In an issue of Legal Theory last year, Maxime Lepoutre put forward an argument against hate speech laws. It’s worth seeing if we can sketch out a credible version of his argument that’s accessible, and then if it helps us to develop public intuitions about a complex area of law.
It is no secret that I am strongly in favour of hate speech laws. A lot of my justification for hate speech laws is situated in scepticism about the inherent value of speech. If most speech acts are worthless, then toxic speech like hate speech is even harder to consider worthy of protection. Rather than being a restriction of speech, hate speech laws are properly construed as a carve out of the protections that society affords speech. But not a lot of this is accessible and not relevant to Lepoutre’s argument, so it’s mere prologue to the main course of looking at his argument.
Lepoutre is taking aim at the much more mainstream accounts of hate speech laws within the liberal tradition. First, people should be allowed to do whatever they want unless there is some reason to restrict that freedom. Second, there’s a kind of private-public partnership deal with regulation: the State only needs to restrict people’s freedoms if social forces are proving to be insufficient.
The key form of this social force is ‘counterspeech’. The general idea is that the State shouldn’t play a role in regulating speech because good citizens will speak out to denounce the hate speech. At it’s simplest, this idea has an uncanny resemblance to the argument that ‘The best way to deal with a bad guy with a gun is a good guy with a gun’. Lepoutre’s idea is much more sophisticated: his idea of counterspeech requires the State to be an active leader of public debate, including ‘a host of expensive and taxing measures, such as erecting historical monuments and enacting aggressive civil rights legislation.’ It might be worth raising an eyebrow at the suggestion that we replace hate speech laws with historical monuments, but it’s not an outright silly idea. It’s not enough to suppress the bad; Lepoutre wants the State to give greater platforms to the good.
Time to roll up our sleeves and get into his argument. What are the ways to justify hate speech laws? The obvious intuition is empirical justifications: look at the actual harm that hate speech causes. Some sophisticated equipment could detect the harm that hate speech causes, and then we could verify that hate speech laws reduce that harm.
The problem is that empirical demonstrations of the actual harm are fraught. There’s not much data and the data we’ve got is unhelpful. Lepoutre notes an Australian study (Gelber and McNamara 2015) that, despite our hate speech laws, ‘the incidence of hate speech has hardly decreased (and in some contexts has actually increased) since the introduction of hate speech laws.’
So the ascendant argument is less empirical and more symbolic: hate speech laws are a statement of support for vulnerable communities. A State should pass hate speech laws because they want to promote messages of equality and tolerance.
Lepoutre hones in on this ascendant argument: ‘even if hate speech laws can send an important message […] could we send this important message, without bans, via the counterspeech that opponents of bans typically advocate?’
If you deploy the Mickey Mouse, popular account of ‘counter bad speech with good speech’ in the argument, it is going to be trivially true that counterspeech is not going to be as powerful as a legislated prohibition. But Lepoutre is arming opponents of hate speech bans with sharper weapons: he’s not saying that ‘private individuals, including vulnerable targets of hate speech, are the sole agents responsible for condemning hate speech’, he’s saying that saying that ‘counterspeech should be spearheaded by the state instead’.
Even if I’m wearing the 1800s, tricorn hat of liberalism, I’m not sure that many people would be convinced of this. Who is the State here? Members of the executive who directly benefit from stirring up ‘othering’ against minorities? Or parliamentarians who can legislate norms that apply broadly, even to members of the executive in the extremes?
Or, in sharper focus during the Black Lives Matter protests, our political leaders were more concerned about vandalism of statues erected to celebrate slave owners than they were about erecting historical monuments to celebrate multiculturalism and inclusion.
Lepoutre has more artillery ready for opponents of hate speech laws: intensity. Yeah, the State can give a flimsy statement to give a gentle slap to those who say hateful things, but it can also engage in active promotion of tolerance and equality. Civil rights legislation is perhaps as intense as hate speech bans: ‘even if it does not assert that degrading or equality-denying perspectives are wrong, it nevertheless strongly implicates their wrongness.’
On which side of this discussion should you err? You are told that the empirical evidence supporting hate speech bans is a bit loosey goosey, and then you’re told that alternatives to hate speech bans can be just as effective. The latter argument seems to be an empirical claim, but there’s not empirical evidence for the same reason that the evidence for hate speech bans are suspect. I think reasonable people can disagree here. You might say, ‘Look, what I want to do is curb the extremes of the bad — have you seen alt-right social media? Therefore, I want hate speech laws as a safety net.’ Or you might say, ‘Look, what I want to do is make sure that a liberal society has as much freedom as possible. Without good evidence in support of hate speech laws, people should be free to expose themselves as racist idiots in public.’
This sort of practical reason might be theoretically sloppy — Lepoutre instead turns his mind to theoretically complex accounts of hate speech bans and their contrast with counterspeech — but it’s also the sort of reasoning that ordinary voters take with them to the ballot box when hate speech bans become politically relevant (such as the s 18C debates in Australia). Lepoutre’s argument lets us advance that public discussion: ‘Okay, people who want to get rid of hate speech laws. Convince us that we will get the sophisticated form of counterspeech in its place, and not just politically opportunistic marginalisation that we already see too frequently from our mainstream newspapers.’
Only The Sangfroid 