Katharine Gelber
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199236282
- eISBN:
- 9780191741357
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199236282.003.0003
- Subject:
- Philosophy, Feminist Philosophy, Philosophy of Language
A central idea within free speech arguments is that the most appropriate response to speech with which one disagrees, or which one finds intolerable, is to speak back. Some scholars have argued there ...
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A central idea within free speech arguments is that the most appropriate response to speech with which one disagrees, or which one finds intolerable, is to speak back. Some scholars have argued there may even be a basis for governmental or state support to assist some in speaking. This chapter develops this argument in relation to hate speech, arguing that because and to the extent to which hate speech may prevent its targets from speaking back, institutional, educational, and material support ought to be provided to enable the targets of hate speech to ‘speak back’. This would enable them both to contradict the messages contained within the hate speech and to counteract the effects of that speech on their ability to respond. The policy thus aims to ameliorate the potential effects of hate speech, and also to preserve and enhance speech opportunities. This chapter discusses the likely fortunes of a ‘speaking back’ policy in the United States and Australia; two jurisdictions with widely variant institutional mechanisms for the protection of free speech. It concludes that the speaking back policy is conceptually and practically useful in combating hate speech, and also potentially robust in differing constitutional environments.Less
A central idea within free speech arguments is that the most appropriate response to speech with which one disagrees, or which one finds intolerable, is to speak back. Some scholars have argued there may even be a basis for governmental or state support to assist some in speaking. This chapter develops this argument in relation to hate speech, arguing that because and to the extent to which hate speech may prevent its targets from speaking back, institutional, educational, and material support ought to be provided to enable the targets of hate speech to ‘speak back’. This would enable them both to contradict the messages contained within the hate speech and to counteract the effects of that speech on their ability to respond. The policy thus aims to ameliorate the potential effects of hate speech, and also to preserve and enhance speech opportunities. This chapter discusses the likely fortunes of a ‘speaking back’ policy in the United States and Australia; two jurisdictions with widely variant institutional mechanisms for the protection of free speech. It concludes that the speaking back policy is conceptually and practically useful in combating hate speech, and also potentially robust in differing constitutional environments.
Caroline West
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199236282
- eISBN:
- 9780191741357
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199236282.003.0009
- Subject:
- Philosophy, Feminist Philosophy, Philosophy of Language
This chapter examines the prevailing assumption that the value of freedom of speech itself is necessarily only or best served by permitting racist hate speech. It is argued that anything worthy of ...
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This chapter examines the prevailing assumption that the value of freedom of speech itself is necessarily only or best served by permitting racist hate speech. It is argued that anything worthy of the label ‘freedom of speech’ must satisfy three relatively minimal conditions, namely, minimal distribution, minimal comprehension, and minimal consideration. If racist hate speech silences other speech by interfering with its production/distribution, comprehension, or consideration, then racist hate speech may function to undermine, rather than exemplify or enhance, freedom of speech. If so, there might be a free speech argument against permitting racist hate speech. The chapter provides a novel framework within which such claims can be evaluated.Less
This chapter examines the prevailing assumption that the value of freedom of speech itself is necessarily only or best served by permitting racist hate speech. It is argued that anything worthy of the label ‘freedom of speech’ must satisfy three relatively minimal conditions, namely, minimal distribution, minimal comprehension, and minimal consideration. If racist hate speech silences other speech by interfering with its production/distribution, comprehension, or consideration, then racist hate speech may function to undermine, rather than exemplify or enhance, freedom of speech. If so, there might be a free speech argument against permitting racist hate speech. The chapter provides a novel framework within which such claims can be evaluated.
Ishani Maitra and Mary Kate McGowan
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199236282
- eISBN:
- 9780191741357
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199236282.003.0001
- Subject:
- Philosophy, Feminist Philosophy, Philosophy of Language
This chapter explores the nature and value of a principle of free speech. It is often argued that certain kinds of speech are harmful. But such claims give rise to several questions. First, when a ...
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This chapter explores the nature and value of a principle of free speech. It is often argued that certain kinds of speech are harmful. But such claims give rise to several questions. First, when a kind of speech is harmful, what are the harms in question? Second, how does the speech bring about these harms? Third, and perhaps most crucially, what ought to be done about these harms, in the context of a continuing commitment to free speech? The chapter surveys possible answers to each of these questions, and introduces several distinctions that are key to understanding these answers. Finally, questions about the scope of a free speech principle are motivated. Along the way, the chapters in this collection are located with respect to the debates surrounding speech and harm, and a guide to using this collection as the basis for a course is offered.Less
This chapter explores the nature and value of a principle of free speech. It is often argued that certain kinds of speech are harmful. But such claims give rise to several questions. First, when a kind of speech is harmful, what are the harms in question? Second, how does the speech bring about these harms? Third, and perhaps most crucially, what ought to be done about these harms, in the context of a continuing commitment to free speech? The chapter surveys possible answers to each of these questions, and introduces several distinctions that are key to understanding these answers. Finally, questions about the scope of a free speech principle are motivated. Along the way, the chapters in this collection are located with respect to the debates surrounding speech and harm, and a guide to using this collection as the basis for a course is offered.
Mary Kate McGowan
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199236282
- eISBN:
- 9780191741357
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199236282.003.0006
- Subject:
- Philosophy, Feminist Philosophy, Philosophy of Language
In this chapter, it is argued that some instances of racist hate speech are speech acts that constitute illegal acts of racial discrimination. By identifying a previously overlooked mechanism by ...
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In this chapter, it is argued that some instances of racist hate speech are speech acts that constitute illegal acts of racial discrimination. By identifying a previously overlooked mechanism by which utterances enact norms (the covert exercitive), one comes to see that some racist hate speech enacts discriminatory norms in public places. Such speech thus acts very similarly to ‘Whites Only’ signs. This result has two important consequences. First, it affords at least a prima facie case for the regulation of this subset of racist hate speech. Second, it disproves a certain naive conception of so-called political speech. Although both racist hate speech and ‘Whites Only’ signs express political messages, they do not and should not count as political speech for the purposes of a free speech principle. Thus, expressing a political opinion is insufficient for being political speech (in the relevant sense).Less
In this chapter, it is argued that some instances of racist hate speech are speech acts that constitute illegal acts of racial discrimination. By identifying a previously overlooked mechanism by which utterances enact norms (the covert exercitive), one comes to see that some racist hate speech enacts discriminatory norms in public places. Such speech thus acts very similarly to ‘Whites Only’ signs. This result has two important consequences. First, it affords at least a prima facie case for the regulation of this subset of racist hate speech. Second, it disproves a certain naive conception of so-called political speech. Although both racist hate speech and ‘Whites Only’ signs express political messages, they do not and should not count as political speech for the purposes of a free speech principle. Thus, expressing a political opinion is insufficient for being political speech (in the relevant sense).
Langton Rae
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199236282
- eISBN:
- 9780191741357
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199236282.003.0004
- Subject:
- Philosophy, Feminist Philosophy, Philosophy of Language
Pragmatics can shed light on racial hate speech and pornography, but only if we bring it down to earth. Five models for hate speech and pornography are distinguished: a conditioning model, an ...
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Pragmatics can shed light on racial hate speech and pornography, but only if we bring it down to earth. Five models for hate speech and pornography are distinguished: a conditioning model, an imitation model, an argument model, a speech act model, and its descendant, the pragmatic model. A speech act model distinguishes illocutionary and perlocutionary dimensions of speech: e.g. hate speech can incite, and cause, hatred and violence. The pragmatic model tries to capture these dimensions via an account of accommodation. It can indeed illuminate racial hate speech and pornography, but only with amendments that go ‘beyond belief’. Lewis and Stalnaker showed how ‘score’ or ‘common ground’ of conversation accommodates to moves speakers make, and the hearer’s belief adjusts accordingly. This picture needs extending to make sense of hate speech and pornography: we need to allow for the accommodation of other attitudes, such as desire and hate.Less
Pragmatics can shed light on racial hate speech and pornography, but only if we bring it down to earth. Five models for hate speech and pornography are distinguished: a conditioning model, an imitation model, an argument model, a speech act model, and its descendant, the pragmatic model. A speech act model distinguishes illocutionary and perlocutionary dimensions of speech: e.g. hate speech can incite, and cause, hatred and violence. The pragmatic model tries to capture these dimensions via an account of accommodation. It can indeed illuminate racial hate speech and pornography, but only with amendments that go ‘beyond belief’. Lewis and Stalnaker showed how ‘score’ or ‘common ground’ of conversation accommodates to moves speakers make, and the hearer’s belief adjusts accordingly. This picture needs extending to make sense of hate speech and pornography: we need to allow for the accommodation of other attitudes, such as desire and hate.
Steven J. Heyman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199548781
- eISBN:
- 9780191720673
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548781.003.0010
- Subject:
- Law, Human Rights and Immigration
This chapter contends that public hate speech, such as the Nazi march in Skokie, should not be protected under the First Amendment to the U.S. Constitution. Part I of the chapter outlines a general ...
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This chapter contends that public hate speech, such as the Nazi march in Skokie, should not be protected under the First Amendment to the U.S. Constitution. Part I of the chapter outlines a general theory of free expression which holds that speech may be regulated to protect the fundamental rights of others — rights that (like speech itself) are rooted in respect for human dignity and autonomy. Part II applies this theory to political hate speech. This speech invades its targets' rights to personal security, personality, citizenship, and equality. Moreover, the speech is not entitled to protection because of its political character, for political speech is best understood as discourse among individuals who recognize one another as free and equal persons and citizens — a view that derives support from Locke, Hegel, Meiklejohn, and Habermas. Hate speech denies recognition to others and thereby violates the basic rules of public discourse and debate.Less
This chapter contends that public hate speech, such as the Nazi march in Skokie, should not be protected under the First Amendment to the U.S. Constitution. Part I of the chapter outlines a general theory of free expression which holds that speech may be regulated to protect the fundamental rights of others — rights that (like speech itself) are rooted in respect for human dignity and autonomy. Part II applies this theory to political hate speech. This speech invades its targets' rights to personal security, personality, citizenship, and equality. Moreover, the speech is not entitled to protection because of its political character, for political speech is best understood as discourse among individuals who recognize one another as free and equal persons and citizens — a view that derives support from Locke, Hegel, Meiklejohn, and Habermas. Hate speech denies recognition to others and thereby violates the basic rules of public discourse and debate.
C. Edwin Baker
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199548781
- eISBN:
- 9780191720673
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548781.003.0009
- Subject:
- Law, Human Rights and Immigration
This chapter describes the rationale that a full protection theory of free speech — a theory based on respect for individual autonomy — would give for protecting hate speech. It then notes that such ...
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This chapter describes the rationale that a full protection theory of free speech — a theory based on respect for individual autonomy — would give for protecting hate speech. It then notes that such a rationale will be unpersuasive to many if the harms associated with a failure to outlaw hate speech are as great as often suggested — most dramatically, if the failure to prohibit makes a substantial contribution to the occurrence of serious racial/ethnic violence or genocide. The chapter then attempts to outline what empirical evidence would be needed to support this conclusion and gives reasons to doubt that this evidence has been or will be forthcoming. Still, given the horrendous nature of the harm, caution suggests not taking the risk. That is, the risk may justify prohibiting hate speech given its possible role in causing these consequences. In response to this last point, however, the chapter gives reasons to believe that the attempt to prohibit hate speech is more likely to exacerbate the risk of unacceptable outcomes than to generate the benign opposite. Thus, the argument ends in accepting the theoretical reasons for giving First Amendment protection to hate speech.Less
This chapter describes the rationale that a full protection theory of free speech — a theory based on respect for individual autonomy — would give for protecting hate speech. It then notes that such a rationale will be unpersuasive to many if the harms associated with a failure to outlaw hate speech are as great as often suggested — most dramatically, if the failure to prohibit makes a substantial contribution to the occurrence of serious racial/ethnic violence or genocide. The chapter then attempts to outline what empirical evidence would be needed to support this conclusion and gives reasons to doubt that this evidence has been or will be forthcoming. Still, given the horrendous nature of the harm, caution suggests not taking the risk. That is, the risk may justify prohibiting hate speech given its possible role in causing these consequences. In response to this last point, however, the chapter gives reasons to believe that the attempt to prohibit hate speech is more likely to exacerbate the risk of unacceptable outcomes than to generate the benign opposite. Thus, the argument ends in accepting the theoretical reasons for giving First Amendment protection to hate speech.
Jerome Neu
- Published in print:
- 2007
- Published Online:
- January 2008
- ISBN:
- 9780195314311
- eISBN:
- 9780199871780
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195314311.003.0006
- Subject:
- Philosophy, Philosophy of Language
Because speech can also be conduct, words deeds, the First Amendment cannot provide blanket protection for all offensive speech. This is especially true for what J.L. Austin calls “performative ...
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Because speech can also be conduct, words deeds, the First Amendment cannot provide blanket protection for all offensive speech. This is especially true for what J.L. Austin calls “performative utterances.” We must try to be clear on the principles at stake‐‐as claims to freedom of speech meet claims of self‐defense and provocation‐‐as we seek to draw legal boundaries to control fighting words, obscenity, and hate speech.Less
Because speech can also be conduct, words deeds, the First Amendment cannot provide blanket protection for all offensive speech. This is especially true for what J.L. Austin calls “performative utterances.” We must try to be clear on the principles at stake‐‐as claims to freedom of speech meet claims of self‐defense and provocation‐‐as we seek to draw legal boundaries to control fighting words, obscenity, and hate speech.
L. W. Sumner
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199548781
- eISBN:
- 9780191720673
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548781.003.0012
- Subject:
- Law, Human Rights and Immigration
Every liberal democracy approaches the regulation of hate speech in its own particular way. This chapter draws on the experience and the particularities of the hate speech laws that have been in ...
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Every liberal democracy approaches the regulation of hate speech in its own particular way. This chapter draws on the experience and the particularities of the hate speech laws that have been in place in Canada since 1970. But it also brings to the issue a principled framework for locating the boundaries of free speech, one which derives from John Stuart Mill and has subsequently been operationalized by the Canadian Supreme Court. The discussion concludes that while the best-known piece of Canadian hate speech legislation cannot be justified under this framework, a lesser-known offence has a better chance of success. In the distinction between these offences there are important lessons to be learned for the boundaries of free speech.Less
Every liberal democracy approaches the regulation of hate speech in its own particular way. This chapter draws on the experience and the particularities of the hate speech laws that have been in place in Canada since 1970. But it also brings to the issue a principled framework for locating the boundaries of free speech, one which derives from John Stuart Mill and has subsequently been operationalized by the Canadian Supreme Court. The discussion concludes that while the best-known piece of Canadian hate speech legislation cannot be justified under this framework, a lesser-known offence has a better chance of success. In the distinction between these offences there are important lessons to be learned for the boundaries of free speech.
Paul Marshall and Nina Shea
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199812264
- eISBN:
- 9780199919383
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199812264.003.0012
- Subject:
- Religion, Islam
Many Western countries are creating and amending laws to limit what may be said about religious beliefs. These range from blasphemy bans, originally intended to protect Christianity, to recent hate ...
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Many Western countries are creating and amending laws to limit what may be said about religious beliefs. These range from blasphemy bans, originally intended to protect Christianity, to recent hate speech prohibitions, devised primarily as anti-racism measures, but now increasingly applied to religion. While largely anachronistic, blasphemy laws are used to prosecute offenses against Islam; in Finland in 2009, a city politician was convicted of “violating the sanctity of religion” for deriding the Muslim prophet and Islamic child marriage. Most European Union countries, as well as the EU itself, affirm that restrictions on speech should protect individuals rather than religions, but the conflation of insults to the religion with insults to the individual by Muslim complainants is widespread. Those prosecuted include actress Brigitte Bardot in France, writer Mark Steyn in Canada, two Christian pastors in Australia, and others, and involved complaints arising from speech critical of Islam and not personal insults. Hate speech laws have a more widespread chilling effect, and a growing number of publishers, journalists, filmmakers, and artists are acknowledging that they are shying away from Islamic subjects in their work. Religious hate speech laws, which are just as arbitrary and vague as Muslim blasphemy regimes.Less
Many Western countries are creating and amending laws to limit what may be said about religious beliefs. These range from blasphemy bans, originally intended to protect Christianity, to recent hate speech prohibitions, devised primarily as anti-racism measures, but now increasingly applied to religion. While largely anachronistic, blasphemy laws are used to prosecute offenses against Islam; in Finland in 2009, a city politician was convicted of “violating the sanctity of religion” for deriding the Muslim prophet and Islamic child marriage. Most European Union countries, as well as the EU itself, affirm that restrictions on speech should protect individuals rather than religions, but the conflation of insults to the religion with insults to the individual by Muslim complainants is widespread. Those prosecuted include actress Brigitte Bardot in France, writer Mark Steyn in Canada, two Christian pastors in Australia, and others, and involved complaints arising from speech critical of Islam and not personal insults. Hate speech laws have a more widespread chilling effect, and a growing number of publishers, journalists, filmmakers, and artists are acknowledging that they are shying away from Islamic subjects in their work. Religious hate speech laws, which are just as arbitrary and vague as Muslim blasphemy regimes.
Ishani Maitra
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199236282
- eISBN:
- 9780191741357
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199236282.003.0005
- Subject:
- Philosophy, Feminist Philosophy, Philosophy of Language
This chapter considers whether ordinary instances of racist hate speech can be authoritative, thereby constituting the subordination of people of color. It is often said that ordinary speakers cannot ...
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This chapter considers whether ordinary instances of racist hate speech can be authoritative, thereby constituting the subordination of people of color. It is often said that ordinary speakers cannot subordinate because they lack authority. Here it is argued that there are more ways in which speakers can come to have authority than have been generally recognized. In part, this is because authority has been taken to be too closely tied to social position. This chapter presents a series of examples which show that speaker authority needn’t derive from social position at all. Moreover, these examples also show that a speaker can come to have authority even when they lack it prior to speaking. After distinguishing these different ways in which speakers can come to have authority, it is argued that there is ample reason to think that even producers of ordinary instances of racist hate speech can sometimes have authority in these ways.Less
This chapter considers whether ordinary instances of racist hate speech can be authoritative, thereby constituting the subordination of people of color. It is often said that ordinary speakers cannot subordinate because they lack authority. Here it is argued that there are more ways in which speakers can come to have authority than have been generally recognized. In part, this is because authority has been taken to be too closely tied to social position. This chapter presents a series of examples which show that speaker authority needn’t derive from social position at all. Moreover, these examples also show that a speaker can come to have authority even when they lack it prior to speaking. After distinguishing these different ways in which speakers can come to have authority, it is argued that there is ample reason to think that even producers of ordinary instances of racist hate speech can sometimes have authority in these ways.
Eric Heinze
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199548781
- eISBN:
- 9780191720673
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548781.003.0015
- Subject:
- Law, Human Rights and Immigration
Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex, or religion, etc. They often omit express reference to ...
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Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex, or religion, etc. They often omit express reference to sexual minorities. Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association. Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. This chapter challenges that approach. Hate speech bans suffer from inherent flaws. They either promote discrimination by limiting the number of protected categories, or, by including all meritorious categories, would dramatically limit free speech. Sexual minorities within longstanding, stable, and prosperous democracies should generally enjoy all human rights, but should not necessarily seek the protections of hate speech bans.Less
Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex, or religion, etc. They often omit express reference to sexual minorities. Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association. Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. This chapter challenges that approach. Hate speech bans suffer from inherent flaws. They either promote discrimination by limiting the number of protected categories, or, by including all meritorious categories, would dramatically limit free speech. Sexual minorities within longstanding, stable, and prosperous democracies should generally enjoy all human rights, but should not necessarily seek the protections of hate speech bans.
ERIC BARENDT
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199225811
- eISBN:
- 9780191714139
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199225811.003.0005
- Subject:
- Law, Human Rights and Immigration
One important question is whether it is right to treat political speech as more worthy of protection than other types of speech. To some extent this entails arguments similar to the arguments related ...
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One important question is whether it is right to treat political speech as more worthy of protection than other types of speech. To some extent this entails arguments similar to the arguments related to according freedom of expression special protection against government interference. Some of those arguments do suggest that political speech should occupy what is referred to in American constitutional jurisprudence as a ‘preferred position’; courts should be less prepared to countenance abridgements of political and social discussion than they should restrictions on literature, pornography, or commercial advertising. The implications of this differential treatment can be explored in four areas of political speech that are discussed in this chapter: sedition and related offences, racist hate speech, blasphemy and incitement to religious hatred, and disclosure of official secrets.Less
One important question is whether it is right to treat political speech as more worthy of protection than other types of speech. To some extent this entails arguments similar to the arguments related to according freedom of expression special protection against government interference. Some of those arguments do suggest that political speech should occupy what is referred to in American constitutional jurisprudence as a ‘preferred position’; courts should be less prepared to countenance abridgements of political and social discussion than they should restrictions on literature, pornography, or commercial advertising. The implications of this differential treatment can be explored in four areas of political speech that are discussed in this chapter: sedition and related offences, racist hate speech, blasphemy and incitement to religious hatred, and disclosure of official secrets.
EYAL ZAMIR and BARAK MEDINA
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195372168
- eISBN:
- 9780199776078
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372168.003.07
- Subject:
- Law, Philosophy of Law
This chapter discusses freedom of speech. It briefly describes current constitutional protection of this freedom and surveys its standard economic analysis. It then introduces the deontological ...
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This chapter discusses freedom of speech. It briefly describes current constitutional protection of this freedom and surveys its standard economic analysis. It then introduces the deontological constraint against curtailing free speech and analyzes in some detail the normative judgments involved in conducting a constrained cost-benefit analysis of speech regulation. As to calculating the benefit of speech regulation — which is tantamount to calculating the speech's expected harm — it examines the desirability of excluding, or radically discounting, various types of harms, such as chronologically-remote and low-probability harms, small harms, harms brought about through rational persuasion, and mere offensiveness. Various ways of formalizing such excluders and combining them are examined. The chapter then analyzes the threshold that has to be met to justify speech regulation, including its shape, the setting of different thresholds for content-based and for content-neutral regulation, and different thresholds for different categories of speech.Less
This chapter discusses freedom of speech. It briefly describes current constitutional protection of this freedom and surveys its standard economic analysis. It then introduces the deontological constraint against curtailing free speech and analyzes in some detail the normative judgments involved in conducting a constrained cost-benefit analysis of speech regulation. As to calculating the benefit of speech regulation — which is tantamount to calculating the speech's expected harm — it examines the desirability of excluding, or radically discounting, various types of harms, such as chronologically-remote and low-probability harms, small harms, harms brought about through rational persuasion, and mere offensiveness. Various ways of formalizing such excluders and combining them are examined. The chapter then analyzes the threshold that has to be met to justify speech regulation, including its shape, the setting of different thresholds for content-based and for content-neutral regulation, and different thresholds for different categories of speech.
Ishani Maitra and Mary Kate McGowan (eds)
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199236282
- eISBN:
- 9780191741357
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199236282.001.0001
- Subject:
- Philosophy, Feminist Philosophy, Philosophy of Language
Most liberal societies are deeply committed to a principle of free speech. At the same time, however, there is evidence that some kinds of speech are harmful in ways that are detrimental to important ...
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Most liberal societies are deeply committed to a principle of free speech. At the same time, however, there is evidence that some kinds of speech are harmful in ways that are detrimental to important liberal values, such as social equality. Might a genuine commitment to free speech require that we legally permit speech even when it is harmful, and even when doing so is in conflict with our commitment to values like equality? Even if such speech is to be legally permitted, does our commitment to free speech allow us to provide material and institutional support to those who would contest such harmful speech? And finally, and perhaps most importantly, which kinds of speech are harmful in ways that merit response, either in the form of legal regulation or in some other form? This book explores these and related questions. Drawing on expertise in philosophy, sociology, political science, feminist theory, and legal theory, the chapters in this book investigate these themes and questions. By exploring various categories of speech (including pornography, hate speech, Holocaust denial literature, ‘Whites Only’ signs), and attending to the precise functioning of speech, the chapters shed light on these questions by clarifying the relationship between speech and harm. Understanding how speech functions can help us work out which kinds of speech are harmful, what those harms are, and how the speech in question brings them about. All of these issues are crucially important when it comes to deciding what ought to be done about allegedly harmful speech.Less
Most liberal societies are deeply committed to a principle of free speech. At the same time, however, there is evidence that some kinds of speech are harmful in ways that are detrimental to important liberal values, such as social equality. Might a genuine commitment to free speech require that we legally permit speech even when it is harmful, and even when doing so is in conflict with our commitment to values like equality? Even if such speech is to be legally permitted, does our commitment to free speech allow us to provide material and institutional support to those who would contest such harmful speech? And finally, and perhaps most importantly, which kinds of speech are harmful in ways that merit response, either in the form of legal regulation or in some other form? This book explores these and related questions. Drawing on expertise in philosophy, sociology, political science, feminist theory, and legal theory, the chapters in this book investigate these themes and questions. By exploring various categories of speech (including pornography, hate speech, Holocaust denial literature, ‘Whites Only’ signs), and attending to the precise functioning of speech, the chapters shed light on these questions by clarifying the relationship between speech and harm. Understanding how speech functions can help us work out which kinds of speech are harmful, what those harms are, and how the speech in question brings them about. All of these issues are crucially important when it comes to deciding what ought to be done about allegedly harmful speech.
Peter Molnar
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199548781
- eISBN:
- 9780191720673
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548781.003.0014
- Subject:
- Law, Human Rights and Immigration
This chapter highlights the relevant jurisprudence of Hungary, a post-Holocaust, post-communist, Central European democracy, and shows that the search for effective law and policy on ‘hate speech’ ...
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This chapter highlights the relevant jurisprudence of Hungary, a post-Holocaust, post-communist, Central European democracy, and shows that the search for effective law and policy on ‘hate speech’ benefits from a fresh, open look at the best practices wherever they have developed. It provides a short description of the social context in Hungary, the most important elements of which are: the Hungarian freedom struggles in the 19th and 20th centuries which always passionately advocated freedom of speech and freedom of the press; decades of totalitarian censorship; the largest Jewish community remaining in Central Europe after the Holocaust, mostly concentrated in Budapest; antisemitism; and the hatred against Roma Hungarians. It analyses how the Hungarian Constitutional Court and the other courts in Hungary have adopted the ‘clear and present danger test’ of the Supreme Court of the United States. Finally, in light of related Hungarian jurisprudence, the chapter explores what might be the most helpful policy on this issue, the most difficult of all questions of free speech theory.Less
This chapter highlights the relevant jurisprudence of Hungary, a post-Holocaust, post-communist, Central European democracy, and shows that the search for effective law and policy on ‘hate speech’ benefits from a fresh, open look at the best practices wherever they have developed. It provides a short description of the social context in Hungary, the most important elements of which are: the Hungarian freedom struggles in the 19th and 20th centuries which always passionately advocated freedom of speech and freedom of the press; decades of totalitarian censorship; the largest Jewish community remaining in Central Europe after the Holocaust, mostly concentrated in Budapest; antisemitism; and the hatred against Roma Hungarians. It analyses how the Hungarian Constitutional Court and the other courts in Hungary have adopted the ‘clear and present danger test’ of the Supreme Court of the United States. Finally, in light of related Hungarian jurisprudence, the chapter explores what might be the most helpful policy on this issue, the most difficult of all questions of free speech theory.
Ivan Hare and James Weinstein (eds)
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199548781
- eISBN:
- 9780191720673
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548781.001.0001
- Subject:
- Law, Human Rights and Immigration
A commitment to free speech is a fundamental precept of all liberal democracies. However, democracies differ significantly when addressing the permissibility of laws regulating certain kinds of ...
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A commitment to free speech is a fundamental precept of all liberal democracies. However, democracies differ significantly when addressing the permissibility of laws regulating certain kinds of speech, especially extreme speech. In the United States, for instance, the commitment to free speech has been held by the Supreme Court to protect the public expression of even the most noxious racist ideology. In contrast, in almost every other democracy governments enjoy considerable leeway to restrict racist and other types of extreme expression. What accounts for the marked differences in attitude towards the constitutionality of hate speech regulation? Does hate speech regulation violate the core free speech principle constitutive of democracy? Or do values such as the commitment to equality or individual dignity legitimately override the right to free speech in some circumstances? In attempting to answer these and other questions, this book focuses on highly topical issues such as homophobic speech, Holocaust denial, incitement to terrorism, veiling controversies, and the Danish cartoons depicting the Prophet Muhammad. It includes interdisciplinary perspectives from law, philosophy, history, psychology, and literature, and provides comparative perspectives from experts in various countries including Australia, Canada, France, Germany, Hungary, and Israel, as well as from the United States and the United Kingdom.Less
A commitment to free speech is a fundamental precept of all liberal democracies. However, democracies differ significantly when addressing the permissibility of laws regulating certain kinds of speech, especially extreme speech. In the United States, for instance, the commitment to free speech has been held by the Supreme Court to protect the public expression of even the most noxious racist ideology. In contrast, in almost every other democracy governments enjoy considerable leeway to restrict racist and other types of extreme expression. What accounts for the marked differences in attitude towards the constitutionality of hate speech regulation? Does hate speech regulation violate the core free speech principle constitutive of democracy? Or do values such as the commitment to equality or individual dignity legitimately override the right to free speech in some circumstances? In attempting to answer these and other questions, this book focuses on highly topical issues such as homophobic speech, Holocaust denial, incitement to terrorism, veiling controversies, and the Danish cartoons depicting the Prophet Muhammad. It includes interdisciplinary perspectives from law, philosophy, history, psychology, and literature, and provides comparative perspectives from experts in various countries including Australia, Canada, France, Germany, Hungary, and Israel, as well as from the United States and the United Kingdom.
Eric Heinze
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199548781
- eISBN:
- 9780191720673
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548781.003.0011
- Subject:
- Law, Human Rights and Immigration
All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been ...
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All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.Less
All European states prohibit some form of hate speech. U.S. law fundamentally precludes such bans. Euro-American comparisons can shed light on debates about hate speech, but little attention has been paid to comparative methodology. In view of the political and symbolic importance of free speech, the trans-Atlantic divide inevitably invites cultural comparisons. It is important to avoid drawing broad conclusions about deeper Euro-American differences based solely on black-letter norms. Unduly broad extrapolation from formal norms can lead to problems of essentialism and ahistoricism. Attention is paid in this chapter to the balance between formalist and realist jurisprudence as a pathway into constructive comparisons.
Robert A. Kahn
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199738922
- eISBN:
- 9780199895199
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199738922.003.0004
- Subject:
- Law, Public International Law
This chapter argues that “bare” Holocaust denial—the denial of the gas chambers, the six-million figure, and the Nazi policy of extermination—is, in those parts of Europe with direct experience with ...
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This chapter argues that “bare” Holocaust denial—the denial of the gas chambers, the six-million figure, and the Nazi policy of extermination—is, in those parts of Europe with direct experience with Nazi rule, a form of hate speech. It falls into this category for a number of reasons. First, there is a well-organized movement on the extreme Right that uses Holocaust denial to rehabilitate Hitler and the Nazis. Second, in countries where descendants of the victims and perpetrators live together, denial—and state toleration of it—suggests that the agreement to treat May 1945 as “Ground Zero” is open to revision. This helps explain how even an advocate of free speech such as Deborah Lipstadt can hesitate when it comes to Germany and Austria. Finally, by ignoring the deaths of thousands of people, deniers separate the survivors from the rest of society, a separation that imposes the type of “aloneness” that is characteristic of traditional hate speech.Less
This chapter argues that “bare” Holocaust denial—the denial of the gas chambers, the six-million figure, and the Nazi policy of extermination—is, in those parts of Europe with direct experience with Nazi rule, a form of hate speech. It falls into this category for a number of reasons. First, there is a well-organized movement on the extreme Right that uses Holocaust denial to rehabilitate Hitler and the Nazis. Second, in countries where descendants of the victims and perpetrators live together, denial—and state toleration of it—suggests that the agreement to treat May 1945 as “Ground Zero” is open to revision. This helps explain how even an advocate of free speech such as Deborah Lipstadt can hesitate when it comes to Germany and Austria. Finally, by ignoring the deaths of thousands of people, deniers separate the survivors from the rest of society, a separation that imposes the type of “aloneness” that is characteristic of traditional hate speech.
Maleiha Malik
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199548781
- eISBN:
- 9780191720673
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199548781.003.0007
- Subject:
- Law, Human Rights and Immigration
This chapter argues that traditional models of liberalism that define democracy as the creation of a public liberal consensus are not an appropriate basis for political engagement with contemporary ...
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This chapter argues that traditional models of liberalism that define democracy as the creation of a public liberal consensus are not an appropriate basis for political engagement with contemporary extremist groups. It proposes an alternative way of defining the goals of liberal politics based on the concepts of ‘agonistic respect’, ‘deliberative democracy’, and ‘discourse ethics’. Agonistic respect and deliberative democracy create political space for extremist groups. At the same time, the principles of discourse ethics contain the potential harm caused by extremist ideas and practices. The chapter also advocates the increased use of non-legal strategies rather than criminal law as a respnse to hate speech.Less
This chapter argues that traditional models of liberalism that define democracy as the creation of a public liberal consensus are not an appropriate basis for political engagement with contemporary extremist groups. It proposes an alternative way of defining the goals of liberal politics based on the concepts of ‘agonistic respect’, ‘deliberative democracy’, and ‘discourse ethics’. Agonistic respect and deliberative democracy create political space for extremist groups. At the same time, the principles of discourse ethics contain the potential harm caused by extremist ideas and practices. The chapter also advocates the increased use of non-legal strategies rather than criminal law as a respnse to hate speech.
