THE REGULATION OF HATEFUL AND HURTFUL SPEECH: LIBERALISM'S UNCOMFORTABLE PREDICAMENT.

Author:Maclure, Jocelyn
 
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The regulation of speech is a highly sensitive and always evolving ethical, political, and legal issue. On the one hand, hateful and hurtful speech is on the rise, especially, but not exclusively, with regard to the relationship between Islam and the West. We can also think of the radicalization of discourse brought about by the interactive phase of the Internet. On the other hand, demands for the suppression of certain forms of speech proliferate. After reviewing the argument for freedom of expression, I argue that while the notion of harm defended by Millian liberals is too narrow, an "offence principle" is too broad. After defending hate speech laws, I concede that such laws need to target only the speech acts that express the most severe forms of aversion and denigration toward the members of a specific group. I then reflect on the status of "hurtful speech", which I see as including the performative utterances that stop short of being hateful but nonetheless erode, through their illocutionary force and perlocutionary effects, the social standing and bases for self-respect of those who are targeted. I conclude that the free speech debate reveals a limit of liberal political morality and leaves liberal normative theorists with an uncomfortable predicament, as they have to rely more on the complementary role of pro-social personal dispositions and civic virtues than they generally wish to.

La reglementation du discours est un enjeu ethique, politique et juridique tres delicat et en constante evolution. D'une part, le discours haineux et blessant est en croissance, surtout, mais pas exclusivement, en ce qui concerne les relations entre l'Islam et l'Occident. Les dimensions interactives de l'Internet encouragent particulierement la radicalisation du discours. D'autre part, les demandes de suppression de certaines formes de discours proliferent egalement. Apres avoir considere l'argument en faveur de la liberte d'expression, je soutiens que la notion de prejudice qui est defendue par les liberaux s'inscrivant dans la lignee de Mill est trop limitee, mais qu'un > est aussi trop vaste. Apres avoir defendu les lois sur le discours haineux, je concede que ces lois doivent controler seulement le discours qui exprime les formes les plus severes d'exclusion et de denigrement envers les membres d'un groupe specifique. De plus, j'examine le statut du >, que je considere inclure des enonces performatifs qui ne sont pas haineux mais, neanmoins, qui erodent le statut social et les bases du respect de soi de ceux qui sont cibles par leur force illocutoire et effets perlocutoires. Je conclus que le debat sur la liberte d'expression revele une limite de la philosophie morale et politique de la tradition liberale et place les theoriciens du liberalisme normatif dans une situation inconfortable, car ces derniers doivent se soutenir plus sur le role complementaire des dispositions personnelles prosociales et des vertus civiques qu'ils le souhaitent generalement.

Introduction I. Free Speech and Harm II. Between Harm and Offence 1: Hale Speech A. Hate Speech, Inclusiveness and die Social Bases of Sell-Respect B. Circumscribing Hale Speech Laws III. Between Harm and Offence 2: Hurtful Speech IV. Liberal Political Morality's limits Introduction

The regulation of speech is a highly sensitive and always evolving ethical, political, and legal issue. On one hand, hateful and hurtful speech is on the rise, especially, but not exclusively, with regard to the relationship between Islam and the West. Islamophobic discourse is widespread in Western societies and some radical Islamists call for violence toward non-Muslims and "heretic" Muslims. We can also think of the radicalization and polarization of discourse brought about by the interactive phase of the Internet (social media, blogs, comments sections, etc.). On the other hand, demands for the suppression of certain forms of speech proliferate. Requests for "safe spaces" and "trigger warnings", for the condemnation of "microaggressions", and for a right not to be offended or insulted are burgeoning. (1) From this offence-averse standpoint, freedom of speech does not justify hurtful speech, and a broader and subtler notion of "harm" needs to be factored in the analysis of the scope of our freedom of expression.

In this piece, I will first briefly review the argument in favour of both freedom of expression and the harm principle. Starting from the suspicion that the notion of harm defended by Millian liberals is too narrow but that an "offence principle" is too broad, I will side with theorists such as Jeremy Waldron and Rae Langton who argue that an adequate version of the harm principle ought to include anti-hate speech laws. I will concede that such laws need to target only the speech acts that express the most severe forms of aversion and denigration toward a particular group. I will then reflect on the status of "hurtful speech", which I see as including the performative utterances that stop short of being hateful but which nonetheless erode the social standing and bases for self-respect of those who are targeted. I will then argue that the secular state has no ground for prohibiting blasphemous speech even when it is hurtful. I will conclude with the idea that the free speech debate reveals a limit of liberal political morality and therefore leaves liberal normative theorists with an uncomfortable predicament, as they have to rely more on the complementary role of pro-social personal dispositions and civic virtues than they generally wish to.

I. Free Speech and Harm

I start by taking for granted that freedom of expression is a basic human right that should enjoy robust legal protection. No right is absolute but, like other basic rights, the test for justifying its restriction should be demanding and when infringements are justified, they should be as minimal as they can be. I will not take sides here on whether freedom of speech has intrinsic or instrumental value. John Stuart Mill marshalled perhaps unsurpassed arguments in favour of the instrumental value of free discussion. He persuasively argued that the discovery of truth and the progress of reason in human affairs depend on the ongoing confrontation of ideas and possibility of criticism. Given our epistemic limitations, we need to be exposed to different points of view and to deliberate with others to see the flaws in our own beliefs. (2) Even thoughts that are demonstrably false should not be silenced because refuting flawed arguments helps us to establish the truth with greater clarity and strength. As Wittgenstein put it, "[o]ne must start out with error and convert it into truth." (3)

Tim Scanlon makes a powerful case for the intrinsic value of freedom of expression with an argument from autonomy. (4) As morally autonomous agents, we must have the freedom to express ourselves as we see fit and, equally importantly, we need to have access to the information and opinions communicated by others. The state should not judge for me what I should be exposed to. To be mature in Kant's sense--that is, to be in a position to think without tutors--I need to have access to others' beliefs and judge for myself which ones are true, enlightening, worthy, etc. (5) Censorship of others thus undermines my autonomy.

Both the consequentialist and the deontological arguments are powerful and show why strong reasons are required to justify the legal regulation of speech. That being said, even the most ardent defenders of freedom of speech agree that it is a limited right. At the very least, liberals agree with Mill that a version of the harm principle is required to prohibit expressive acts that can lead to violence or physical harm. For Mill,

the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. (6) So, the absolutist view of free speech can readily be brushed aside. Such an absolutist view was endorsed, perhaps only rhetorically, by Salman Rushdie in the aftermath of the tragic Charlie Hebdo attack. For him, "the moment somebody says 'yes, I believe in free speech but', I stop listening ... The point about it is the moment you limit free speech it's not free speech. The point about it is that it's free." (7) We can easily understand why Rushdie is a passionate advocate of free speech, but this view is obviously false. Freedom of speech does not allow calls for genocide on the radio. No one, Rushdie included I presume, defends the absolutist position. The hard question is what comes after the "but".

One can both recognize the value of freedom of expression and suspect that the harm principle is too narrow, that it protects speech acts that should be legally forbidden. In its original formulation, the harm principle seems to offer protection only against the physical harm that can be demonstrably caused by words or images. The harm principle appears to exclude the psychological and social forms of harm than can be caused by expressive acts, and it does not seem to authorize a probabilistic approach to prejudice. (8) What I have in mind is that if anti-gay or anti-Semitic tracts are distributed in a neighbourhood, we do not know if it will causally lead to some harm to gays or Jews. We can have good reasons to think that it increases the probability that the target of defamation will be assaulted, insulted or discriminated against, but the standard account of the harm...

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