HATE SPEECH, PUBLIC ASSURANCE, AND THE CIVIC STANDING OF SPEAKERS AND VICTIMS.

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

Jeremy Waldron and James Weinstein have opened up a promising line of inquiry regarding the legitimacy and propriety of hate speech regulation. In doing so, they have succeeded in reinvigorating a subject that had grown academically formulaic even while becoming alarmingly more salient politically and culturally. Together they have enriched our understanding with their specificity of argumentation, intellectual courage, fair-minded attentiveness to critics and counter-arguments, comparative law perspective, and genuine originality of conception. I find that each has shown me at least one significant problem in the other's analysis, a symmetry that I consider a tribute to both.

I.

I think that Waldron fails to grapple as fully as he needs to with the challenges to his argument posed by the European and Canadian cases discussed in Part Four of Weinstein's article. (1) Those are cases that involve relatively temperate instances of speech the substantive message of which challenges the civic standing of vulnerable minority groups. Waldron's intriguing claim that such minorities in a political community are entitled to the public good of assurance of their civic dignity has much to be said for it. However, it seems to me that this newly conceived public good is especially implicated when the view that certain vulnerable minorities are unworthy of civic status is publicly articulated in a temperate manner, precisely because that manner of articulation makes the view less easily marginalized. Waldron concedes that extreme outliers do not undercut the requisite public assurance. The danger lies in introducing categorical civic denigration into the way the polity looks, sounds, and feels. That alteration of civic "aesthetics," as Waldron puts it, is most likely to occur when noxious heretical ideas present as respectable, or at least eligible for respectful consideration. Hence the insidious danger of temperate articulation. Relatedly, Waldron's assertion, which plays a key role in his overall argument, that Western democracies have "settled" the question of how race and certain other traits central to identity bear on civic status is problematized more when heretical views relating to demography and political membership are put forward in the form of propositions rather than epithets. Waldron admirably avoids the mistake of conflating the multifarious instances of hate speech into one undifferentiated lump, but I believe that the subset of public utterance consisting of the temperate expression of civically noxious ideas poses more of a challenge to his position than he recognizes.

Waldron properly observes that "our debate is about hate speech restrictions as such, not about the least well-formulated of them." He urges opponents of hate speech regulation such as Weinstein "to consider the best case that can be made for regulation of this sort and the best drafting that has emerged from fifty years or more of legislative experience in most advanced democracies before attempting to show that nevertheless such regulations are wrong in principle." (2) He notes approvingly that Section 18(1) of the UK's Public Order Act outlaws only an especially aggressive subset of hate speech. To justify prosecution under that provision, the offender must employ words or gestures of a certain character: "threatening, abusive or insulting." Moreover, either the speaker must intend by his utterance to stir up racial hatred, or such hatred must be likely to be stirred up "having regard to all the circumstances." Waldron contrasts this "hate speech provision," the type of law he aims to justify, with less circumscribed "public order provisions," such as Section 5 of the same Public Order Act, that extend their prohibitions beyond speakers who are bent on stirring up hatred directly by means of extremely aggressive language. The more wide-ranging Section 5, (3) it should be noted, was the basis for what Weinstein argues were the misguided criminal convictions of relatively temperate purveyors of noxious opinions. The clear implication of Waldron's contrasting the two provisions is that speakers whose utterances are reachable only under Section 5 do not constitute a threat to the '"precious public good" of "a visible assurance offered by society to all of its members that they will not be subject to abuse, defamation, humiliation, discrimination, and violence on grounds of race, ethnicity, religion, gender, and in some cases sexual orientation." (4)

But is that true? Mark Norwood, described by Weinstein as "a regional co-ordinator of the British National Party, a far-right political organization," was convicted under Section 5 for displaying a poster of the World Trade Center in flames superimposed by a crescent-and-star surrounded by a prohibition sign and the statements "Islam out of Britain" and "Protect the British people." (5) Harry Hammond, an evangelical preacher, was convicted under the same provision for holding a placard in a public square saying "Stop Immorality," "Stop Homosexuality," "Stop Lesbianism," "Jesus is Lord." (6) Weinstein calls this conviction "an egregious example" of abuse of the power to punish hate speech, and so it is. That said, wouldn't British Muslims and homosexuals be justified in considering these public expressions at least as threatening to their civic standing by virtue of how their society "looks"--the visibility of hate--as public utterances that satisfy the intent or likely effects requirements of Section 18 (1) of the Public Order Act?

Interestingly, Weinstein's other examples of hate speech that ought never to have been the subject of punishment are different in a way that suggests Waldron would agree with that assessment. Shawn Holes was convicted and made to pay a large fine for responding to an interlocutor while speaking in a Glasgow street by opining that "Homosexuals are deserving of the wrath of God, and so are all other sinners, and they are going to a place called hell." (7) Another street preacher, Michael Overd, was convicted in Somerset for invoking Leviticus 20:13 for the proposition that homosexuality is an "abomination." Because that scriptural passage prescribes the death penalty as punishment, the judge found Mr. Overd's exclamation to be in violation of Section 5 of the Public...