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ABSTRACT
Among the most persuasive arguments against hate speech bans was made by Ronald Dworkin, who warned of the threat to political legitimacy posed by laws that deny those subject to them adequate opportunity for dissent. In his influential defence of hate speech bans, Jeremy Waldron addresses these objections. Dworkin’s concern with political legitimacy is misplaced, he argues, given the provision speech bans make for substituting permissible modes of expression for impermissible ones. I argue that this defence of speech bans misidentifies the ‘hate’ in hate speech with the ‘hate’ in hate crime. In contesting Dworkin, Waldron fails to contend with the necessarily entangled criminalisation of manner and viewpoint entailed in hate speech bans. By failing to grapple with the way in which every linguistic sign is constituted by both manner and viewpoint, Waldron sidesteps the ways in which hate speech bans undermine political legitimacy within liberal democracies.
Acknowledgements
I would like to express my deep debt to Eric Heinze for insightful comments on an earlier draft, to Riz Mokal for helpful conversations and to Nael Alqtati and Malaka Mohammed Shwaikh for assistance in obtaining figure 1.
ORCID
Rebecca Ruth Gould http://orcid.org/0000-0002-2198-5406
Notes
1 For Waldron’s appreciation of Dworkin’s legacy, see Jeremy Waldron, ‘Jurisprudence for Hedgehogs’ (2013) New York University Public Law & Legal Theory Research Paper Series Working Paper No. 13-45.
2 See James Weinstein, ‘Hate Speech Bans, Democracy, and Political Legitimacy’ (2017) 32 Constitutional Commentary 527 and Jeremy Waldron, ‘The Conditions of Legitimacy: A Response to James Weinstein’ (2017) 32 Constitutional Commentary 697.
3 A measure of the positive reception accorded The Harm in Hate Speech can be seen in Julian Rivers, Tariq Modood, Simon Thompson, and Karen Zivi, ‘Understanding and Regulating Hate Speech: A Symposium on Jeremy Waldron’s The Harm in Hate Speech’ (2014) 13 Contemporary Political Theory 88 (Dworkin’s position goes unmentioned here). For the resonance between Waldron’s views and European jurisprudence, see the fact sheet ‘Hate Speech’ produced by the European Court of Human Rights <www.echr.coe.int/Documents/FS_Hate_speech_ENG.pdf> accessed January 2019.
4 Although I draw here primarily from Waldron’s discussion of Dworkin in The Harm in Hate Speech, I also rely on another iteration of this argument, published the same year as Waldron’s book, and included in The Content and Context of Hate Speech: Rethinking Regulation and Responses, Michael Herz and Peter Molnar (eds.) (Cambridge University Press 2012); Jeremy Waldron, ‘Hate Speech and Political Legitimacy’ 329–40, with a response by Ronald Dworkin, ‘Reply to Jeremy Waldron’ 341–44.
5 Jeremy Waldron, The Harm in Hate Speech (Harvard University Press 2012) 174.
6 Ronald Dworkin, ‘Preface’ in Ivan Hare and James Weinstein (eds), Extreme Speech and Democracy (Oxford University Press 2009) v–ix. This work adapts some of the text in ‘A New Map of Censorship’ (n 7).
7 Ronald Dworkin, ‘A New Map of Censorship’ (2006) 35 Index on Censorship 131. This article is an abbreviated version of an article published under the same title also in Index on Censorship 1/2 (1994) 9–15.
8 Dworkin, quoting from his own email to Jeremy Waldron, in ‘Reply to Jeremy Waldron’ 341.
9 On the political value of anger, see Amia Srinivasan, ‘The Aptness of Anger’ (2018) 26 Journal of Political Philosophy 121, and Maxime Lepoutre, ‘Rage Inside the Machine: Defending the Place of Anger in Democratic Speech’ (2018) 17 Politics, Philosophy, & Economics 398.
10 While the distinctions between different types of legitimacy discussed here are inspired by both Dworkin and Waldron, they are my own.
11 The reference is to Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford University Press 1996) 15–35. Waldron (in ‘Hate Speech’ 698) presents Dworkin’s free speech legitimacy thesis as evidence for an evolution in his views in relation to legitimacy; however, as per n 7, Dworkin had already begun to articulate his perception of the link between free speech and legitimacy in 1994, two years prior to his defense of judicial review’s compromise with procedural legitimacy in Freedom’s Law.
12 Waldron (n 3) 698.
13 A similar argument has been advanced more recently by Eric Heinze in Hate Speech and Democratic Citizenship (Oxford University Press 2016). Whereas Dworkin articulates his case within a liberal rights framework, Heinze proposes instead that we view free speech ‘not only as an individual right, but as an essential attribute of democratic citizenship’ (4, emphasis in original).
14 Waldron (n 3), 698.
15 ibid 697–98.
16 ibid 704. Of course, it is possible to question whether the distinction between being enacted within a political process and affecting a political process adequately captures Dworkin’s idea, and to wonder why these two aspects should be seen as mutually exclusive.
17 Dworkin (n 7) 132.
18 ‘What is hate crime?’ Metropolitan Police <www.met.police.uk/advice/advice-and-information/hco/hate-crime/what-is-hate-crime/> (accessed 12 October 2018).
19 George P. Fletcher, The Grammar of Criminal Law: American, Comparative, and International (Oxford University Press 2007), vol. 1, 95.
20 Heinze correctly notes that ‘States maintaining hate speech bans often classify hate speech as one form of hate crime, suggesting that hateful expression itself already constitutes a harmful act without having to attach to any further material harm’ (Heinze (n 13) 19). However, far from limiting the plausibility of the hate speech/hate crime distinction, its blurring in contemporary jurisprudence makes distinguishing between the two all the more urgent as a matter of public policy.
21 Eric Heinze, ‘Viewpoint Absolutism and Hate Speech’ (2006) 69 Modern Law Review 576. Also see Laurence Tribe, American Constitutional Law (2nd edn, Foundation Press 1988) 838 n 16 (cited in Heinze, ibid).
22 Waldron, “Hate Speech,” 713.
23 The definition (available at <www.holocaustremembrance.com/sites/default/files/press_release_document_antisemitism.pdf>), has been discussed extensively in Rebecca Gould, ‘Legal Form and Legal Legitimacy: The IHRA Definition of Antisemitism as a Case Study in Censored Speech’ Law, Culture and the Humanities (Online First: https://doi.org/10.1177/1743872118780660).
24 Shirli Sitbon, ‘Despite a Call from French Jews, Macron and Le Pen Have Not Adopted the IHRA Antisemitism Definition’ The Jewish Chronicle <www.thejc.com/news/world/despite-call-from-france-jews-macron-le-pen-parties-have-not-adopted-ihra-antisemitism-definition-1.470306> accessed 27 September 2018.
25 I do not claim that Waldron, who carefully distinguishes between the causing of offense and the infliction of harm (see The Harm in Hate Speech, 129–20), would formulate the requirement in this way. I do however insist that, outside the realm of normative legal theory, this is how such speech bans are implemented. Further, I claim that it is intrinsic to the nature of speech bans that they will be interpreted and applied in this way.
26 The IHRA definition does not fit the classical model of a hate speech ban for a range of reasons, most notably its self-described ‘legally non-binding’ status. This example is however instructive because the lack of clarity around its legal status supports the arguments of those who insist that indeterminacy is intrinsic to the very idea of a speech ban. Equally, even though the UK government is not in a position to incorporate the definition into legislation, the anonymous individuals who posted these posters are threatened with criminal penalties if caught (technically because they were posted without a license on rather than due to the viewpoint they express; see n 28).
27 Eric Heinze, ‘Taking Legitimacy Seriously: A Return to Deontology’ (2017) 32 Constitutional Commentary 632.
28 Waldron (n 4) 336.
29 Waldron appears to be referencing his earlier article ‘Dignity and Defamation’ (2010) 123 Harvard Law Review 1596. His position concerning the ‘settled’ status of the debate around equality is criticized in Stephen Holmes, ‘Waldron, Machiavelli, and Hate Speech’ in The Content and Context of Hate Speech 350.
30 For further discussion in the context of free speech and racist speech, see David Kretzmer, ‘Freedom of Speech and Racism’ (1987) 445 Cardozo Law Review 445.
31 Waldron (n 4) 336.
32 ibid 336.
33 C. E. Baker, ‘Hate Speech’ in The Content and Context of Hate Speech, 37–80.
34 Along with The Harm in Hate Speech (105–43), another persuasive case for hate speech as a denial of dignity is made in Stephen Heyman, Free Speech and Human Dignity (Yale University Press 2008).
35 Weinstein (n 2) 540.
36 For the history of this position within translation theory, see Rebecca Ruth Gould, ‘Inimitability versus Translatability: The Structure of Literary Meaning in Arabo-Persian Poetics’ (2013) 19 The Translator 81.
37 See Rae Langton, ‘Speech Acts and Unspeakable Acts’ (1993) 22 Philosophy & Public Affairs 293, and Judith Butler, Excitable Speech: A Politics of the Performative (Routledge 1997).
38 Dworkin, ‘Reply to Jeremy Waldron’ (‘regulating hate speech is not, after all, a matter of balancing’ 342). For Dworkin’s concept of dignity, see Dworkin, Justice for Hedgehogs (Harvard University Press 2011) 191–218.
39 Personal correspondence on file with the author (13 October 2018).
40 See further, Heinze (n 13) 105–06.
41 See the example of the public order charge upheld against a distributor of antisemitic material in The Harm in Hate Speech, 204–7.
42 See Abrams v. United States 250 U.S. 616 (1919) and Brandenburg v. Ohio 395 U.S. 444 (1969), respectively. For the history of First Amendment jurisprudence, with emphasis on the Supreme Court’s relatively recent turn to free speech, see Laura Weinrib, The Taming of Free Speech: America's Civil Liberties Compromise (Harvard University Press 2016).
43 These views have long been cornerstones of post-Saussurean linguistics and literary theory, made most famous perhaps in Jacques Derrida, De la grammatologie (Les Éditions de Minuit 1967). Similar insights concerning the intrinsic relation between form and content in constituting the verbal sign underwrite much of the philosophy of language and rhetorical theory in Islamic thought. See Alexander Key, Language Between God and the Poets: Maʿna in the Eleventh Century (University of California Press 2018).
44 Amid a dense literature on this topic, Brian Klug’s reflections on causing offense within the Judaic tradition is particularly apt; see Klug, Offence: The Jewish Case (Seagull Books 2009).
45 For one example (of many) of an effort to use a the IHRA as a speech ban to engage in censorship, see the Simon Wiesenthal Center’s press release ‘Other Universities Should Follow British University’s Cancellation of “Israel Apartheid Week”’ (21 February 2017) <www.wiesenthal.com/site/apps/nlnet/content.aspx?c=lsKWLbPJLnF&b=8776547&ct=14985817>. The debate around the definition, including efforts to incorporate it into law, is summarised in Gould (n 24).
46 See most famously Mari J. Matsuda, Charles R. Lawrence III, and Richard Delgado, Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Westview Press 1993). Waldron relies primarily on Charles R. Lawrence III, ‘If He Hollers Let Him Go: Regulating Racist Speech on Campus’ (1990) Duke Law Journal 431, reprinted as chapter 3 of Words that Wound.
47 Henry Louis Gates, ‘Critical Race Theory and Freedom of Speech’ in Louis Menand (ed), The Future of Academic Freedom (University of Chicago Press 1996) 119–59, and Eric Heinze, ‘Truth and Myth in Critical Race Theory and LatCrit: Human Rights and the Ethnocentrism of Anti-ethnocentrism’ (2008) 20 National Black Law Journal 107–62.
48 For a critique of the symbolic defense of speech bans that further extends the illegitimacy thesis, see Heinze (n 13) 162–65.
49 Eric Heinze, ‘Hate Speech and the Normative Foundations of Regulation’ (2013) 9 International Journal of Law in Context 605.
50 Waldron (n 4) 337.