For many women and girls sexist and misogynistic language is an everyday experience. Some instances of this speech can be categorized as ‘sexist hate speech’, as not only having an insulting or degrading character towards the individuals to whom the speech is addressed, but also resonating with the entire group, contributing to its silencing, marginalization and exclusion. The aim of this article is to examine how sexist hate speech is handled in international human rights (...) law. The argument derives from the claim than that legal discourse should distinguish between ‘sexist speech’ and ‘sexist hate speech’, and that the later may be qualified as a form of violence against women. Then it analyses the approaches of two human rights protection systems—the United Nations and the Council of Europe system—towards the phenomenon of sexist hate speech, by taking their position towards hate speech in general as a point of reference. In both systems, sexist hate speech is being addressed more eagerly under the gender equality framework, including counteracting violence against women, than in their interpretation of hate speech under general human rights law. The article argues the importance of recognizing and addressing sexist hate speech both within the framework of gender equality instruments and anti-hate speech framework established by international human rights bodies. (shrink)

In ‘The Harm in Hate Speech’ Waldron’s most interesting and ground-breaking contribution lies in a distinctive epistemological role he assigns to hate speech legislation: it is necessary for assurance of justice, and thus for justice itself. He regards public social recognition of what is owed to citizens as a public good, contributing to basic dignity and social standing of citizens. His claim that hate speech in the public social environment damages assurance of justice has (...) wider implications, I argue: for hate speech conducted in private; for pornography; and indeed for any speech that thwarts knowledge of what justice requires. (shrink)

Hate speech is commonly defined with reference to the legal category of incitement. Laws targeting incitement typically focus on how the speech is expressed rather than its actual content. This has a number of unintended consequences: first, law tends to capture overt or obvious forms of hate speech and not hate speech that takes the form of ‘reasoned’ argument, but which nevertheless, causes as much, if not more harm. Second, the focus on form (...) rather than content leads to categorization errors. Hate speech taking the form of ‘reasoned argument’ is often legally characterized as either political or academic debate, and so is deemed both permissible and justified in societies where free speech principles exist. In this paper, I argue that it is important to identify instances of hate speech as hate speech, no matter how articulately or reasonably the speech is expressed. The danger in mischaracterizing an instance of hate speech by calling it academic or political debate is that it risks normalizing the views and sentiments that are expressed and accepting those views as an important part of our political and academic discourses. With reference to Habermas’ account of ‘distorted communication’, I propose different criteria for defining and understanding hate speech and suggest that there might be good reasons for interpreting the concept of incitement more broadly, so as to include these different kinds of it. (shrink)

In this article, my aim is to consider under what circumstances, and for what reasons, individuals may freely choose not to speak hatefully about others. Even if not threatened with legal sanction, why might they decide not to say something which they think they have good reason to say? My suggestion will be that there are various pro tanto reasons for individuals to restrain themselves from saying what they wanted to say. To be specific, I shall argue that such reasons (...) fall into three analytically distinct categories, which I shall describe as normative codes of civility, ethics and morality. Thus each of these codes may provide different sorts of reasons for not engaging in hate speech. My hope is that the results of this investigation may usefully inform a strategy which aims to combat such speech without resource to the law. (shrink)

This paper examines Mary Kate McGowan’s account of oppressive speech. McGowan argues that ordinary hateful speech can oppress by enacting discriminatory norms, and further, that this enactment sometimes renders the speech regulable under current United States law. In response, the paper raises two sets of questions. First, it asks about the contents of the norms enacted by a given hateful utterance, and specifically, about what determines those contents. Second, the paper also questions McGowan’s emphasis on the distinction (...) between causing harm and enacting (or constituting) harm. It argues that, contra that emphasis, this distinction doesn’t matter for the regulability of speech in McGowan’s central cases. (shrink)

There is much in Weinstein’s article to contemplate, but I shall limit myself to making the following four main points. First, I believe that debates concerning the normative standing of hate speech law are always improved by heeding the internal variety of such law, and although I can see something of that same care in Weinstein’s article, such as when he distinguishes between different forms of hate speech law based on relative detriment to the legitimacy of (...) so-called downstream laws, in some instances this care is lacking. Second, Weinstein plays up the importance of collective authorization or democratic legitimacy of downstream laws vis-à-vis “(a) the obligation of those restrained by the speech restriction to obey a downstream antidiscrimination law; and (b) the morality of enforcing the downstream measure against those whose participatory rights have been impaired by the upstream speech restriction.” These may be important aspects of what it means to detract from the legitimacy of downstream laws, but they do not exhaust the relevant aspects. Third, I think that Weinstein’s article ignores some important nuances in what I have argued about hate speech laws and political legitimacy, and ignores something that might be true of the relationship between political and democratic legitimacy, namely, it might be that political legitimacy takes lexical priority over and, therefore, cannot be traded off against, the collective authorization or democratic legitimacy of downstream laws. Finally, I believe that in describing my use of the precautionary principle as “plainly indefensible” Weinstein has done justice neither to the raw plausibility of that principle nor to how I applied it to the special silencing effects of hate speech. (shrink)

One of the most powerful arguments against state regulation of expression has, in recent years, been presented in a reinvigorated and developed form. The argument in question maintains that state regulation of expression undercuts the legitimacy of the law because it involves the suppression of a source of democratic contestation. The paper distinguishes between three importantly different versions of this legitimacy argument that existing work fails to clearly separate. Doing so is important because different forms of the legitimacy argument are (...) supported by different considerations, vulnerable to different objections, and have different implications. Further, the paper levels two serious objections to legitimacy arguments against hate speech regulation. Firstly, it offers a consolidated defence of an extant rejoinder to the legitimacy argument, based on the claim that some person’s speech can ‘silence’ the expression of others. Secondly, the paper challenges the claim that the regulation of hate speech is necessarily viewpoint discriminatory. (shrink)

Hate speech law can be found throughout the world. But it is also the subject of numerous principled arguments, both for and against. These principles invoke a host of morally relevant features and practical considerations . The book develops and then critically examines these various principled arguments. It also attempts to de-homogenize hate speech law into different clusters of laws/regulations/codes that constrain uses of hate speech, so as to facilitate a more nuanced examination of (...) the principled arguments. Finally, it argues that it is morally fitting for judicial and legislative judgments about the overall warrant of hate speech law to reflect principled compromise. Principled compromise is characterized not merely by compromise over matters of principled concern but also by compromise which is itself governed by ideals of moral duty or civic virtue. (shrink)

According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of (...) strength; considerations of directness; and considerations of complicity. These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed. (shrink)

In this article, I argue that we need a better understanding of the theoretical underpinnings of the current debates in international law surrounding hate speech and inchoate crimes. I construct a theoretical basis for speech acts as incitement to genocide, distinguishing these speech acts from speech as genocide and speech denying genocide by integrating international law with concepts drawn from speech act theory and moral philosophy. I use the case drawn on by many (...) commentators in this area of international criminal law, the trial of media executives for the roles they played in the Rwandan genocide through public speech acts by media entities insulting an ethnic group or advocating violence against an ethnic group. Each of these men were institutional leaders and were charged with using their positions within Rwandan society to distribute what I call genocidal hate speech, genocidal incitement speech, and genocidal participation speech. I argue for a distinction between these three types of speech, and a difference in individual criminal liability for the dissemination of each type of speech. I also argue that there should be a difference in individual criminal liability for speech acts within the context of an ongoing or recent genocide, and speech acts that can be separated from a site of mass violence. (shrink)

At the center of the hate speech controversy is the question whether it constitutes conduct. If hate speech is not conduct, then restricting it runs counter to free speech. But even if it could be shown that it is a kind of conduct, complicated questions arise. Does it necessarily follow that we restrict speech? Practically speaking, can speech even be restricted, either through new legislation or the enforcement of existing laws regulating conduct? Are (...) measures such as hate crimes legislation both useful and appropriate in protecting individuals and groups from violence? The present paper aims to address these questions by reconstructing and assessing Judith Butler’s important treatment of speech-acts and hate speech in her book Excitable Speech: The Politics of the Performative. (shrink)

In this paper, we argue that to properly understand our commitment to a principle of free speech, we must pay attention to what should count as speech for the purposes of such a principle. We defend the view that ‘speech’ here should be a technical term, with something other than its ordinary sense. We then offer a partial characterization of this technical sense. We contrast our view with some influential views about free speech , and show (...) that our view has distinct advantages. Finally, we consider racist hate speech. Here, we argue that if certain theorists are right about what some racist hate speech does, then such speech should fall outside the scope of the free speech principle, and so, should be as regulable as any non-speech action. (shrink)

No serious attempt to answer the question ‘What is hate speech?’ would be complete without an exploration of the outer limits of the concept(s). This book critically examines both the ordinary and legal concepts of hate speech, contrasting social media platform content policies with national and international laws. It also explores a range of controversial grey area examples of hate speech. Part I focuses on the ordinary concept and looks at hybrid attacks, selective attacks, (...) reverse attacks, righteous attacks, indirect attacks, identity attacks, existential denials, identity denials, identity miscategorisations, and identity appropriations. Part II concentrates on the legal concept. It considers how to distinguish between hate speech and hate crime and examines the precarious position of denialism laws in national and international law. Together the authors draw on conceptual analysis, doctrinal analysis, linguistic analysis, critical analysis, and diachronic analysis to map the new frontiers of the concepts of hate speech. (shrink)

Most Western democracies and international institutions have currently adopted a range of policies aimed at regulating hate speech. However, the kinds of target groups that hate speech regulations seek to protect have not been clearly defined yet. In a series of publications, Eric Heinze has challenged the coherence of such regulations. His core thesis is that hate speech laws have simply no place in longstanding, stable, and prosperous democracies. In this paper, I examine the (...) three main charges Heinze raises against hate speech laws—namely, discriminatory selectivity, impermissible censorship, and arbitrariness—and I seek to demonstrate that none of them can withstand critical analysis. (shrink)

The distinctly contemporary proliferation of pornography and hate speech poses a challenge to liberalism's traditional ideal of a 'marketplace of ideas' facilitated by state neutrality about the content of speech. This new study argues that the liberal state ought to depart from neutrality to meet this challenge.

This book examines the complex relationship between politics and hate speech laws, domestic and international. How do political contexts shape understandings of what hate speech is and how to deal with it? Why do particular states enact hate speech laws and then apply, extend or reform them in the ways they do? What part does hate speech play in international affairs? Why do some but not all states negotiate, agree and ratify international (...) hate speech frameworks or instruments? What are some of the best and worst political arguments for and against hate speech laws? Do political figures have special moral duties to refrain from hate speech? Should the use of hate speech by political figures be protected by parliamentary privilege? Should this sort of hyperpolitical hate speech be subject to the laws of the land, civil and criminal? Or should it instead be handled by parliamentary codes of conduct and procedures or even by political parties themselves? What should the codes of conduct look like? Brown and Sinclair answer these important and overlooked questions on the politics of hate speech laws, providing a substantial body of new evidence, insights, arguments, theories and practical recommendations. The primary focus is on the UK and the US but several other country contexts are also explored and compared in detail, including: Nigeria, Kenya, South Africa, India, China, Japan, Turkey, Germany, Hungary and Italy. Methodologically, the two authors draw on approaches and concepts from a range of academic disciplines, including: law and legal theory, political theory, applied ethics, political science and sociology, international relations theory and international law. (shrink)

In this paper we focus on the difficulty in judging what is called covert hate speech. We emphasize the need for a multidimensional framework when analysing covert hate speech in situ, and the need to consider the multifaceted dimension of such speech act to assess its performativity. To explain such need, we apply the test of the Rabat Plan of Action and adopt a pragmatic perspective to analyse a specific covert hate speech act, (...) considering such speech act as both an expressive and potentially performative act. We focus on the prosecution of hate speech against a woman holding a poster during an anti-safe pass demonstration. Her poster inferred a link between conspiracy theory, the government strategy addressing the Covid pandemic and many other collectives, primarily the Jewish community. Our analysis of the sign adopts a radically context-dependent methodology combining a pragmatic approach and the Rabat Plan of Action test. We then contrast our analysis with the legal and media perspective on the issue. We conclude by suggesting the benefit of integrating pragmatic analysis with application of normative set of rules such as the Rabat Plan of Action test, even though the fluidity of meaning always poses a challenge to any authority tasked with judging such communicative events. (shrink)

In May, 2016 the Diet passed a law on the “Promotion of efforts to eliminate unfair discriminatory speech and behaviour against people originating from outside Japan”, widely referred to as ヘイトスピーチ法 (_Heito Supiichi Hō_ /Hate Speech Law). For some residents of Japan it had been a long time coming. Without any laws specifically prohibiting racially discriminatory speech or writing, aggrieved parties had hitherto been forced to resort to indirect lines of protection. In 1999, for example, a (...) Brazilian national ejected from a jewelry shop displaying a poster saying “No foreigners allowed” obtained a favourable ruling citing Japan’s ratification of the International Convention on the Elimination of All Forms of Racial Discrimination; and in 2013 an injunction for defamation and obstruction of business was granted on behalf of a school for children of North Korean descent repeatedly subjected to provocative demonstrations. But others questioned the need to reinforce limits on freedom of expression even in the face of aggressive taunts, with some claiming that incidents of racial discrimination in Japan lacked the historical, entrenched and violent dimensions that had prompted hate speech laws in Europe and elsewhere. When the text of the proposed law became public there was also debate about its utility as such an abstract measure seemed inapplicable to many potential victims and lacked punitive sanctions. Against this criticism it could be argued that the law went about as far as the government could expect to go if it were to get it passed; that it appears to be curtailing a particularly aggressive form of hate speech; and that it has ushered in a number of more specific initiatives, especially at local level. This study will begin with the 2016 text itself, drawing on the semiotic framework of Systemic Functional Grammar to explore how it prioritises general principles over specific regulations. This textual analysis will be followed by a contextual account of why the Law was constructed as it was, how it has influenced awareness of hate speech, and where it fits in with an existing genre of non-coercive legislation in Japan. (shrink)

This paper examines two recent contributions to the hate speech literature – by Steven Heyman and Jeremy Waldron – which seek a justification for the legal restriction of hate speech in an account of the way that hate speech infringes against people’s dignity. These analyses look beyond the first-order hurts and disadvantages suffered by the immediate targets of hate speech, and consider the prospect of hate speech sustaining complex social structures (...) whose wide-scale operations lower the social status of members of targeted groups. In Heyman’s and Waldron’s accounts we find plausible insights into the nature of identity-based social hierarchies, and the harms that redound to subordinated people under the operations of such hierarchies. I argue, however, that both analyses are unsuccessful as justifications for the restriction of hate speech, because they do not ultimately provide reason to think that hate speech is responsible for creating or sustaining identity-based social hierarchies. (shrink)

The paper’s main goal is to compare laws banning hate speech with counterspeech as an effective method of curtailing hate speech. In the first part, the paper discussed three normative justifications for hate speech bans. Firstly, the line of argument developed by critical race theorists that assumes that hate speech leads to the direct harm and violation of individuals’ rights. Secondly, paper examines the Weimar model that rests on the assumption that (...) class='Hi'>hate speech can lead to indirect harm to members of vulnerable minorities by creating a toxic environment, which opens the door to discrimination and even violence. Thirdly, the justification which is derived from the idea that such forms of extreme public speech violate the basic values and principles – such as inclusiveness, equality and mutual respect - on which constitutional democracies are built. This approach extends its argument from general values to the status of citizens by arguing that hate speech violates the equal standing of citizens by attempting to exclude certain members of society from the process of democratic deliberation based on their ascriptive characteristics. The second part of the paper looks at counterspeech as an efficient approach to limit harms that arise from hate speech. The author argues that legal bans should be reserved only for the most extreme forms of hateful rhetoric, while counterspeech is a valid option for tackling all other forms of hate speech. (shrink)

_One of the strongest arguments against hate speech legislation is the so-called Argument from Political Speech. This argument problematizes the restrictions that might be placed on political opinions or political critique when these opinions are expressed in a way which can be interpreted as ‘hateful’ towards minority groups. One of the strongest free speech scholars opposing hate speech legislation is Ronald Dworkin, who stresses that having restrictions on hate speech is, in fact, (...) illegitimate in a liberal democracy. The right to express oneself freely concerning any political decision is, according to Dworkin, a core democratic principle; it is what self-governance – and hence liberal democracies – are built upon. Dworkin and many other free speech scholars based in the United States see hate speech legislation as a threat to expressing oneself freely and critically. I argue that Dworkin and other US-based free speech scholars tend to overlook actual hate speech legislation in countries where such laws have been implemented and have functioned for decades. Furthermore, I argue that the real threat against political speech lies not in hate speech legislation but rather outside of the law, namely, in private institutions such as universities and museums. Restrictions on political speech in various societal circumstances have been on the rise over the last decades – first and foremost in the US. I analyse why these restrictions on political speech are more widespread in the only Western country without laws against hate speech than they are in countries with implemented hate speech laws._ _Keywords_: political speech, hate speech, hate speech legislation, private institu-tions, universities, USA. (shrink)

The issue of hate speech has received significant attention from legal scholars and philosophers alike. But the vast majority of this attention has been focused on presenting and critically evaluating arguments for and against hate speech bans as opposed to the prior task of conceptually analysing the term ‘hate speech’ itself. This two-part article aims to put right that imbalance. It goes beyond legal texts and judgements and beyond the legal concept hate (...) class='Hi'>speech in an attempt to understand the general concept hate speech. And it does so using a range of well-known methods of conceptual analysis that are distinctive of analytic philosophy. One of its main aims is to explode the myth that emotions, feelings, or attitudes of hate or hatred are part of the essential nature of hate speech. It also argues that hate speech is best conceived as a family resemblances concept. One important implication is that when looking at the full range of ways of combating hate speech, including but not limited to the use of criminal law, there is every reason to embrace an understanding of hate speech as a heterogeneous collection of expressive phenomena. Another is that it would be unsound to reject hate speech laws on the premise that they are effectively in the business of criminalising emotions, feelings, or attitudes of hate or hatred. (shrink)

In line with my 2021 book Freedom of Expression as Self-Restraint – albeit in a much shorter compass – this essay will argue against the moral defensibility of hate-speech laws like those in the United Kingdom and Canada and the Antipodes and most countries of western Europe. Such laws contravene the moral principle of freedom of expression, and therefore contravene one of the central precepts of liberal democracy. Under that principle, a necessary condition for the moral permissibility of (...) any law that proscribes some type or instance of communicative activity is that the activity in question is constitutive of serious communication-independent wrongdoing. Given the centrality of the notion of communication-independent wrongdoing to the principle of freedom of expression, we should begin here with an explication of that notion. (shrink)

The speeches delivered by Former U.S. President Donald Trump during his last presidential campaign (2015–2016) included hateful remarks against Muslims and immigrants. This study explored strategies of hate speech used in Trump’s political discourse against out-groups. The data consisted of a corpus of Trump’s speeches and interviews. Our analysis was based on Whillock’s [ 48 ] criteria of hate speech and Erjavec and Kovačič’s [ 13 ] strategies of hate speech. The results revealed that (...) Trump employed re-articulation of meaning and renaming by attributing any problem to immigrants and Muslims to express hatred against them, using direct hatred words. His overt use of hate speech strategies stemmed from his legitimate power and social authority as a successful businessman in his field. (shrink)

In line with my 2021 book _Freedom of Expression as Self-Restraint_ – albeit in a much shorter compass – this essay will argue against the moral defensibility of hate-speech laws like those in the United Kingdom and Canada and the Antipodes and most countries of western Europe. Such laws contravene the moral principle of freedom of expression, and therefore contravene one of the central precepts of liberal democracy. Under that principle, a necessary condition for the moral permissibility of (...) any law that proscribes some type or instance of communicative activity is that the activity in question is constitutive of serious communication-independent wrongdoing. Given the centrality of the notion of communication-independent wrongdoing to the principle of freedom of expression, we should begin here with an explication of that notion. (shrink)

Purpose The purpose of this paper is to present a quantitative and qualitative synthesis of the diverse academic proposals and initiatives for preventing and eliminating hate speech on the internet. Design/methodology/approach The foundation for this study is a systematic review of papers devoted to the analysis of hate speech. It has been conducted using the Preferred Reporting Items for Systematic reviews and Meta-Analyses (PRISMA) protocol and applied to an initial corpus of 436 academic texts. Having implemented (...) the suitability, screening and inclusion criteria, this corpus was refined to a sample of 74 articles. Findings The main subject categories studied in this corpus of academic research are legal issues and social media. In the majority of the articles, the use of hate speech via social media is associated with five typologies: religion, cyber racism, political slurs, misogyny and attacks on the LGTBI community. The absence of ethical reflection is one of the major shortcomings of IT-focused research and analysis devoted to online hate speech. Practical implications To date various systematic reviews have been presented, and they focus on detecting or describing hate speech. These have used either the search appraisal synthesis analysis framework or the Cochrane network. The PRISMA protocol was applied for this study, and both Scopus and texts in German were included. To date no major, rigorous systematic review has been undertaken of proposals to combat hate speech. Originality/value The link between hate speech and poverty has not been studied in depth within the academic sphere. Tolerance and ethical compassion are not granted the attention they merit when it comes to analysing the phenomenon of hate speech. (shrink)

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 adequ...

This chapter contains sections titled: Hate Speech and the Law Two Theories of Rights Should Hate Speech be Free Speech? Hate Crimes and the Law.

The issue of hate speech has received significant attention from legal scholars and philosophers alike. But the vast majority of this attention has been focused on presenting and critically evaluating arguments for and against hate speech bans as opposed to the prior task of conceptually analysing the term ‘hate speech’ itself. This two-part article aims to put right that imbalance. It goes beyond legal texts and judgements and beyond the legal concept hate (...) class='Hi'>speech in an attempt to understand the general concept hate speech. And it does so using a range of well-known methods of conceptual analysis that are distinctive of analytic philosophy. One of its main aims is to explode the myth that emotions, feelings, or attitudes of hate or hatred are part of the essential nature of hate speech. It also argues that hate speech is best conceived as a family resemblances concept. One important implication is that when looking at the full range of ways of combating hate speech, including but not limited to the use of criminal law, there is every reason to embrace an understanding of hate speech as a heterogeneous collection of expressive phenomena. Another is that it would be unsound to reject hate speech laws on the premise that they are effectively in the business of criminalising emotions, feelings, or attitudes of hate or hatred. (shrink)

This essay consolidates some fragments of the contemporary theory of expressive freedoms, bringing together scattered conceptual distinctions (e.g., hurting and harming, tolerating and legitimating) and moves (e.g., the need to rectify hateful speech and to constrain harmful actions legally) into an account that is sensitive to the needs of abused groups but faithful to the libertarian tradition associated with Mill's harm principle. Accepting this principle as the fundamental condition warranting legal control of action, we explore legislative responsibilities for protecting (...) expressive freedoms through three additional presumptions. The chief of them is an expectation of epistemic rationality that limits occasions of harm requiring legal action. A presumption of enablement over punishment shows that criminal sanctions for hateful speech are almost never appropriate. A presumption of multiple responsibilities accepts that social sanctions may be appropriate where political coercion is not. (shrink)

This article addresses the captive audience doctrine, according to which it may be permissible, even under the First Amendment, for governmental authorities to pass laws that abridge freedom of expression for the sake of protecting the interests of unwilling recipients of unwelcome speech. More specifically, it examines the issue of whether or not the captive audience doctrine could be plausibly applied to circumstances in which persons are compelled by the facts of life in the Information Age to access messages (...) and content through the Internet and subsequently become unwilling recipients of unwelcome hate speech. (shrink)

Many legal jurisdictions permit victims of targeted hate speech to sue for damages in civil courts. In the US plaintiffs may sue for damages using the tort of intentional infliction of emotional distress. Indeed, back in 1982 Richard Delgado proposed the introduction of a new tort of racial insult to handle such cases. In South Africa plaintiffs can use the delict of injuria. Although there have been some successful lawsuits, the tort of intentional infliction of emotional distress has (...) been an unreliable means of recovering damages for psychological harms caused by targeted hate speech. One major obstacle to recovery in the US has been the tendency of courts to view the use of racial insults, for instance, as too ordinary or commonplace to count as ‘extreme and outrageous conduct’. Even Delgado’s tort of racial insult would not recognise as a cause of action the mere use of a racial insult; the insult must demean. But once again this opens up significant leeway for courts to treat many commonplace racial insults as non-demeaning. In South Africa the courts have interpreted the delict of injuria using the abstract test of whether the speech ‘impaired the plaintiff’s dignity’. The open-textured nature of this test has led courts to diverge in their understanding of the dignitary threat posed by almost identical forms of hate speech. In this article I argue that these two torts and one delict should be comprehensively rethought. At the level of theory, we should think of them as protecting people’s fundamental rights to human dignity and the expression of human dignity as well as people’s fundamental rights to civic dignity and confidence in their civic dignity. And, at the level of practice, courts should adopt what I am proposing as two new legal tests for degradation and humiliation as a way of interpreting and operationalising these two torts and one delict in cases of targeted hate speech. (shrink)

Some authors claim that hate speech plays a key role in perpetuating unjust social hierarchy. One prima facie plausible hypothesis about how this occurs is that hate speech has a pernicious influence on the attitudes of children. Here I argue that this hypothesis has an important part to play in the formulation of an especially robust case for general legal prohibitions on hate speech. If our account of the mechanism via which hate (...) class='Hi'>speech effects its harms is built around claims about hate speech’s influence on children, then we will be better placed to acquire evidence that demonstrates the processes posited in our account, and better placed to ascribe responsibility for these harms to individuals who engage in hate speech. I briefly suggest some policy implications that come with developing an account of the harm of hate speech along these lines. (shrink)

This review critically summarises Alexander Brown and Adriana Sinclair’s book, The Politics of Hate Speech Laws. The review proceeds by canvassing the main arguments presented in each of the book’s nine chapters, while also highlighting the book’s overarching themes and ideas. Ultimately it is suggested that the book will be of use to anyone interested in the political and philosophical aspects of the highly vexed issue of hate speech regulation. In particular the review praises the book’s (...) pluralistic, ecumenical style, arguing that readers are sure to find arguments within the book with which they can engage, regardless of their pre-existing commitments and values. However, the review also notes that the book’s breadth-over-depth approach has several drawbacks. It is suggested, for instance, that some of the key proposals in the book would have benefited from being explored in greater critical detail. (shrink)

The Hon’ble Supreme Court of India, in a landmark judgment, scrapped a draconian law [Section 66 (A)] that gave the police absolute power to put behind bars anybody who was found posting offensive or annoying comments online. This paper aims to examine the take of people on the “Free Speech via Social Media” issue and their attitude towards the way sensitive messages/information are posted, shared and forwarded on social media, especially, Facebook.,The research was carried out on a sample of (...) 200 social media users, all picked up randomly, from five Indian states/Union Territories. Data were collected through a questionnaire, and users were contacted through e-mail. Data collected were analyzed through the Kolmogorov–Smirnov (K-S) Z test.,The findings indicate that hate posts/messages are on the rise, and more and more users are joining in. Besides, prosecution happens only when the aggrieved party is influential or powerful.,The findings of this research give a strong insight into the social media behaviour of users in relation to hate contents/posts. The study establishes the fact that Indian people are in favour of free speech, but with a sense of restraint and responsibility. The work could form the basis for future research on various aspects of hate speech on social media. Researchers could study the trials and prosecutions that have happened over the past few years and whether punishment has acted as a deterrent.,The research is likely to be important for those involved in work on freedom of speech or hate speech through social media. Social networking sites such as Facebook would also get some insights into users’ perception towards free and hate speech mechanism on social media. (shrink)

This corpus analysis of linguistic and semantic features in French parliamentary debates concerning online hate speech regulation, highlights tensions between state powers and private rights. Two key themes are identified: first, the _problem of definition_: how such online content is defined in the debates, and second, the _problem of regulation_: how the debates negotiate the supra-jurisdictional and individual jurisdiction issues involved, in regulating both the global online content and the responsibilities of the owners of the platforms who manage (...) the content. For this analysis, the authors created a corpus of French National Assembly Examination Committee discussions and public sessions between July 2019 to January 2020 discussing the _Loi Avia _(Avia Law). The corpus was analysed using quali-quantitative methods. Overall, the study combines a top-down (global) and a bottom-up (local) analysis of the data, applying corpus semantic approaches (Lecolle et al. in Langages 210(2):35–54, 2018; Rastier in The Routledge handbook of semantics, Routledge, pp 507–522, 2015) to contextualize the analysis of the meta-discourse (Hyland in Meta-discourse: exploring interaction in writing, 1st ed. Bloomsbury Academic, Bloomsbury Collections, 2018. https://doi.org/10.5040/9781350063617 ). The analysis highlights the linguistic features revealing the power dynamics inherent within the discourse and counter-discourse of the dominant and opposition political parties respectively. (shrink)

This book addresses the question: "What should be the appropriate limits to free speech?" The author claims that it is the state, rather than abstract principles, that must provide the answer. The book defends a version of Hobbesian absolutism and rejects the dominant liberal idea that there is a right (human or civil) setting the boundaries of free speech. This liberal view can be known as the "principled defence of free speech", in which speech is established (...) as a constitutional principle that has priority over the state. The author instead offers an "unprincipled approach to free speech", suggesting that the boundaries of speech must necessarily be set by the state, which in liberal democracies means through social and political contestation. The final chapter applies the argument to the topic of hate speech and argues that it is appropriate to limit such speech when it causes harm and offense. The book will be of use to students and scholars across political theory, political science, sociology, philosophy and law. (shrink)

There have recently been a number of high profile political incidents, and legal cases, that raise questions about hate speech. At the same time, the tensions, and perceived conflicts, between religion and sexuality have become controversial topics. This paper considers the relationship between religious freedom, free speech and equality through an analysis of recent case law in Great Britain, Canada and the United States. The paper starts with a discussion of how conflicts between these values arise in (...) areas such as hate speech and explores the differences between the European and US approach to this issue. In Council of Europe member states there is an increasing use of the criminal law to regulate hate speech. This paper argues that criminalisation of hate speech poses a distinct risk to the values of free speech and proposes alternative non-legal responses such as a greater use of cultural policy. The paper also explores a range of cases where the religion and sexual orientation conflict has arisen in areas such as the workplace. An analysis of these cases suggests that although there is no perfect resolution of this issue, it is possible to develop a set of principles that encourage a balance between the values of religious freedom, free speech and equality even in difficult situations where there is a conflict between religion and sexuality. The paper concludes with some practical recommendations for managing the tensions or conflicts between religious freedom, free speech and equality in liberal democracies. (shrink)

Contemporary public discourse is saturated with speech that vilifies and incites hatred or violence against vulnerable groups. The term “hate speech” has emerged in legal circles and in ordinary language to refer to these communicative acts. But legal theorists and philosophers disagree over how to define this term. This paper makes the case for, and subsequently develops, the first corpus-based analysis of the ordinary meaning of “hate speech.” We begin by demonstrating that key interpretive and (...) moral disputes surrounding hate speech laws—in particular, surrounding their compatibility with the rule of law, democracy, and free speech—depend crucially on the ordinary meaning of “hate speech.” Next, we argue, drawing on recent developments in legal philosophy, that corpus linguistics constitutes a distinctively promising tool for ascertaining the ordinary meaning of “hate speech.” Finally, we offer a proof of concept, by outlining, and analyzing the interpretive and moral implications of, the first such study. (shrink)

Speech act theory has been applied to genocidal speech in an extension of its use in other forms of speech regulation. I detail how a misguided reliance on speech act theoretic tools has negatively impacted legal thinking in understanding direct and public incitement to commit genocide. I argue that undue factive and normative significance has been placed on the idea that incitement to genocide may be considered an illocutionary or performative speech act, rather than as (...) a perlocutionary act, as an inchoate crime. With attention to the role of causation in the regulation of incitement to genocide within a speech act framework, I clarify legal applications of speech act theory which have confused or displaced the appropriate questions underpinning genocidal speech regulation. In doing so, I reinforce the role of causation with respect to inchoate speech crimes, and particularly the potential merits of a preventative risk assessment model when identifying genocidal speech. I demonstrate that while these speech act accounts present unique issues for genocidal speech regulation, they also in part stem from prior work applying speech act theory to other speech crimes such as hate speech and pornography. (shrink)

The dignity approach to racist hate speech regulation maintains that hate speech ought to be regulated because it impugns targets’ dignity and poses a threat to their equal treatment. This approach faces the significant causal challenges of showing that hate speech has the power to erode its targets’ dignity and that regulations can successfully protect that dignity. My aim is to show how a friend of the dignity approach can resolve these challenges. To do (...) so, I borrow insights from the critical legal studies (CLS) approach to hate speech. Specifically, I argue that hate speech can erode its targets’ dignity 1) by constituting an act of discrimination, and 2) by enacting norms that call for treating targeted groups as inferior. Yet while I maintain that the CLS approach offers valuable resources for shoring up the dignity approach, I reject the CLS approach in favor of the dignity approach. (shrink)

This volume draws on a range of approaches in order to explore the problem and determine what ought to be done about allegedly harmful speech.Most liberal societies are deeply committed to a principle of free speech. At the same time, however, there is evidence that some kinds of speech are harmful in ways that are detrimental to important liberal values, such as social equality. Might a genuine commitment to free speech require that we legally permit (...) class='Hi'>speech even when it is harmful, and even when doing so is in conflict with our commitment to values like equality? Even if such speech is to be legally permitted, does our commitment to free speech allow us to provide material and institutional support to those who would contest such harmful speech? And finally, and perhaps most importantly, which kinds of speech are harmful in ways that merit response, either in the form of legal regulation or in some other form? This collection explores these and related questions. Drawing on expertise in philosophy, sociology, political science, feminist theory, and legal theory, the contributors to this book investigate these themes and questions. By exploring various categories of speech (including pornography, hate speech, Holocaust denial literature, 'Whites Only' signs), and attending to the precise functioning of speech, the essays contained here shed light on these questions by clarifying the relationship between speech and harm. Understanding how speech functions can help us work out which kinds of speech are harmful, what those harms are, and how the speech in question brings them about. All of these issues are crucially important when it comes to deciding what ought to be done about allegedly harmful speech. (shrink)

Democratic theories of free speech hold that the right to free speech is grounded in the nature of collective self-governance. The legitimacy of imposing laws on those who disagree with them depends on giving all citizens an equal right to participate in the lawmaking process, including the right to express their opposition. Ronald Dworkin argues that views of this kind are in tension with hate speech regulation. If we forbid the expression of prejudice, we undermine the (...) legitimacy of laws protecting minority groups. The aim in this chapter is to diffuse the tension Dworkin sees between a democratic justification of the right to free speech and hate speech regulation. This is done by developing an account of how our bodily rights constrain the right to free speech. (shrink)

According to philosophers like James Weinstein, our democratic values give us a compelling reason to tolerate hate speech. In fact, they argue that even if hate speech causes significant harms, our democratic values nonetheless sometimes call for a hands-off approach. In particular, they evoke the democratic value of citizens being free to criticize and voice dissent towards the laws that bind them. This paper seeks to establish two key points. First, that upon closer examination, the kind (...) of arguments that Weinstein presents against hate speech regulation is less than convincing. Secondly, that by building on Weinstein's discussion of the concept of viewpoint discrimination, we can construct a more convincing objection to hate speech regulation. That said, this more convincing objection falls short of calling for the abolition of all hate speech regulation, instead highlighting the need for transparency and consistency in the way governments regulate harmful speech. (shrink)

At a House hearing on December 5, 2023, the presidents of three universities—Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both of them were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. (...) At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by aggressive, threatening, or violent conduct. -/- These “demotions” augur even worse consequences, including termination, for less powerful faculty who say the “wrong” thing, in particular statements in support of Trumpism, an increasingly mainstream ideology that stitches together white supremacy, misogyny, a preference for autocracy over democracy, and several phobias—homophobia, Islamophobia, transphobia, and xenophobia. The question I address in this paper is whether these consequences are constitutional at public schools. Whose right is stronger—a public-school teacher’s First Amendment right to express pro-Trumpist sentiments or a public school’s right to maintain a fair, inclusive, and welcoming learning environment? In this article, I argue that the public school has the upper hand here, that it is indeed constitutionally permitted to prohibit political hate speech that contributes to a hostile learning environment. Still, I narrowly limit this prohibition to dehumanizing speech—that is, speech explicitly suggesting that some human beings are “lesser”, intrinsically less valuable, than other human beings. -/- One objection to this position is that public schools may not prohibit any speech, no matter how dehumanizing, because such prohibition amounts to constitutionally impermissible viewpoint discrimination. I argue, however, that viewpoint discrimination is an integral part of education and therefore constitutionally permissible. Education necessarily involves promoting some values over others. These values fall into seven categories: constitutional principles, the humanist virtues, successful character traits and behaviors, knowledge and truth, art and beauty, health (both mental and physical), and social goods (such as justice, peace, and rule of law). (shrink)

In this paper, I examine argumentative strategies that social movements can follow to counter hate speech. I begin by reconstructing the disagreement space of the abortion debate in Argentina as a polylogue, identifying the protests of the social movement Pañuelos verdes as argumentative contributions. I then describe two different forms of hate speech used in response to the movement’s protests. I argue that hate speech discredits the position of Pañuelos verdes in the abortion debate (...) and depicts their protests as social threats. Subsequently, I discuss three argumentative strategies that social movements can implement to address hate speech: arguing with hate speakers; advocating for a dialogue with restrictions; and opting for argumentative disobedience. Arguing with hate speakers aims to make hate speakers retract hate speech by exposing the undesirability of using hateful messages in argumentative exchanges. Advocating for a dialogue with restrictions aims to impose limited bans on public speech in order to ensure equal participation of arguers in argumentation. Finally, I propose the notion of _argumentative disobedience_ to describe communicative responses to hate speech that aim to bring bystanders in line with the position of social movements in public debates. (shrink)