Does Regulating Hate Speech Undermine Democratic Legitimacy? A Cautious \u2018No\u2019

Andrew Reid

doi:10.1007/s11158-019-09431-6

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 (hereafter the Legitimacy Argument). 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.

Highlights

One argument against restrictions on hateful speech is that they undermine the democratic legitimacy of the state
Where equal political status is a necessary condition of legitimate policy-making, hate speech can undermine the legitimacy of this process
This paper has broadly sided with those who have argued that the restriction of hate speech might enhance democratic legitimacy

Summary

Introduction

One argument against restrictions on hateful speech is that they undermine the democratic legitimacy of the state. This article sides broadly with the second position, and argues that there are reasons to restrict hateful speech on democratic grounds in some instances Both proponents and critics of the Legitimacy Argument draw on the idea of effective political voice, or the capacity to shape and influence laws. It helps separate the ‘moving parts’ of the various positions in the debate around the Legitimacy Argument: the requirements of democratic legitimacy; the role of freedom of expression in this process; and the specific impact of hateful speech on it It shows that both sides have a similar view of democratic legitimacy in mind, and highlights that the disagreement between the two positions is more pronounced on the question of how to apply a democratic ideal in practice, and on the empirical effects of hate speech

A Note on Definitions and the Scope of the Argument

Conclusion