HATE SPEECH - DEFINITIONS & EMPIRICAL EVIDENCE.

• Author: Gelber, Katharine
• Position: Response to article by James Weinstein in this issue, p. 527 - Symposium: Hate Speech and Political Legitimacy

James Weinstein's paper is a thoughtful, refreshing and considered contribution to the ongoing debate over whether or not hate speech laws can be justified in liberal democratic orders.

As a political scientist who has spent 20 years investigating, analyzing, and reporting on the introduction, implementation, and effects of hate speech laws, I wish to focus in my commentary on the empirical assumptions and claims that inform Weinstein's argument. I will focus on three. The first is his failure to conceptualize hate speech in a way that is commensurate with much of the philosophical literature focussing on definitions of hate speech. The second is his apparent reluctance to concede that hate speech (in both vituperative and more modest forms) is capable of harming political participation to the degree he would require, or in the ways he would require, in order for hate speech laws to be justifiable in political legitimacy terms. The third are his empirical claims about the operation of hate speech laws in practice.

WHAT IS HATE SPEECH?

On the first point, Weinstein's article lacks a clear conception of hate speech. To be fair, it is part of Weinstein's argument that the lack of a clear definition of hate speech is in fact part of the problem. In part, I agree with him. In particular, I find the use of the term 'hate' to be misleading in this context, since it implies that the defining feature of hate speech is virulent dislike of a person for any reason. As I will explain below, this is not my, or others', view of the defining feature of hate speech. Nevertheless, it is a term that is widely used in the literature.

Weinstein's complaint about the lack of definition of hate speech, however, is different from mine. He claims that, in spite of Waldron's claim that hate speech laws only restrict people from expressing their views in particularly vituperative ways, and not from expressing their points of view on any topic, hate speech laws do in fact result in poor applications in practice. He argues further that these applications put people through difficult and time consuming legal processes without good reason. I will deal separately with this latter claim below.

Weinstein navigates through this component of his argument by describing hate speech in his introduction as expression that "demeans." (1) Later, when discussing a case adjudicated in the European Court of Human Rights, he suggests that because Gillmerveen's discourse was "odious"' but had "little vituperation and no use of epithets," it was a case of the misapplication of hate speech laws. (2) He similarly laments the lack of vituperation and/or epithets in some of his other examples of the misapplication of hate speech laws. He implies quite strongly, therefore, that (at least) two of the defining features of hate speech, properly understood, are vituperation and the use of epithets.

With respect, this pays no attention to the considerable body of literature that has developed over the last few decades, which discusses how hate speech is expression that materially and substantively harms its targets in the saying of that speech (and not only in terms of a discreet, consequential harm arising from it). These speech-act theory informed perspectives both on racist hate speech (3) and on pornography (4) argue that harm can occur whether the hate speech is expressed in vituperative terms or not, and whether epithets are used or not. According to this literature, the defining features of hate speech are not whether it is vituperative and whether or not it contains epithets, but that it incurs harms discursively when the hate speech is uttered, and that these harms are analogous to other discriminatory harms, such as denying someone a service or denying them a job on the ground of their race or other relevant attribute.

Indeed, in this context Waldron acknowledges that he is not the first theorist to have developed a liberal argument as to the viability of regulating hate speech. In the late 1980s and early 1990s, Ronald Dworkin engaged in a fierce debate with other philosophers on the question of the regulation of pornography. In that debate. Dworkin argued that the regulation of pornography was not justifiable on democratic grounds. He viewed the case for the harm of pornography as inconclusive, and the silencing argument (5) (the argument that pornography as a type of hate speech operates to "silence" women by rendering their protestations against sexual mistreatment unable to achieve their intended outcome of stopping that mistreatment, and by rendering them unable to be heard as authentic and dignified speakers) as unconvincing. (6) In response, Jennifer Hornsby argued that he misunderstood the claim that pornography silences women. (7) Rae Langton argued, using a Dworkinian version of liberalism, that it was possible to make out a consistent case that pornography ought to be regulable as a violation of women's civil rights. (8) Jeremy Waldron also acknowledges, in his response to Weinstein in this volume, that Dworkin's view of political legitimacy can sustain an argument that hate speech laws themselves can contribute to democratic legitimacy.

The debate between Weinstein's response in this volume and Waldron's original piece echoes that earlier one, in the sense that Weinstein speaks past, and appears not to hear or recognize, the claims that hate speech acts harm in the saying of them, and that they harm in...