THE CONDITIONS OF LEGITIMACY: A RESPONSE TO JAMES WEINSTEIN.

AuthorWaldron, Jeremy (New Zealand law professor)
PositionArticle in this issue, p. 527 - Symposium: Hate Speech and Political Legitimacy

I

Thanks and congratulations are due to Professor Weinstein for his careful elaboration of the legitimacy-based argument against the regulation of hate speech. (1) This is not the first formulation of the argument. Ronald Dworkin set out a briefer version of it in a "Foreword" he contributed to a volume entitled Extreme Speech and Democracy, edited by Weinstein and Ivan Hare. (2) But his comments were not very extensive and perhaps they have been underestimated. Weinstein says that this line of argument is "often omitted from the litany of values [relevant to the hate speech debate] recognized by courts and commentators." (3) Weinstein himself thinks it is "the most powerful argument against hate speech bans." (4)

There have been gestures towards a political legitimacy argument in the work of other free speech scholars, who considered the significance of the connection between democracy and the foundations of the First Amendment. The first name that springs to mind is that of Alexander Meikeljohn; and some of Robert Post's writings have continued this theme. (5) Unfortunately that work was not much more than gestural: it did not propound the legitimacy argument in a way that opened it to serious analytic evaluation. But now at last--here--we have a version of the argument that is presented in a sustained and rigorous way, and the debate about free speech and hate speech is the better for it.

I like to think I have contributed something to this increase in rigor by subjecting Dworkin's version of the legitimacy argument to sustained exposition and critique over thirty pages in The Harm in Hate Speech, a book based on my 2009 Holmes Lectures at Harvard Law School. (6) I will continue that enterprise in this paper, harping away at some of Weinstein's formulations and questioning a few of the important points that he makes. This is not intended as disrespect, but as tribute to the seriousness of the argument he is making. For I think Weinstein agrees that it is important to ascertain whether the legitimacy argument against the regulation of hate speech is impressionistic only or whether it succeeds in identifying concerns that really ought to engage our attention.

The topic is important but challenging. "Legitimacy" has a rather loose meaning in political philosophy. Its meaning can veer between the normative and the empirical, and between the basis of a state's right to govern and the sentiment among its subjects that they have an obligation to obey. This indeterminacy is partly a function of its neglect in political theory, and we should welcome its being brought up in this context: better some discussion of it in the context of hate speech regulation than no discussion at all. When I began thinking about hate speech regulations, I was particularly struck by Ronald Dworkin's invocation of legitimacy for previously he had been rather dismissive of the topic. In his 1996 book Freedom's Law, Dworkin defended judicial review by saying that if a political decision improved democracy, it didn't much matter whether that decision came about through judicial procedures or through full participation. A judicial decision which established a basis for mutual respect, for example, would actually improve democracy by securing one of the conditions without which the moral claims of majority-rule would be non-existent. So there could be no democratic objection to it. (7)

Dworkin seemed to be suggesting that when the conditions of democracy were at stake, procedural legitimacy did not matter. And if this were accepted, presumably the same might be said about public debate as well. The fact that a matter was decided without a full public debate would not matter to legitimacy if the decision-procedure that was used improved the conditions of democracy. But now, in the argument about hate speech, legitimacy is being taken much more seriously as a procedural value. It matters not just what laws we have but how they were enacted--by whose votes and under what conditions of deliberation. Dworkin and Weinstein are insisting that the enforcement of good laws, however just they are in their content, may be illegitimate if the conditions under which they were enacted did not include unrestricted debate as well as the fair processes of representative democracy.

This twist in Dworkin's approach to legitimacy is particularly interesting because a case might be made that hate speech laws are actually aimed at securing the conditions of democracy in precisely the fashion that Dworkin indicated in Freedom's Law. He said there that majority-voting is hardly a legitimate mode of political decision among people who have contempt for one another or where there is hatred between various factions. Any partisan of democracy needs to be concerned therefore about actions that are calculated to stir up such hatred and contempt. Since that is precisely the concern of hate speech laws, a case can be made--if we accept Dworkin's view in Freedom's Law--that hate speech restrictions contribute positively to democratic legitimacy by helping sustain some of the conditions of democracy as well as detracting from democratic legitimacy--if Dworkin and Weinstein are right--by interfering with free speech.

In discussing a similar view held by Alexander Brown, (8) Weinstein says that it is difficult to weigh these opposite legitimacy effects against one another. He thinks one is systemic and the other isn't--"The work done by these two types of legitimacy is very different"--and this makes balancing difficult. (9) But that does not mean that Brown's concern can be dismissed or ignored. Back of all the points I am going to make in this essay responding to Weinstein is a worry that the argument about political legitimacy is just being wheeled into the hate speech debate opportunistically by people who have never otherwise shown that they take it seriously. I want to make sure that the argument is not just being rigged up for the purposes of the hate speech debate. One way of showing that it is not rigged would be to commit to following the legitimacy principle where it leads--in favor of some hate speech regulation as well as against it.

II

In this spirit, before addressing the substance of the case that Weinstein makes, I want to identify a few areas where his arguments are potentially misleading or where they exaggerate the concerns that he points to. The gist of his case is that hate speech restrictions placed upon speakers in a polity can sometimes--and do often--have the effect of diminishing the legitimacy of the measures that the speakers are discussing. That case is important and it needs to be addressed head on. But it is best to do so without distractions

A first point is that the case Weinstein is making obviously depends on the nature of the restrictions. A restriction on what may be said is one thing; the total exclusion of an individual from public discourse is another. Proponents of the legitimacy argument are sometimes as loose as they think they can get away with on this matter. (10) So, for example, there are passages where Weinstein appears to imply that hate speech restrictions lead to total exclusion. He talks about the "silencing" effect of hate speech laws. (11) And he quotes himself as having said in an earlier article that legitimacy becomes problematic "[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." (12)

It is as though such laws were to identify racists (for example) by name and forbid them from voting and from speaking. Maybe such legislation is imaginable: some regimes in recent memory have imposed comprehensive disenfranchisement upon individuals on account of their "hateful" views about socialism or whatever. But I know of nothing called "hate speech legislation" in modern democracies which has or is intended to have this effect. And I don't think we should take this possibility as our exemplar.

A more helpful formulation is that such legislation means that certain speakers are "forbidden from expressing a particular view." (13) But even this is hyperbole. Most hate speech laws forbid only speech acts that are intended to have a certain effect--namely the stirring up of hatred in a community against a section of or a group within that community. The self-same proposition uttered patently without such intention or in a manner or in circumstances in which it would not be reasonable for the speaker to have foreseen such an effect is not prohibited. (To this extent, I would like to qualify my concession in The Harm in Hate Speech that hate speech restrictions are undoubtedly content-based: they are sort of content-based...

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