Laws prohibiting discrimination on the basis of characteristics such as race, ethnicity, religion, sex, or sexual orientation are an essential means by which modern liberal democracies promote equality and protect human dignity. Consistent with these laudable goals, most liberal democracies, with the notable exception of the United States, also prohibit hate speech, including expression that demeans people based on characteristics protected by antidiscrimination laws. Ironically, however, hate speech restrictions can undermine the legitimacy of antidiscrimination laws, both in terms of their popular acceptance but even more crucially with respect to the morality of their enforcement. For instance, laws forbidding people from expressing the view, as is the case in several European jurisdictions, that homosexuality is immoral or disordered, can destroy the moral justification of enforcing laws against sexual-orientation discrimination against religious dissenters. Conversely, the ability of Americans to freely oppose antidiscrimination laws by publicly expressing bigoted ideas about groups protected by these laws strengthens the legitimacy of enforcing these provisions even when doing so infringes upon deeply held religious convictions. In explicating this untoward effect of hate speech laws on the legitimacy of antidiscrimination measures, this Article explores more generally the relationship between free speech and political legitimacy, thereby explaining and supporting American free speech doctrine's exceptional antipathy to viewpoint-discriminatory laws of any variety.
Free speech is highly valued in liberal democracies because it promotes multifarious liberal and democratic values, including respect for individual autonomy and self-realization, (1) exposure of government incompetence and malfeasance, (2) and the promotion of a well-informed electorate. (3) There is, however, another crucial purpose of free speech that curiously is often omitted from the litany of values recognized by courts and commentators: (4) the opportunity for each individual to participate as an equal in the public conversation about society's collective decisions. Ronald Dworkin has offered a particularly lucid and powerful explanation of the importance of this participatory interest: "[I]t is illegitimate," Dworkin contends, "for governments to impose a collective or official decision on dissenting individuals, using the coercive powers of the state, unless that decision has been taken in a manner that respects each individual's status as a free and equal member of the community." (5) In his view, a fair democracy requires that each citizen have not just a vote in deciding the will of the majority but also "a voice":
[A] majority decision is not fair unless everyone has had a fair opportunity to express his or her attitudes or opinions or fears or tastes or presuppositions or prejudices or ideals, not just in the hope of influencing others (though that hope is crucially important), but also just to confirm his or her standing as a responsible agent in, rather than a passive victim of, collective action. The majority has no right to impose its will on someone who is forbidden to raise a voice in protest or argument or objection before the decision is taken. (6) Dworkin rejects the argument that there should be an exception to this principle based on the claim that no one has a right "to pour the filth of... race-hatred into the culture in which we all must live." Rather, he insists that we cannot suppress such expression "without forfeiting our moral title to force such people to bow to the collective judgments that do make their way into the statute books." We may and should, in his view, adopt laws to protect people from "specific and damaging consequences" of racism and other forms of intolerance in employment, education, housing, or the criminal process, among other settings. Yet we must not, he cautions, "try to intervene further upstream, by forbidding any expression of the attitudes or prejudices that we think nourish such unfairness or inequality." For if we intervene prematurely in the process through which collective opinion is formed, "we spoil the only democratic justification we have for insisting that everyone obey these laws, even those who hate and resent them." (7)
Similarly, I have written that "[i]f an individual is excluded from participating in public discourse because the government disagrees with the speaker's views or because it finds the ideas expressed too disturbing or offensive, any decision taken as a result of that discussion would, as to such an excluded citizen, lack legitimacy." (8) So if a person is forbidden from expressing a particular view about a proposed tax increase, whether the nation goes to war, immigration policy, or any matter of public concern, then to that extent and with respect to that citizen "the government is no democracy, but rather an illegitimate autocracy." (9)
Jeremy Waldron has vigorously challenged the view that "upstream" hate speech restrictions deprive "downstream" antidiscrimination measures of legitimacy. (10) Specifically, he questions how literally we should take the claim that legitimacy is "spoiled" by hate speech restrictions. For instance, Waldron asks, does a wealthy landlord really have no obligation to obey a law forbidding him from discriminating against English families of South Asian descent just because there is also a law that prohibits him from publishing virulently anti-Pakistani views? Or does the existence of this restriction make it morally wrong for government officials to enforce these antidiscrimination measures against the landlord? (11) Waldron concludes that the most plausible interpretation of this claim is that "the legitimacy of any given law is itself a matter of degree and that, on the moderate version of Dworkin's argument, the enforcement of hate speech laws diminishes the legitimacy of other laws without destroying it altogether." (12) In response to this criticism, Dworkin agreed that "[o]n balance Britain is entitled to enforce such laws, I think, but we are left with a deficit in legitimacy--something to regret under that title--because of the censorship." (13)
But here the agreement ends, for Waldron does not believe that we have much, if anything, to regret on this score. Rather, in his view, most hate speech restrictions in democratic countries "bend over backward" to assure that speakers have a lawful way to "express something like the propositional content" of bigoted views that become illegal only "when expressed as vituperation." (14) He therefore suggests that hate speech bans have only "a minimal effect on legitimacy." (15) In addition, Waldron contends that the weightiness of "protecting the basic social standing... of members of vulnerable groups" undercuts the credibility of the claim that hate speech restrictions impair the legitimacy of these laws. (16) Waldron usefully advances the inquiry by being among the first to directly engage, rather than talking past, (17) what to my mind is the most powerful argument against hate speech bans. (18) He is also to be credited with properly criticizing Dworkin and me for not adequately specifying what we meant in claiming that hate speech restrictions can deprive downstream antidiscrimination laws of legitimacy. The primary purpose of this Article is to fill this lacuna by explaining in detail how upstream speech restrictions can deprive downstream laws of legitimacy. I am enormously grateful to Waldron for spurring me to do so.
In several other crucial respects, however, Waldron's critique is deeply flawed. To begin with, he underestimates the extent to which even restrictions on extremely vituperative bigoted speech can diminish the legitimacy of downstream antidiscrimination measures. But much more crucially, he is mistaken in his assumption that such minimal restraint is all that the laws of most democracies actually impose on the ability of speakers to challenge contemporary orthodoxy about such matters as race, religion, and sexual orientation. (19) Far from imposing constraints only on "viciously vituperative" expression of bigoted ideas, hate speech laws and other forms of speech restriction have been employed, for instance, to punish people who without resort to vile epithets or other uncivil language criticized Islam or homosexuality.
In this Article I will argue that in some instances upstream restrictions on hate speech are so severe that they not only diminish but can potentially annihilate the legitimacy of downstream antidiscrimination laws. (20) Specifically, I will discuss the potential of these speech restrictions to destroy any political obligation of those restrained by these laws to obey the downstream antidiscrimination measures. Much more problematically, hate speech restrictions can render immoral the otherwise appropriate application of antidiscrimination laws to dissenters in cases involving competing fundamental interests such as religious liberty. And even in cases where these speech restrictions do not annihilate the legitimacy of these antidiscrimination laws, they can so profoundly diminish their legitimacy as to leave us with something very much to regret. This unfortunate effect on the legitimacy of antidiscrimination laws, in turn, tells strongly against the propriety of hate speech restrictions in a free and democratic society.
Part II explores the relationship between free speech and political legitimacy. It discusses, first, how the opportunity to participate as an equal in the political process is essential to such legitimacy and then explains the vital connection between free speech and democratic participation. Part III considers the effect on the legitimacy of downstream antidiscrimination measures on the assumption that the upstream restrictions on hate speech are, as Waldron claims, limited to highly vituperative hate speech,...