Hate-Speech Bans are at Odds with Central Principles of Liberalism

Law and Philosophy https://doi.org/10.1007/s10982-024-09508-1  The Author(s) 2024 MATTHEW H. KRAMER HATE-SPEECH BANS ARE AT ODDS WITH CENTRAL PRINCIPLES OF LIBERALISM (Accepted 3 May 2024) ABSTRACT. In line with my 2021 book Freedom of Expression as Self-Restraint – albeit in a much shorter compass – this essay will argue against the moral defensibility of hate-speech laws like those in the United Kingdom and Canada and the Antipodes and most countries of western Europe. Such laws contravene the moral principle of freedom of expression, and therefore contravene one of the central precepts of liberal democracy. Under that principle, a necessary condition for the moral permissibility of any law that proscribes some type or instance of communicative activity is that the activity in question is constitutive of serious communication-independent wrongdoing. Given the centrality of the notion of communication-independent wrongdoing to the principle of freedom of expression, we should begin here with an explication of that notion. In line with my 2021 book Freedom of Expression as Self-Restraint – albeit in a much shorter compass – this essay will argue against the moral defensibility of hate-speech laws like those in the United Kingdom and Canada and the Antipodes and most countries of western Europe. Such laws contravene the moral principle of freedom of expression, and therefore contravene one of the central precepts of liberal democracy. Under that principle, a necessary condition for the moral permissibility of any law that proscribes some type or instance of communicative activity is that the activity in question is constitutive of serious communication-independent wrongdoing. Given the centrality of the notion of communication* I am grateful to two anonymous readers for valuable comments that have prompted some salutary amplifications. I am also grateful to Andrei Marmor and David Shoemaker and the students in their Cornell University Philosophy Department graduate seminar for their incisive feedback on an earlier version of this paper. MATTHEW H. KRAMER independent wrongdoing to the principle of freedom of expression, we should begin here with an explication of that notion. I. COMMUNICATION-INDEPENDENCE My references to communication-independent misconduct or to communication-independent wrongfulness might mislead some readers because those references might be taken to suggest that the classifiability of an utterance as an instance of such misconduct (or as partaking of such wrongfulness) is not due to what the utterance has communicated. Let us have in mind here a couple of the sundry examples of communication-independent misconduct which I ponder in my recent book: the malicious shouting of ‘Fire’ in a dark and crowded theater, and the venomous urgings of an orator addressed to a mob outside the home of a corn-dealer. My discussion in this section will proceed with reference to those two examples – in order to make the discussion more concretely accessible – but its points are generalizable. As is evident, the shout in the theater forcefully expresses a message to its addressees. It is designed to induce some immediate life-endangering actions on the part of those addressees, but that effect is deliberately achieved by way of the alterations in their beliefs and attitudes that are brought about through the transmission of the admonitory message. Consequently, the wrongfulness of the shout supervenes on what has been communicated in the circumstances wherein the shout has occurred. Any satisfactory account of that wrongfulness has to make reference to the content and context of the utterance. Those features of the utterance are what warrant its being classified as the inducement of a dangerous public disturbance (or as an attempt to induce a dangerous public disturbance). In other words, the classifiability of the malicious shout as an instance of communication-independent misconduct is due to the message which the shout has conveyed and to the circumstances in which the conveyance of that message has occurred. Accordingly, if the adjective ‘communication-independent’ were supposed to indicate that the wrongfulness of the act of shouting ‘Fire’ is not due to the communicative import of such an utterance, then that adjective would be inapposite. However, when I characterize the wrongfulness of the utterance as communication-inde- HATE-SPEECH BANS pendent, or when I contend that the utterance can properly be subjected to sanctions as a communication-independent mode of misconduct, there is no suggestion that the wrongfulness is unattributable to the content and context of the message which the shout of ‘Fire’ has expressed. Rather, the point is that that shout belongs to a category of misconduct – the category of inducement (or attempted inducement) of a perilous public disturbance – that is not inherently communicative. Any number of potential or actual instances of such misconduct are communicative, and any number of potential or actual instances of such misconduct are non-communicative. These heterogeneous instances are categorized together on the basis of the wrong-making properties which they have in common. Those properties are instantiated by any endeavor to initiate or exacerbate a situation of dangerous public disorder, whether the endeavor is communicative or non-communicative in its character. Precisely because the actions that instantiate those wrong-making properties can be either communicative or non-communicative, the instantiation of those properties is communication-independent. And because the wrongness of any such action does not hinge on whether the action is one of the communicative instances or one of the non-communicative instances in the category of misconduct to which it belongs, its wrongness is likewise communication-independent. Let us now turn to the harangue by a firebrand orator who incites the members of a mob outside the home of a corn-dealer and goads them into undertaking a lethal rampage of violence against the corndealer. Patently, the fulminations of the orator are communicative; through them he intentionally conveys both a clear-cut message and some wicked sentiments to the members of the mob. Because of those communicative contents and because of the circumstances in which those contents are imparted, the speaker’s tirade is constitutive of his direct participation in a lynching. Given the proximity of his utterances to the exertions of violence against the corn-dealer, and given the role of his utterances in deliberately spurring the mob to proceed with those exertions, his declamations are properly classified as some of the initial stages of the violence. Their classifiability as such stages – their classifiability as his direct participation in a lynching – is due to their communicative contents and context. MATTHEW H. KRAMER Hence, when I claim that his diatribe constitutes a communicationindependent mode of m (...truncated)