2) In particular, the question of the relative performativity (3) of some forms of expression, including racist speech, remains at the centre of philosophical and epistemological debates about the appropriateness of regulating these forms of expression. Can speech alone be characterized as assaultive, causing harm in and of itself? If yes, should we regulate it? Assuming that we should, how do we do so?

Although these questions are important, because acknowledging the possibility that speech alone may cause harm may ultimately induce us to rethink the classic dichotomy between speech and conduct, the legal apprehension of the nexus between hate propaganda, hate crime, and genocide requires no specific reference to the theory of performative speech. (4) Indeed, we need not ask ourselves: Should we consider this form of speech as an act or conduct because of the harm it causes in its own right? Understanding this nexus requires, instead, a reflection on the degree of causation constitutionally required to legitimize restrictions to freedom of expression regulating hate propaganda. Should the law necessitate a close and direct link between the expression it purports to regulate and the harm that this expression allegedly causes? A direct link imposes upon the regulator the burden of demonstrating the existence of "a clear and present danger" or an "imminent lawless action", to borrow from American legal terminology, as a consequence of the expression it purports to regulate (the "causationist" approach). In other words, the message conveyed must immediately induce one to act on it. The contrasting view holds that, for a law to be constitutionally permissible, it is enough that it acknowledge a strong rational correlation between the expression and the harm that it presumably causes, and that it act upon this acknowledgement (the "correlationist" approach).

While the causationist approach is based on a curative logic of imputation, the correlationist approach is inspired by a preventive logic of risk management. In a way, the heuristic process implied by the causationist approach requires a quasiphotographic capturing of the transition between a primary expressive state, conceptualized as essentially intangible, and a secondary behavioural state, conceptualized as essentially tangible. As Bollinger puts it, "[T]he tests of the 'clear and present danger' genre appear to focus on a very narrow range of potential social harm from speech--that is, on the risk that the audience will be persuaded to turn from talk to action of a kind deemed especially harmful to the society." (5) As such, the causationist approach implies a microscopic examination of a segment of social reality that excludes from its consideration any form of harm that is not immediate and entirely tangible. (6) Because it emphasizes the demonstration of a direct and almost unmediated causal link, this approach can surely be characterized as profoundly juridical in the classical sense, in a way akin to the approach in the law of torts.

It could be argued, however, that this profoundly juridical approach has been unduly influenced by a rather dated theory concerning the logic of scientitic discovery, which postulates that the pursuit of a certain scientific method may actually lead to the discovery of absolute scientific certitudes or truths. In keeping with this view, scientific knowledge comprises what has been definitely proven. For example, if a...