HATE SPEECH LAWS, LEGITIMACY, AND PRECAUTION: A REPLY TO JAMES WEINSTEIN.

• Jurisdiction: United States
• Date: 22 September 2017
• Author: Brown, Alexander (British law professor)

Ronald Dworkin once remarked to me that he thought Robert Nozick was a highly skilled defender of the indefensible. I have the impression from reading James Weinstems interesting article that this is partly how he sees defenders of hate speech bans. (1) This is not how I see myself, of course; which is to say, I see myself as neither especially skilful nor as defending the indefensible. Indeed, given that, as I attempted to show in my recent book, (2) not only does virtually every person on the planet live under at least some form of hate speech law but also such law is marked by great internal variety, I rather suspect that what is indefensible is either rejecting or defending hate speech law en masse. I hope to bring this out in my contribution to this symposium. (3)

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-a-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." (4) 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.

I plan to make the aforementioned points in the course of responding to two main objections that Weinstein levels against the arguments I made concerning hate speech regulations and political legitimacy in Chapter 7 of my book. The first objection concerns my response to Dworkin's argument that if we introduce "upstream" hate speech regulations and thereby "intervene too soon in the process through which collective opinion is formed," then "we spoil the only democratic justification we have for insisting that everyone obey these [downstream] laws." (5) I argued in response to Dworkin that there might also be a sense in which hate speech bans are not a threat to but a requirement of political legitimacy. I suggested that the question of the political legitimacy of, say, the legal system, might turn on whether the legal system could be the subject of interpersonal justification and consensus among free and equal citizens. More precisely, I said "that political legitimacy, including the legitimacy of the legal system, itself depends upon its being possible, at least in principle, to justify that system to each citizen bound by it on the basis of fundamentals of justice that they cannot reasonably reject." (6) I also proposed that

members of minority or vulnerable groups could reasonably reject the following justification of an absolutist free speech doctrine. "For fear that hate speech law may put at risk the collective authorization... of downstream laws from which you benefit, we shall neglect to utilize the measures at our disposal to curb forms of hate speech that can be corrosive of a shared, public sense of the basic elements of your reputation, status and dignity as members of society in good standing." (7) I believe that this attempt to justify an aggressive free speech regime to the victims of hate speech would fail because they would rightly see it as violating fundamentals of justice. By "fundamentals of justice" I mean, following Waldron's definition, "propositions establishing everyone's right to justice and elementary security, everyone's claim to have their welfare counted along with everyone else's welfare in the determination of social policy, and everyone's legal status as a rights-bearing member of society." (8) These are, 1 believe, basic propositions that everyone can, and should, be willing to accept, and that, under certain circumstances, will constitute grounds for reasonably rejecting an aggressive free speech regime.

However, Weinstein objects that despite my having provided a legitimacy-based argument for hate speech bans. I have nevertheless failed to provide a like-for-like legitimacy-based argument in response to Dworkin. In order for a legitimacy-based argument to have traction against Dworkin's contention that upstream hate speech bans can spoil the legitimacy of downstream laws then, such an argument must also work at the level of the legitimacy of downstream laws, claims Weinstein. In his words,

even on the assumption that failure to enact hate speech laws does compromise legitimacy, it is, as Brown notes, the legitimacy of "the legal system" that has been diminished, not the obligation to obey or the morality of an enforcement of a particular law or laws.... It is difficult, however, to weigh a loss to systemic legitimacy against a detriment to the legitimacy of a particular law. The work done by these two types of legitimacy is very different. The concern of systemic legitimacy is, as Brown notes, identification with the legal system. In contrast, the concern about the legitimacy of a particular law that I have emphasized in this article is whether it is moral for the state to use force to make dissenters comply with a law with which they can reasonably disagree. (9) Weinstein has missed some important nuances in what I said about political legitimacy, however. For one thing, what I actually said was that "'political legitimacy, including the legitimacy of the legal system," itself depends on interpersonal justification and consensus among free and equal citizens. I used the term "including" in a non-exhaustive way, to mean at least this (but not necessarily only this). Indeed, the illustrative example I gave focused on the interpersonal justification of what I called "an absolutist free speech doctrine," which is only one feature of the system of law, albeit an important one. It is an open question whether a failure to justify this feature would constitute not just a deficit in the legitimacy of this feature but also a deficit in the legitimacy of the entire legal and political system. This would depend on whether the legal and political system as a whole could be the subject of interpersonal justification and consensus among free and equal citizens, given attempts to justify the totality of its constitutional laws, civil rights laws, public policies, and so on. At any rate, I believe that the question of political legitimacy based on interpersonal justification and consensus among free and equal citizens can be meaningfully applied to particular features of the legal and political system, including both upstream and downstream laws, as well as to the entirety of that system.

This clarification is important for understanding what I would say about the legitimacy of downstream laws such as those involved in Waldron's English landlord example. Waldron asks us to image a landlord who discriminates against English families of South Asian descent in a way that is prohibited by English antidiscrimination laws. At the same time, English hate speech laws, such as laws banning the stirring up of racial hatred, prevent the landlord from using threatening, abusive or insulting words or behaviour with either the intention or likelihood of stirring up hatred against Pakistanis defined as a racial, ethnic or national group. (10) Whereas Dworkin claims that upstream laws can spoil the legitimacy of downstream antidiscrimination laws--laws that protect the very people who are also protected by the upstream laws--Waldron contends that "if we had a law that was specifically tailored to prohibit only expression at the viciously vituperative end of this spectrum, it might be an open question whether it would have anything more than a minimal effect on legitimacy." (11) Weinstein criticises Waldron for intimating that the detriment to the legitimacy of the downstream law could prove to be "minimal." (12) But he also criticises me for failing to provide a like-for-like legitimacy-based argument in response to Dworkin. (13) However, I believe that my account of political legitimacy does have the wherewithal to say something about the political legitimacy of downstream laws based on interpersonal justification and consensus among free and equal citizens. Specifically, I think that it is quite possible to justify an antidiscrimination law even to those people who disagree with it and who are denied certain specific types of opportunities (but not all types of opportunities) to publicly argue against it. It might go something along these lines. "You have an obligation to obey antidiscrimination laws, and we have a moral right to enforce antidiscrimination laws, for the simple reason that the state has a duty to fight injustice and it is clearly unjust to discriminate against people in their access to jobs, housing, transport, services, and so forth, merely because of their possession of...