Does Regulating Hate Speech Undermine Democratic Legitimacy? A Cautious ‘No’

Res Publica 26 (2):181-199 (2020)
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Abstract

This paper critiques the version of the argument that the regulation of hateful speech by the state undermines its democratic legitimacy made by Ronald Dworkin and James Weinstein. It argues that in some cases the harmful effects of hateful speech on the democratic process outweigh those of restriction. It does not challenge the central premise of the Legitimacy Argument, that a wide-ranging right to freedom of expression is an essential political right in a liberal democracy. Instead, it uses ideal and nonideal theory as a framework for judgements about the regulation of hate speech. The mistake underpinning the Legitimacy Argument is that it assumes that other conditions pervade that make an ideal democratic procedure possible when they do not. In reality the state can be put in a position where, whatever course of action it takes with regard to the regulation or non-regulation of hate speech, some citizens will not be able to participate fully in political deliberation. Under such conditions there remain strong pro tanto reasons not to regulate hate speech on democratic grounds, but they are not all-things-considered reasons, and there are also pro tanto reasons to regulate hate speech that might outweigh them in some cases. This leads to the cautious conclusion that while there might be a normative justification for the regulation of hate speech in individual instances, the debate is best understood as one between competing pro tanto reasons, and must be approached on a case-by-case basis.

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Citations of this work

(When) Are Authors Culpable for Causing Harm?Marcus Arvan - forthcoming - Journal of Moral Philosophy:1-32.
Freedom of speech: A relational defence.Matteo Bonotti & Jonathan Seglow - 2022 - Philosophy and Social Criticism 48 (4):515-529.
Freedom of speech: A relational defence.Matteo Bonotti & Jonathan Seglow - 2022 - Sage Publications Ltd: Philosophy and Social Criticism 48 (4):515-529.

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References found in this work

Justice for Hedgehogs.Ronald Dworkin - 2011 - Belknap Press of Harvard University Press.
Liberalism Without Perfection.Jonathan Quong - 2010 - Oxford University Press.
Political Liberalism by John Rawls. [REVIEW]Philip Pettit - 1994 - Journal of Philosophy 91 (4):215-220.
Ideal and nonideal theory.A. John Simmons - 2010 - Philosophy and Public Affairs 38 (1):5-36.
Mortal Questions.[author unknown] - 1979 - Tijdschrift Voor Filosofie 43 (3):578-578.

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