Viewpoint Discrimination, Hate Speech Laws, and the Double-Sided Nature of Freedom of Speech

By Stone, Adrienne | Constitutional Commentary, Fall 2017 | Go to article overview

Viewpoint Discrimination, Hate Speech Laws, and the Double-Sided Nature of Freedom of Speech


Stone, Adrienne, Constitutional Commentary


The essays to which we are responding take the long and rather well-worn debate about hate speech in new directions. Weinstein's central claim, which Waldron rejects, is that hate speech laws can undermine the legitimacy of the legal system as a whole and of particular "downstream" laws, such as laws prohibiting racial discrimination.

I found three features of this debate especially eye-catching. The first is Weinstein's reliance on the concept of viewpoint discrimination. As a comparativist of freedom of speech, it is always striking to see an aspect of First Amendment law invoked as a core principle of freedom of speech, given that in its aversion to viewpoint discrimination (like much else) First Amendment law is highly unusual. (1) In other countries--like Canada and Australia--viewpoint discrimination is relevant to the determining the law's validity but does not carry anything like the weight it does in First Amendment law. (2)

Second, it is worth noting the apparently confined nature of the disagreement. Weinstein accepts Waldron's position that much of what qualifies as hate speech is of no value to public debate because in stable and mature democracies the commitment to elemental matters of racial and sexual equality and religious tolerance is not the subject of "serious or considerable contestation." (3)

Third, the debate, apparently at least, puts aside two often dominant questions: whether hate speech causes harm (the harm question) and whether the power to impose or enforce hate speech law will inevitably be used to protect government interests, favour the powerful and disadvantage the vulnerable (the abuse of power question). Weinstein accepts that hate speech causes certain harms and aims his arguments, for the most part at least, at the narrow kind of law that Waldron wishes to defend. (Laws, like section 18(f) of the Public Order Act (UK) that are directed at highly vituperative kinds of bigoted speech).

Leaving these questions to one side sharpens this debate by avoiding the need to engage with the resolve the messy questions of fact. It also raises the stakes: Weinstein defence purports to apply even though the speech protected is worthless and even if a law is well targeted and competently administered law. It apparently yields a very strong defence of freedom of speech.

However, I am not convinced that the question of legitimacy of hate speech laws can be resolved in this way. Viewpoint discrimination is not so obviously inimical to equal political participation as Weinstein suggests. On the contrary, a failure to enact hate speech laws may, consistently with Weinstein's account, undermine the legitimacy of the legal system generally and the application of individual laws to the victims of hate speech. Thus the argument from political legitimacy illustrates how the values underlying speech can be wielded both for and against the protection of speech, a phenomenon I have elsewhere described as the "double-sided" nature of freedom of speech. (4)

Precisely for these reasons, as I have also argued elsewhere, the messy realities to which the harm question and the abuse of power question direct us cannot be easily avoided. (5) Nor can Weinstein so neatly avoid questions as to the nature and worth of hateful speech. On this point, Weinstein's position is more complex than it first appears. Although he apparently accepts that much hate speech is of no value in public debate, he also believes that some of the expression caught by hate speech laws--notably speech motivated by religious belief--is worthy of protection precisely because it debates matters that are the subject of reasonable disagreement. If true, hate speech is a more variable and complex phenomenon than the argument otherwise admits. Although for the most part it appears that Weinstein defends hate speech even when--as in the case of speech denying basic racial and gender equality--there can be no reasonable case for its worth. …

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