Tuesday, November 28, 2017

The Problem with Hate Speech Laws

Via John S Quarterman on Flickr

Many jurisdictions in Europe have laws that criminalise hate speech and there is no shortage of campaigners requesting such prohibitions. The debate is particularly acute on college campuses, where the protection of minority students from such hate speech is increasingly being viewed as central to the university’s mission to provide a ‘safe space’ for education.

That’s not to say that hate speech prohibitions have proved uncontroversial. On the contrary, they are among the most controversial prohibitions that are discussed today. Some people feel that it is difficult to adequately define hate speech, that it is hard to explain why hate speech is harmful (if it is harmful), and that prohibiting it conflicts with other important values such as the value of free speech.

Several philosophers have tried to engage with these controversies. Steven Heyman and Jeremy Waldron are among the most prominent. They have provided sophisticated philosophical justifications for prohibitions on hate speech. They have done so by arguing that hate speech undermines the liberal democratic commitment to recognising human dignity and equality. In a recent(ish) article, Robert Mark Simpson has argued that their justifications are flawed.

In this post, I want to look at Simpson’s argument. I do so partly because it is interesting in its own right and partly because it reveals certain problems with other attempts to outlaw/prohibit behaviour that is linked to the systematic oppression of minorities.

1. The Heyman-Waldron Argument for Hate Speech
We’ll need to start by defining ‘hate speech’. After all, we cannot understand the potential justifications for its prohibition, without understanding what it is. Here’s the definition favoured by Simpson (which comes from earlier work by Corlett and Francescotti):

Hate Speech: Is any symbolic, communicative action which wilfully expresses intense antipathy towards some group or towards an individual on the basis of membership in some group.

This is quite a general definition. Examples might make it more concrete. Using a racial slurs (e.g. ‘kike’, ‘gypsy’) to describe someone who belongs to a particular racial or ethnic minority might count as hate speech according to this definition. But it is hard to be overly concrete on this matter. It is all very context-dependent. The specific forms that hate speech takes will vary, to some extent, from country to country and culture to culture. It will also vary depending on the pragmatic context in which the speech is uttered.

It seems plausible to suppose that hate speech, so defined, can be harmful. But the harms it entails could be quite variable. It could cause harm to a specific individual in the form of psychological trauma or upset. But lots of speech, some of it not falling within the definition of hate speech, could cause such harm. For example, describing someone’s work as ‘incompetent’ or ‘abominable’ could cause a great deal of psychological upset, but it would not count as hate speech, nor would we think it requires special legal prohibition.

For this reason, the modern tendency is not to think about the harm of hate speech in terms of direct harms to specific individuals, but rather as a type of collective institutional harm — something that contributes to a social climate or set of institutions in which members of minority groups continue to be oppressed. This makes the harm of hate speech more abstract and indirect.

The key feature of Heyman and Waldron’s work has been to flesh out this ‘institutional harm’ view of hate speech in more detail. There are subtle differences between their arguments, but they are grounded in the same basic idea. They argue that hate speech is problematic because of the signals it sends to members of minority groups concerning their moral and legal status within a given community.

They both argue that modern liberal democratic states are founded upon a principle of moral equality. This principle holds that all people, regardless of race, religion, ethnicity, gender (etc) are moral equals. No one individual has a superior moral or legal status to another. And they both argue that the problem with hate speech is that it tells members of minority groups that they do not share in this equal moral status. Heyman’s version of the argument focuses on fundamental rights and how language signals recognition of the ‘other’ as a rights-bearer. Waldron focuses more on the gap between de jure equality and de facto equality. Many liberal democratic legal systems include provisions that formally recognise the equality of all persons, but then fail to live up to this ideal in practice. He thinks the problem with hate speech is that it makes members of minority groups less confident in the official commitments of the system. They no longer feel that the community is a safe space for them.

But how exactly does hate speech do this? It seems implausible to suppose that one particular instance of hate speech can shake the foundations of the legal order in the manner envisaged by Heyman and Waldron, or undermine an individual’s confidence in a social system to such an extent that they no longer feel safe. One neo-Nazi does not make for a system of oppression. Simpson suggests that an analogy between hate speech and environmental pollution can explain the idea:

The Pollution Analogy: “[T]hose who tend to hold this view of hate speech tend to think of individual acts of hate speech operating in a way that is analogous to pollution. Individual acts of pollution can inflict discrete harm on specifiable victims. Many acts of pollution don’t inflict harm in that way. However, even when there are no specifiable victims, all acts of pollution have a degrading impact on environmental systems whose degradation beyond a certain point does inflict harms on individuals….Analogously, acts of hate speech do not always directly harm specifiable individuals, but they all contribute, so one may argue, to the creation and sustenance of a social climate in which harms and disadvantages redound to members of vulnerable social classes.” 
(Simpson 2013)

That’s the core of the Heyman-Waldron line of argument. Hate speech should be prohibited because it contributes to a climate of intimidation that cumulatively degrades and subordinates particular minority groups.

2. The Injustice of Hate Speech Prohibitions
So what’s wrong with this argument? It sounds superficially plausible, doesn’t it? Why should we reject it? Simpson’s counterargument is very straightforward. He agrees that the institutional harm highlighted by Heyman and Waldron is superficially plausible. In fact, he thinks it may even be true that individual acts of hate speech cumulatively result in a polluted social climate. The problem is that hate speech laws are typically targeted at the individual acts, not the cumulative result. Unless it can be shown that the individual act meaningfully contributes to the institutional harm, imposing a sanction on the individual act is not just.

Here’s the argument in more formal terms (this is my reconstruction):

  • (1) Hate speech laws target individual behaviour (i.e. individual acts of hate speech)
  • (2) If the harm of hate speech is institutional/structural, hate speech laws can only be just if individual acts contribute meaningfully to that institutional/structural harm.
  • (3) The harm of hate speech is institutional/structural (conclusion of the Heyman-Waldron argument)
  • (4) Individual acts of hate speech do not meaningfully contribute to that institutional/structural harm.
  • (5) Therefore, hate speech laws are unjust.

The controversial premises here are (2) and (4). Premise (2) is working off an intuitive theory of causal responsibility and just punishment. The idea underlying it is that an individual subject S can only be rightly held responsible for a harm X, if their behaviour was a significant or primary causal factor in X. This is a theory of just punishment that applies in many areas of law, in particular criminal and civil law, where it has to be shown that ‘but for’ an individual’s behaviour a harmful result would not have occurred. You could certainly challenge this intuitive theory of punishment. People already do so in the context of harms caused by complex organisations or autonomous technology, but it is still the core of our intuitive theory of just punishment.

Premise (4) is the one that Simpson dedicates most of his time to. He thinks it is fairly obviously true that an individual act of hate speech cannot, by itself, create a system of social exclusion, particularly when the legal system includes provisions that formally protect equal status. He thinks that to assert the contrary view is to assign too much importance to the actions of outlier individuals. But he notes that some participants in the hate speech debate say that their arguments do not depend on making complex causal claims of this sort. Waldron is a good example. His argument is that the mere presence of hate speech — any hate speech — is enough to degrade the social environment. He is not saying that hate speech is the root cause of systematic inequality. Furthermore, he doesn’t focus on punishment in his justification of hate speech laws. He focuses on the expressive and deterrent functions of the law instead. He thinks, contra free speech advocates like JS Mill, that the government should interfere in the ‘marketplace of ideas’ because this could have a positive long-term effect on the social environment.

Simpson argues that this creates a problem for Waldron. On the one hand, he is explicating the harm of hate speech in terms of its mere presence and visibility in society. On the other hand, he is defending hate speech laws in terms of their long-term, consequential impact on social order. The former claim tries to sidestep complex causal questions; the latter engages with them directly. This leads to a tension in the argument. The only way for Waldron to justify the claim concerning the consequential impact of hate speech laws on society is to make an assumption about the meaningful causal role of hate speech in creating such an environment. This buts up against the view that Simpson defends in premise (4).

Simpson goes on to point out that it is, in any event, unlikely that the mere visibility or presence of hate speech will undermine an individual’s confidence in a social order that otherwise protects their equal status. The hate speech has to have some credibility behind it, i.e. the individual will have to believe that the hateful views will be taken up by other players and actors in the social system. This, in turn, gets us into debates about the causal links between individual acts and collective outcomes.

3. Conclusion
That’s basically it (I told you this would be brief). Heyman and Waldron argue that the harm of hate speech lies in its contribution to a social order in which minorities are excluded from equal moral status. They both then seek to justify hate speech laws in terms of their ability to mitigate this exclusionary effect. The problem with both arguments is that the use of an individualised tool — the hate speech law — to solve a problem that is not the causal product of any one individual’s actions. This does not sit well with an intuitive theory of just punishment.

There are, of course, some solutions to this problem. For one thing, Simpson’s objection is less impressive when we are dealing with hate speech emanating from individuals with important social influence or power. It’s more plausible to claim that their particular actions will have a meaningful effect on a social order.

Furthermore, it is not as if the law (or legal theorists) have never dealt with this basic problem that Simpson identifies before. There are areas of tort law — e.g. toxic torts — where it can be difficult to prove that particular actions were the ‘but for’ cause of a harmful outcome. An example might be litigation concerning exposure to asbestos and the disease mesothelioma. A single exposure can be enough to cause the disease but this makes it difficult to prove that a particular employer is responsible for the harmful exposure (the same problem arises when the disease is a cumulative result of many exposures that are attributable to different causes). Nevertheless, courts have been willing to assign legal responsibility on the basis of alternative theories of causation and public policy considerations. Similarly, there is an active debate at the moment about legal responsibility for actions that are caused through technological systems (e.g. robots). Philosophers like Luciano Floridi, for example, favour a theory of distributed causal responsibility, according to which, every node with a causal system that is responsible for some outcome bears some of the blame for that outcome. One could imagine similar theories being adopted in the debate about hate speech.

This would mean making a break with our intuitive theory of just punishment, and further assessing the consequences of doing that. Unfortunately, such an assessment lies beyond the scope of this blogpost.

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