Hate Speech in 500 words or less (Class Blog ketchup for you guys)

February 24, 2012

Scanlon’s  “Content Regulation Reconsidered”

Scanlon makes a statement I agree with, namely, “we cannot understand or interpret the idea that content-based regulation is impermissible without ourselves drawing distinctions between different forms of expression on the basis of their content…and making judgments about the relative value of these expressions.”

With this lesson in hand, Scanlon tweaks his own Millian Principle (162) to include this concept. The original Millian Principle concentrated on citizen autonomy to assure freedom of expression, but ignored the differing “degrees to which content-based restrictions of expression” threaten our expressive autonomy. There are undoubtedly harmful and non-harmful results to a complete freedom of speech and judging these as either harmful or not is the act of putting statements on a relative scale. False advertising is much less harmful than announcing over the public airwaves that a nuclear weapon has been detonated in the capital. Both are harmful but the nuclear weapon “joke” would cause much greater harm due to people’s innate fears of nuclear attacks. There’s also every case in between. Though an extreme example, it hopefully clarifies the sheer complications of trying to make judgments regarding any rights and the complexity in defining permissible and impermissible restrictions where opinions are so varied.

Scanlon gives several examples of areas where the gov’t restricts freedom of expression. These include judgment regulation (false advertising), restrictions on viewpoint discriminations (with very interesting questions about the empirical value of editorial responses) and subject-matter restrictions (Mosley v. Police). In each of these the court seems to be trying to keep its eye out for fairness, distortion of facts, citizen autonomy and, of course, general gov’t interests.

If anything sticks with me from this article (and Stone’s) it’s that the regulation of our freedom of expression is a tricky task for the courts. As an advocate of free speech, I don’t believe that restrictions should be handed down in any haphazard fashion and that any restrictions required to be enacted should be so done with the utmost care and wisdom. While the subjective standard of discerning high and low speech for regulation, I agree, seems overly subjective we all discern between harmful and non-harmful speech. The only difference is whether we believe the harmful sort should be restricted. If we believe it should be restricted, we are eventually forced to draw the line somewhere.


Mill’s On Liberty

The Introduction of On Liberty does not argue for any single form of gov’t. What it does is set forth the grounds and restrictions upon which a liberal government should be established, and most importantly warns the citizens of what dangers they need to guard against. The criteria for all of these express the importance Mill assigns to individual liberty above and beyond that of social. In this case, the individual acting as “sovereign over himself” (so long as he does harm to no other) is of the highest importance. Individual liberty must be kept in place for social liberty to thrive for any period of time without becoming a “tyranny of the majority.”

From the beginning he points out that self-government and similar phrases mean only, that the majority or most active group of people rule over minority groups. He advises that just as many precautions should be taken against this influential group in order to prevent a “tyranny of the majority,” whose power is based primarily on societal forces. These are in many senses more difficult to escape as their means of influence are more subtle. The rules of society are generally thought to be “self-evident” and “customary.” The potential harm of these traditional norms is both more difficult to discern and by that very notion more difficult to escape.

Protection against this sort of “tyranny of the prevailing opinion and feeling” would necessarily be a protection against counters from the social, religious, and collective pressures of society, in general, that threaten social and moral repression to an individual’s Liberty of Thought. This initial repression of Thought is the most harmful, eventually hindering the Liberty of Individual Tastes, and the Liberty to Unite, which are based on Liberty of Thought. Those guilty of this kind of repression cannot be demonized since we all have a tendency to expect others to conform to our way of life in some way. This is human nature. It makes the world around us more predictable.

Even after a gov’t has set up the necessary means to a free society (Liberty of Thought, of Tastes, and to Unite, according to Mill) the Introduction urges us not to forget to stay mindful of and vigilant against those, including ourselves, who would influence the thoughts and opinions of others through moral and social repression. Without the individual liberty of self-sovereignty the three tenants of social liberty cannot survive.


Brink’s “Millian Principles, Freedom of expression, and Hate Speech”

Though I am what I would call a free speech advocate, I agree almost entirely with Brink on the deliberative approach to regulation of Hate Speech. I would say there is a strong interest for the state to have educated well-versed citizens if it is ruled by them. I believe Mill would agree with this also […]. For any society to function as such it would have to preserve the rights of individuals to develop deliberative competence through education so that they can practice their liberty of thought and express it via liberty of action – comprising the full range of an individuals deliberative capacities.

For any one person there are words or actions that can leave us speechless. Certain historically repressed minorities are even more susceptible to certain attacks that bring in painful historical significance. A certain degree of intimidation can be reached that leave them speechless in the wake of a public debate. If injuries continue they may give up entirely on the political discourse and the process in general. This surrender leaves them even more in the minority as they will be under represented concerning important matters that these groups may have much insight into.

Offense is something that must be tolerated if one lives in a free society, but hate speech is of special concern for two reasons. 1.) It inflicts great harm to the individual or group that it targets, as expressed by the Lawrence quote. We’ve all been called names, but I think we can all think of times where some particular phrase caught us off guard and left us standing there with our heads cocked in shocked silence feeling like maybe we should walk away. We must imagine living in a world where these types of phrases, while not commonplace, are more real on a day-to-day basis than we care to notice. 2.) Following from this, hate speech, because of its injurious nature, even retards the Millian concept of deliberative values. These are the fundamental values by which we judge, form and hold our opinions. If a group withdraws from public debate and discussion because they don’t feel comfortable due to minority-biased attacks they lose their ability to make intelligent decisions.

Though this is dangerous territory Brink has shown that it is worth a try to continue to try forming laws to regulate harmful hate speech. If the First Amendment is supposed to promote the free exchange of ideas we must do what we can to ensure that all parties that are willing to respectably participate are comfortable in getting involved. The restriction of hate speech as a separate more harmful class from discriminatory speech should be enforced in a scaled manner even if it is more time consuming and labor intensive. The mutual respect of all parties must be somehow maintained and deliberative values must be upheld before fundamental liberties can be expressed.


Sumner’s  “Incitement and the regulation of Hate Speech in Canada”

Sumner analyzes the interpretation of a Canadian hate speech law, determined in R. v. Keegstra, under the Millian microscope an attempt to determine if the law holds up to the idea of classical liberal free speech. Describing the courts decision he notes that the interpretation of the law comes down to the explication of a single phrase: “wilful promotion of hatred” (Sumner, 213).

Though the parliament seems to have carefully chosen the word “promote” over incite to separate the promotion of hate speech from the incitement of hate crimes, Chief Justice Dickson interpreted “promote” to mean “incite” giving the court freer reign over restrictions of speech. The word “incite” seems to have the connotation of action while hatred is nothing but an emotion, though a potentially harmful one.

The promote/incite distinction should have remained. There is nothing wrong with separating the intent of a hate crime suspect from that of a hate group. Though intent cannot be prosecuted, evidence of links to a crime can be. If a hate crime is committed and a direct connection can be shown such as the person in question being (now or previously) a member of a hate group the authorities should have the clear ability to prosecute both the suspect and the hate group. As originally written by parliament, the law forbidding the promotion of hate speech seems to add more of a potential of including hate groups as accomplices to hate crimes – should that connection be found. As interpreted in the Keegstra decision there may be problems prosecuting hate groups for egging the individuals on because the interpretation. Though they may promote hatred, they may not incite the individual to perform violence on account of that hatred.

The law as handed down in Keegstra was too broad and examples should have been handled in a civil or social manner. To take another account, the protesters of the Westboro Baptist Church should also have the right to protest as they please against any chosen group without criminal prosecution. The opposition must of course be given equal rights to counter-protest. Should a member of that group make actions to harm or proceed to harm a member of the other group and a direct connection can be made to the hate group, then the hate group should be held partially liable for the individual’s actions.

Some may ask about social inequity, but this is a subject for another time. Infiltration of hate into the general population causing social inequality through political and social pressures are prevalent in all cultures including our own. These types of social barriers are harder to break down as they can be seen as part of a societies cultural structure. So even these formerly acceptable walls of veiled prejudice must be broken down brick by brick.


MacKinnon’s   “Should we Tolerate Holocaust Denial?”

I agree with McKinnon that we should defend highly offensive and many times inaccurate speech legal based on the weight given to free speech in our society. But she had me wondering how she was going to justify the exclusion of this legal form of expression from academia. I believe I’ve said something like this before, but offense does not give a right to censorship. This time I also had academic censorship in mind.

Though she spent less time on it on this argument in favor of allowing HD in academia, I believe the second argument of relativism (23) was probably the most pressing point. This point stated that all truth is relative so HD should be allowed in to universities to teach their side. We can all agree that history rests on the observer and our history courses are much different than those of other cultures. If we believe this how do we keep historians like David Irving and others from attaining teaching positions at universities? McKinnon’s response to this argument does not do it justice. Her response seems to be unfocused and possibly ad hoc, stating that maybe we should just shut down the history departments and possibly universities themselves. Why keep them open if the instructors do not have any special claim to knowledge? This paragraph was a bit unclear, and the hurried tone may have been because there was not much in response to that. She admits there is relativism in all fields, but her second argument could easily have been used for the first and the second.

Her response to the second argument that complains about administrators who prevent HD participants from gaining positions at universities as self-serving. Here she emphasizes, for at least the second time, that HD proponents are not academics and this has been attested to “sometimes under oath.” A university is a place where people come to gain knowledge in their particular field of interest (this reason contested in the third argument for letting HD proponents into academia). Non-academics should not be allowed to teach those who are paying to come to college for the purposes of knowledge gain and widening their understanding. If we, as students, wanted to learn how not to use our brains we probably could have paid less for that.


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