HATE SPEECH, LEGITIMACY, AND THE FOUNDATIONAL PRINCIPLES OF GOVERNMENT.

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

In a well-documented, intriguing, and intricately argued article, James Weinstein maintains that restrictions on hate speech are problematic because they tend to undermine the legitimacy of anti-discrimination statutes. (1) In so doing, he develops an argument previously made by Ronald Dworkin with sophistication and with greater complexity and needed detail. He argues not only that such restrictions can undermine the legitimacy of anti-discrimination laws with respect to their popular acceptance, but also with respect to the political obligation to obey them and with the morality of their enforcement. The general idea is that persons precluded from opposing a law are not legitimately subject to the law.

This argument seems to be an instance of the tail wagging the dog. If hate speech restrictions are justifiable, then their enforcement cannot undermine the normative legitimacy of antidiscrimination laws. (2) If such restrictions are not justifiable, then the impact on anti-discrimination laws is interesting, but not central to the case against them. (3) In fact, Weinstein argues that the restrictions violate fundamental principles of our government and what many regard as a fundamental principle of free speech. Any legitimate government depends on adherence to the proposition that government must treat all citizens as having equal moral worth, or as Ronald Dworkin put it--with equal respect and concern. (4) In addition, all citizens should be able to participate in the political process as political equals. Weinstein maintains that hate speech restrictions violate both these principles. In addition, he believes that such restrictions violate a First Amendment mandate against point-of-view discrimination.

I will argue that hate speech restrictions do not violate fundamental principles of government, nor are they instances of impermissible point-of-view discrimination. I will maintain that his claims about the legitimacy of anti-discrimination legislation are not as broad or precise as they might appear. And, in conclusion, I will maintain that there are concerns about some hate speech restrictions that are more telling than the matters to which he would call our attention.

1. RECONCILING HATE SPEECH RESTRICTIONS WITH FUNDAMENTAL PRINCIPLES OF GOVERNMENT AND FREEDOM OF SPEECH

   Weinstein maintains that hate speech restrictions are inconsistent with the view that government must treat all citizens as having equal moral worth. But this confuses respect for persons with respect for the speech with which they wish to engage. Free speech doctrine contains many permissible restrictions on speech, and it is not obvious that they show disrespect for persons. The doctrine permits government to enact speech restrictions involving some forms of advocacy of illegal action, some forms of defamation, obscenity, copyright violations and the like. Whatever the merits of these doctrines, they do not show disrespect for a citizen as a citizen. They do not take the position that a citizen lacks moral worth. At most, they show disrespect for a particular speech choice the citizen would like to make.

   So too, the notion that point-of-view discrimination is impermissible is an overgeneralization. Even in the United States, a more precise statement of the law would be that point-of-view discrimination is impermissible except when it is not. So erotic speech directed toward "good old fashioned healthy" interests in sex are protected though appeals to prurient interests in some cases are not. (5) Nasty things said about a person in some contexts are unprotected; (6) nice things said about the same person are protected. Advocacy of illegal action is unprotected in some contexts; (7) advocacy of legal action is protected. Two explanations for these distinctions seem clear. First, the unprotected speech causes harm and the protected speech does not. (8) Second, in some cases, such as obscenity (9) (or fighting words (10)), the speech is regarded as less valuable than other forms of speech. The notion that speech law does not look at the value of speech is falsified not only by obscenity and fighting words doctrine, but also by the view that some forms of sexually oriented speech, (11) commercial speech, (12) and private speech (13) should be less protected than more important political speech.

   There is a strong case for the view that racist speech causes harm and lacks substantial constitutional value. As I have written elsewhere, racist speech causes

   many well-documented harms: it is an assault on the dignity of people of color; it humiliates and causes emotional distress, sometimes with physical manifestations; it helps spread racial prejudice, not only stigmatizing people of color in the eyes of the societally dominant race but also in the eyes of [many of] the victims themselves, inspiring self-hatred, isolation, and... finally, it frequently creates the conditions for violence. (14) Equally important, like other forms of unprotected speech, racist speech should fall low in the hierarchy of First Amendment values. Most people who would protect such speech recommend that course despite its loathsome character, not because of it. To be sure, racist speech is not wholly bereft of First Amendment value. For example, it has marketplace value in that it reveals the existence of racists in the society. Nonetheless, its overall contribution to the market is negative in character. That is precisely because of the foundational premise of the system. Racists argue that government (and others) should not treat all citizens will equal respect and concern. If racists have their way, people of color will officially not be equal citizens and will not be treated as equals in private and public spheres. In other words, racists seek to topple the fundamental prerequisites of a legitimate society and government. As I have argued elsewhere, "[i]n this limited context, the best test of truth is the system's foundational premise of equality, not whether truth can emerge triumphant in the market place of ideas." (15) To suggest that speech causing...