The Harm of Hate Speech Legislation
o argue for hate speech legislation on the basis that it protects the dignity of individuals is to confuse an interest with a fundamental right, argues Ivan Hare. Not only is legislation ineffective, it helps disseminate the very thing it intends to suppress.
As should be clear from my subtle choice of title, I oppose legislation prohibiting hate speech. I do so for reasons of principle and pragmatism. Before I address them, I would like to say something about Principle 4.
I assume that in referring to speaking “openly”, Principle 4 is not intended to discourage people from expressing themselves about human difference figuratively or through their dress or conduct or in private. I shall assume that it means that when we engage in public discourse, we should do so with civility. Similarly, I see no reason why Principle 4 should be confined to speech about human difference. Why shouldn’t we express ourselves civilly whenever we wish to engage with others in a public forum? Subject to those clarifications, I would endorse Principle 4 as a useful guide to expressive behaviour in public.
However, it is clear from Timothy Garton Ash’s commentary and Jeremy Waldron’s response to it that we are taking about much more than a guide to behaviour. Some would advocate giving effect to this norm not just through legislation but also through criminal prohibition in the form of laws against hate speech. To do so would be an error, as the hate speech laws in existence in large parts of Europe and Canada are contrary to the free speech principle at a fundamental level.
The most convincing justification for free speech is that it is essential to our ability to engage in democratic self-governance. That is, our right to participate in the debates on issues of public importance that affect us all. Debates about race (such as immigration, accommodation, assimilation and so on) are central to public discourse in most modern democracies. To prohibit the expression of strongly worded and provocative views on the subject of race through hate speech laws deprives those speakers and their audience of their right to participate fully in that public discourse.