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Hate Speech, the Priority of Liberty, and the Temptations of Nonideal Theory

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Abstract

Are government restrictions on hate speech consistent with the priority of liberty? This relatively narrow policy question will serve as the starting point for a wider discussion of the use and abuse of nonideal theory in contemporary political philosophy, especially as practiced on the academic left. I begin by showing that hate speech (understood as group libel) can undermine fair equality of opportunity for historically-oppressed groups but that the priority of liberty seems to forbid its restriction. This tension between free speech and equal opportunity creates a dilemma for liberal egalitarians. Nonideal theory apparently offers an escape from this dilemma, but after examining three versions of such an escape strategy, I conclude that none is possible: liberal egalitarians are indeed forced to choose between liberty and equality in this case and others. I finish the paper by examining its implications for other policy arenas, including markets in transplantable human organs and women’s reproductive services.

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Notes

  1. All three of these possible definitions of hate speech—as group libel, fighting words, and hostile-environment harassment—reflect those used in (previously) existing laws and regulations: see Brison (1998, 314–315).

  2. See Altman (1993, 303–306) for a defense of the proposition that hate-speech restrictions are always “viewpoint-based” and therefore nonneutral.

  3. On justifying the lexical priority of liberty, see Freeman (2007, 64–79) and Taylor (2003, 246–271).

  4. See Mill (1998, 20–61), especially p. 26: “Strange it is, that men should admit the validity of the arguments for free discussion, but object to their being ‘pushed to an extreme’; not seeing that unless the reasons are good for an extreme case they are not good for any case.” Both Rawls and Scanlon carve out exceptions in their free-speech doctrines for “defamation,” but it is clear from context that they mean defamation against individuals rather than groups; because hate speech as I define it necessarily involves arguments with respect to both scientific and political propositions, its restriction could not be consistent with Rawls’s and Scanlon’s rather robust commitments to the development and exercise of intellectual autonomy—on this point, see Rawls (1993, 299–324, 336) and Scanlon (1972, 209, 211, and 213 [specifically, the “Millian Principle” and the way it would deal with a causal connection between hate speech and discrimination]). In a less scholarly vein, the American Civil Liberties Union, commonly regarded as a liberal organization, is deeply critical of hate-speech codes on college campuses.

  5. Scholars have also argued for hate-speech regulations in order to maintain the fair value of political liberties and protect intellectual autonomy itself: e.g., see Brink (2001), Lawrence (1995, 116), Mann (1995, 260–261), Michelman (1995, 273), and Sunstein (1991, 31–32).

  6. I will assume throughout this paper that such “hampering” takes place by means of illegal discriminatory behavior prompted by these bigoted doctrines. Such hampering could take place via behavior that falls short of illegality, e.g., subconscious tendencies to underestimate the talents of racial minorities—but perhaps this is only undetected (and rather difficult to detect) illegality. If we use a strict-liability standard (i.e., no mens rea requirement), subconscious discrimination may still be actionable upon proof of discriminatory outcomes by, say, statistical analysis of hiring decisions.

  7. In the philosophical and legal literatures, see Barnes (1995, 159), Brison (1998, 316), Delgado and Stefancic (1999, 6–8), and Meyers (1995, 203–205). The Supreme Court case Beauharnais v. Illinois (343 U.S. 250 [1952]) upheld an Illinois group-defamation statute that criminalized the exhibition or publication of pictures or writings that portrayed “depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion.” Writing for the Court, Felix Frankfurter argued that “a man’s job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits.” Beauharnais has never been overruled and has been cited in later cases (e.g., New York v. Ferber, 458 U.S. 747, 763 [1982]; R.A.V. v. City of St. Paul, 505 U.S. 377, 383 [1992]), though the Supreme Court’s decision in New York Times Co. v. Sullivan (376 U.S. 254 [1964]) may place its authority in doubt.

  8. Note that laws with a similar aim but different structure might pass muster. Some scholars have suggested setting up public compensation funds for those injured by hate speech, for example, which would in itself be consistent with the priority of liberty: see Meyers (1995) and Schauer (1992) for detailed proposals.

  9. See, for example, Altman (1993, 306) and Peard (2004, 142–144, 152). Peard’s argument is especially striking: he develops criteria for assessing not only the harm and offense caused to listeners by hate speech but also the reasonableness of the speaker’s conduct, which are derived from the “mediating maxims” used in the application of Joel Feinberg’s harm and offense principles; these criteria bear a strong resemblance to Jeremy Bentham’s criteria for measuring pleasure and pain. See Feinberg (1985, Volume 1, Chapter 5, and Volume 2, Chapter 8) and Bentham (1988, Chapter 4). Finally, J.S. Mill distinguishes himself from classical utilitarians like Henry Sidgwick on this issue: Mill boldly states “there is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it” (Mill 1998, 93), while Sidgwick regards such assertions as evidence of Mill’s heterodoxy—see Sidgwick (1981, 477–479). This suggests that Mill does not think his harm principle will justify limits on speech, at least where bodily security is not at stake; in those cases where it would be (e.g., use of “fighting words,” shouting “fire” in a crowded theater, and inciting a riot), the harm principle would call for limits on speech—see, for example, Mill (1998, 62 [on incitement to riot]).

  10. Cf. Smart and Williams (1973, 37): “There are in any case plenty of good utilitarian reasons for adopting the principle of fairness as an important, but not inviolable, rule of thumb.” (emphasis added)

  11. Rawls also emphasizes that such relaxations of the priority of liberty must be “progressive,” in the sense that they help the society in question to attain ideal conditions and therefore the priority of liberty: “the equal liberties can be denied only when it is necessary to change the quality of civilization so that in due course everyone can enjoy these freedoms” (Rawls 1999d, 475).

  12. Other philosophers have relatedly argued that, contra Rawls (1999d, 8, 216), there is no straightforward way to derive nonideal theory from ideal theory: see, for example, Phillips (1985).

  13. Some liberal egalitarians might object to this characterization of the choice. Ronald Dworkin, for example, would insist that no such tradeoff exists: “the rights to liberty we regard as fundamental are a part or aspect of distributional equality, and so are automatically protected whenever equality is achieved. The priority of liberty is secured, not at the expense of equality, but in its name” (Dworkin 2002, 133). As I have shown, however, a tradeoff does exist between the (equal) basic liberty of free speech and equal educational and employment opportunities. Most people would describe this as a tradeoff between a type of liberty and a kind of equality, but nothing would be lost—except rhetorical punch—if we redescribed it as a tradeoff between species of social primary goods within a system of distributional equality. I shall retain the current characterization, however, because it fits common usage and is, well, rhetorically punchier.

  14. For example, see Meyers (1995, 222): “Indeed, if it weren’t for the climate of racism, sexism, homophobia, and ethnocentrism in the United States, discriminatory verbal or pictorial abuse would not be seriously harmful.”

  15. On the temporary, historically-contingent nature of hate-speech restrictions, see Delgado and Stefancic (1999, 129–131) and Mann (1995, 255–256). On the possibility of a world free of structural oppression, see Ross (1995, 156: “only when racism is purged from the mainstream and the margins of American society will true democracy be created”), Barry (1995, 322: “feminist consciousness…begins and is sustained in the conviction that a world without sexual exploitation is possible”), and Mills (2005, 181–182).

  16. These categories are from the Global Gender Gap Report 2007 of the World Economic Forum (Hausmann et al. 2007, 4). The Report ranks Sweden, Norway, Finland, and Iceland as the four most gender-egalitarian nations in the world (in descending order); Denmark comes in eighth (p. 7).

  17. See Knudsen and Wærness (2008, 103: Denmark: 66%; Finland: 67%; Norway: 73%; Sweden: 66%).

  18. He relatedly notes that the threshold for a people to be “well-ordered” is quite modest—e.g., “great wealth is not necessary to establish just (or decent) institutions”; see Rawls (1999a, 107 and §15 more generally).

  19. Needless to say, there is much counterevidence to this claim, the most obvious examples being his implicit concern for racial justice in his discussions of civil disobedience (Rawls 1999d, §§55, 57, 59) and explicit worries about the corrupting influence of money on politics (Rawls 1993, 359–363).

  20. For an overview of these interventions, see Kjeldstad (2001).

  21. For an influential critique of this kind, see Marx (1978b). Rawls (1993, 324–331) implicitly replies to Marx’s critique.

  22. One might argue that the burden of proof here has been placed on the wrong side of the debate: surely hate-speech victims and their scholarly defenders should not be obliged to draw a roadmap to an “ideal” world; rather, opponents of hate-speech laws should have to explain how any society with residual structural oppression could still secure the effective exercise of everyone’s basic liberties. Recall, though, that (1) this debate is supposedly taking place within the bounds of liberal theory and (2) for the purposes of this paper we are assuming that liberals in general (like Mill, Rawls, and Scanlon in particular) defend a robust conception of free speech—one that protects hate speech as I have defined it—and give it a high priority in their theories, owing to its essential role in the development and exercise of intellectual autonomy. Given these facts, the burden of proof properly lies with those liberals who would restrict free speech, even for admittedly noble ends.

  23. In Plato’s Republic, Socrates speaks of the kallipolis as a “pattern” for the perfectly just city but not as proof “that it’s possible for these things to come into being”; rather, it is to serve as a model, with the best realizable city “most closely approximating it” (Plato 1991, 152–153 [472b–473b]). Charles Mills mentions Plato in a similar context (Mills 2005, 171).

  24. Cf. the definition of teleology in Rawls (1999d, 21–22). Also see his discussion of “the priority problem” in §8: once we rule out lexical priority relations as a means to constrain moral judgments, we are left only with some kind of teleology (e.g., utilitarianism) to do the job, as intuitionism leaves such judgments effectively unconstrained.

  25. Rawls later rejects his own line of argument here (Rawls 1993, 371n84), but only in the context of ideal theory. It remains entirely appropriate within nonideal theory, however, where the Kantian “hierarchy of interests” that supports the priority of liberty does not yet apply and our interests in liberty, wealth, etc., remain fungible.

  26. Among those scholars who have argued against such markets are Radin (1996) and Satz (1992).

  27. For example, see Christman (1991, 39), Dworkin (1983, 39), Grünebaum (1987, 171), and Kernohan (1990, 22).

  28. Also as in the hate-speech case, these market liberties might need to be regulated for reasons internal to EL. For example, they could not be extended so as to allow voluntary, contractual slavery, as this would critically undermine the very thing that the basic liberties are supposed to protect, viz. our rational agency.

  29. Satz even concedes that prostitution “becomes ‘degrading’ only in a particular political and social context” (Satz 1992, 109n5); also see Satz (1995).

  30. To be fair, it is unclear that Radin has any desire to avoid such charges: she is sharply critical of liberal neutrality and favors state efforts to promote particular conceptions of “the good life” (Radin 1996, 73, 106, 209–211). Satz’s case is more ambiguous: see Satz (1992, 109, 115–116, 123, 130).

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Acknowledgments

I wish to thank the editors of Ethical Theory and Moral Practice, two anonymous referees, Chad Van Schoelandt, and especially David Reidy (a conversation with whom prompted this piece) for their comments, criticisms, and candor. I am also grateful to Lord and Lady Sterling of Battersea for providing office space and residential support while I worked on this paper.

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    Robert S. Taylor

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Taylor, R.S. Hate Speech, the Priority of Liberty, and the Temptations of Nonideal Theory. Ethic Theory Moral Prac 15, 353–368 (2012). https://doi.org/10.1007/s10677-011-9287-6

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