Many modern constitutional democracies, including Canada, have prohibited what is colloquially known as hate speech—the expression of views about minority groups for the purpose of vilifying or fostering disrespect for them. They have been able to do so because modern bills of rights, while protecting expression, tend to contain “limitation clauses.” Thus, the Supreme Court of Canada has upheld prohibitions on hate speech (or, more technically, group libel) as “reasonable limits” on free speech. Other constitutional democracies have similar laws, upheld for broadly similar reasons.
But not all. The United States Constitution has no limitation clause and, there, the suggestion that any expression could be prohibited on the basis of its content meets with skepticism if not hostility. Jeremy Waldron’s new book, The Harm in Hate Speech, represents an attempt to answer that skepticism and hostility by arguing that prohibitions of group libel are at least defensible. (He purports not to go further than that, although one could be forgiven for thinking that the modesty of the argument is belied by the vigour with which he makes it.)
Waldron’s argument, though, should resonate for Canadians as well. In 2007, the Canadian Islamic Congress filed complaints with several human rights commissions alleging that Maclean’s had published a series of Islamophobic articles. This generated heated debate over the extent to which concerns about hate speech could justify limitations on press freedom. The Supreme Court of Canada will soon release its decision in Whatcott v. Canada, a case in which a member of a religious organization distributed pamphlets disparaging the sexual practices of same-sex couples.
In thinking about how far we can or should go in restricting expressive freedom, it is worth considering what makes such restrictions justifiable in the first place. In particular, we might want to ask whether their purpose is to prevent demonstrable harm to individuals or groups, or if there is something inherently problematic about hate speech.
Two core premises lie at the heart of Waldron’s defence of group libel laws. First, to be full participants in a liberal democratic society, individuals must have some assurance that they have the basic social standing to engage in activities that will allow them to flourish and thrive. They must be confident that they can find meaningful work, get an education, seek high office or otherwise participate in the political sphere, honour their spiritual and family commitments—or do any of the other things that make a life fulfilling—and that they will not be treated as presumptively less worthy or deserving simply by virtue of their membership in a racial, religious or ethnic group.
The point here is not just that members of the community must be treated with “dignity.” They must be able to rely on such treatment on a day-to-day basis. A Muslim person walking through airport security may receive no special scrutiny. A police officer who sees a black man driving an expensive automobile at night may not, for that reason alone, check his licence plate for outstanding warrants. A hotel clerk may not refuse to check a gay or lesbian couple into a room. That one happens to have been treated with respect on one or another occasion does not change the fact that Muslims have special reasons to dread air travel, or that young black or aboriginal men must watch their step around police officers in a way that white people do not—that they must bear psychic costs not borne by others.
The second premise is that people in a liberal democratic society cannot have the assurance that they will be treated with dignity if the physical landscape suggests that their social standing is a matter for public debate. A billboard or pamphlet or full-page newspaper ad suggesting that Muslims are inherently committed to violence, or claiming that aboriginal people should be kept out of predominantly white neighbourhoods because of the crime they would bring, or arguing that gay men should be barred from public schools because they are inclined to practise pedophilia does not simply state an “idea” that can be answered with “more speech.” By affirming that they are not alone, such expressive acts embolden bigots to act on those views and to present them as one of several equally valid ideological perspectives. That problem is not resolved by engaging the racist or homophobe in debate, since doing so only presents his or her view as sufficiently reasonable to be taken seriously. Indeed, the virulent racist may want to provoke a debate, if only to create the impression that it is perfectly normal to ask whether Muslims or homosexual people are sufficiently human to deserve the complete range of human rights. To the individual Muslim or gay person, just having that question on the table undermines the assurance that he or she will be treated as a social equal.
The way a society “looks,” then, does not just reflect or express its political health—it determines it. We do not need to wait to see whether a billboard or poster libelling a vulnerable group actually succeeds (or has succeeded) in moving someone to discriminate against a member of that group before deciding whether its presence makes our society less just. We do not need to ask whether it reflects the bigoted opinions of many or only a few. A society heavily decorated with billboards and posters libelling vulnerable groups is less just, all other things being equal, merely because they are there.
In suggesting that the justness of a society rests to a degree on how it looks, Waldron draws primarily on two quite different thinkers: the political philosopher John Rawls and the feminist law professor Catharine MacKinnon. In Political Liberalism, Rawls argued that “a well-ordered society”—one governed according to the requirements of justice—“is one in which everyone accepts, and knows that everyone else accepts, the very same principles of justice.” Waldron’s point is precisely that in a society “festooned with depictions of … racial minorities characterizing them as bestial or subhuman,” there can be no assurance that “everyone else” accepts “the fundamentals of justice.” On this point, Waldron says, MacKinnon’s powerful arguments against pornography are instructive. She has long argued that pornography presents women as mere objects to be used for men’s sexual gratification, and in doing so reinforces the way gender has been socially constructed in our culture. The problem is not simply that pornography “causes” men to engage in individual acts of sexual violence. Rather, MacKinnon claims, it pollutes the air we breathe, subtly (or not-so-subtly) leading us to think about women in ways that undermine their confidence in being treated as equals. In doing so, it makes our society less just—more “disordered.” Waldron suggests that hate speech can have much the same effect.
Waldron does not suggest that all attacks on the dignity of vulnerable minorities can justifiably meet with legal sanctions. His concern is not with speech as such, with stray remarks offhandedly made and quickly forgotten. His concern is with published attacks on the equal standing of minority groups, with expressions that are more than transitory, that become a part of the landscape and that serve as standing challenges to the worthiness of some individuals’ claim to equal treatment. Again, the distinction between the published and the merely spoken follows from Waldron’s point that “hate speech” deserves to be criminalized principally because it undermines the confidence of members of vulnerable minorities that they will be treated as equals. A bigoted remark, drunkenly uttered or made in haste, that evaporates into the ether as soon as it is spoken, cannot undermine one’s assurance of equal social standing in anything like the same way as a billboard or television commercial. A billboard does not just happen. It is made to be seen in the cold light of day by the world at large. It therefore asserts the respectability and social acceptability of the message it sends in a way that the throwaway remark does not.
Nor is Waldron’s point that hate speech warrants criminalization or legal regulation just because it causes offence. It does cause offence, of course, but Waldron does not argue that group libel laws are justified merely on the basis that its victims perceive themselves to have been injured. They have, he argues, suffered actual injury, and the offence they take is a response to that. The harm of hate speech, then, cannot be wished away simply by advising its victims to think differently about it. In an important sense, it would be so much the worse if they did accept attacks on their dignity as their lot in life—after all, it is surely appropriate to be angry when someone wrongs us. But hate speech is not harmful because it causes offence. It is offensive because and to the extent it is harmful.
What matters, then, are actual attacks on social standing, and not merely perceived slights. Waldron accepts that it may sometimes be difficult to tell the difference. Are members of religious minorities, for example, truly wronged when their religious convictions are ridiculed or criticized? Are we to say that the social standing of Muslims was undermined by cartoons satirizing the Prophet Mohammed? When the American atheist Sam Harris compares a belief in God to a belief that one has an enormous diamond buried in one’s backyard, are we compelled to find that the dignity of religious believers has been assaulted? On this point, Waldron says no. We can and should, he says, draw a distinction between a person and his or her beliefs. We can attack the latter without attacking the former.
To a degree, this observation is fair enough. Insofar as attacks on religious convictions are directed at the holders themselves, they arguably presuppose that believers are able to achieve a critical distance from their beliefs, and that they are therefore not fundamentally irrational. (Harris’s point is that Christians can abandon their unwarranted belief in God just as surely as I can jettison the fantasy that I have a refrigerator-sized diamond in my backyard.) So long as religious believers are treated as equal participants in a rational debate, and not as unthinking hordes in the grip of a collective (and dangerous) delusion, we may be disinclined to say that critiques of faith-based beliefs inherently question their social standing.
But the problem, surely, is that such debates often turn in part on what it means to be rational. There will inevitably be some suspicion among people of faith that attacks on their respective traditions do not take them seriously. This exposes a tension built into Waldron’s defence of hate speech laws. He wants to say, at one and the same time, that we can assure vulnerable minorities of their social standing by limiting free speech, but that we do not need to ban merely offensive speech to achieve that goal. To make room for offensive speech, though, Waldron must implicitly put the burden on minorities to show that their offence is grounded in an actual blow to their social standing. In putting the burden on them, he makes it less likely that hate speech laws will succeed in providing the assurance he claims is their raison d’être. Pushed to its logical conclusion, in other words, Waldron’s argument either justifies limiting expressive freedom more than he claims, or it raises the question of how much assurance actually is required in a well-ordered society.
The above leads to broader questions. If we can justify limitations on free expression by appealing to the need to assure members of the public of their equal social standing, what other kinds of legal regulation can be justified on that basis? It seems unlikely that historically disadvantaged Canadians will invariably receive all the assurance they need simply because others cannot publicly talk about them as if they are less than fully human. The poverty, violent crime, health troubles and lack of opportunities with which many aboriginal Canadians live, for example, may send an implicit message that they are not worthy of the sort of consideration that others expect as a matter of course. It is worth remembering that Rawls—upon whom, we have seen, Waldron looks for inspiration—thought that the “well-ordered society” required, among other things, a redistribution of wealth. The philosopher Michael Walzer has likewise suggested that equal social standing is a precondition for someone to enjoy any number of public goods, but he by no means argues that equal treatment is exhausted by guarantees of basic dignity. What does accepting Waldron’s reasoning commit us to?
Finally, one might object to Waldron’s emphasis on harm. In R v. Butler, the Supreme Court of Canada explained the wrongfulness of violent pornography in terms of the harms it causes to women, drawing upon MacKinnon’s analysis. Since Butler, the court has persistently returned to this idea, suggesting that harm and not wrongfulness as such should be our focus. But it is far from obvious that the wrongfulness of certain activities can or should be boiled down to harmfulness. Consider the woman who believes that she ought to be treated as a sexual object by others, who consents to being used, even wants to be used, and does not perceive herself as injured in any way when she is. When she is used, is she “harmed”? If we understand harm as physical or psychological harm, it is not obvious that she is. To make sense of harm in this context, we must refer to something like moral harm—to the way in which the mental universe of victims has been shrunk, corrupted or deformed to meet the interests or whims of others.
But why not simply say that there is something inherently wrongful about degrading or dehumanizing others, about treating others as objects rather than persons? At times, Waldron seems to want to make this kind of broad moral claim. He resists the idea that the wrongfulness of group libel depends on it having a traceable effect on the psychological condition of vulnerable minorities, or any measurable impact on the way minorities are actually treated by others. His argument thus does not appeal to consequences in any straightforward sense. Why talk about “harm” at all then? Perhaps, given Waldron’s goal of convincing skeptical American readers of the wrongs of hate speech, reference to harm is tactically necessary. One suspects, though, that real progress will not have been made until it goes without saying that degrading another human being is bad, not because it is harmful, but because it is degrading.