Abstract
Abstract One of the most powerful arguments against state regulation of expression has, in recent years, been presented in a reinvigorated and developed form. The argument in question maintains that state regulation of expression undercuts the legitimacy of the law because it involves the suppression of a source of democratic contestation. The paper distinguishes between three importantly different versions of this legitimacy argument that existing work fails to clearly separate. Doing so is important because different forms of the legitimacy argument are supported by different considerations, vulnerable to different objections, and have different implications. Further, the paper levels two serious objections to legitimacy arguments against hate speech regulation. Firstly, it offers a consolidated defence of an extant rejoinder to the legitimacy argument, based on the claim that some person’s speech can ‘silence’ the expression of others. Secondly, the paper challenges the claim that the regulation of hate speech is necessarily viewpoint discriminatory.
Highlights
Silencing and LegitimacyThe suggestion that society itself has a propensity to stifle free expression is not new
Within the voluminous work that defends freedom of expression against the threat of state regulation, the argument that such regulation threatens the legitimacy of the laws of the state is among the most powerful
The argument in question maintains that state regulation of expression undercuts the legitimacy of the law because it involves the suppression of a source of democratic contestation
Summary
The suggestion that society itself has a propensity to stifle free expression is not new. Suppose a black person writes an opinion piece which predictably invites a swathe of online comments such as “this proves beyond doubt that blacks have low iq,” and “n*ggers don’t know anything about politics.” The context of such hateful speech conjoins the expression of viewpoints that are general in character, and plausibly a part of public discourse so understood, with a targeted vitriol such that it might constitute a cost and may form a meaningful disincentive to expression. Even if the comparison is between hate speech regulation and hate speech as a part of public discourse, rather than social costs more generally, it isn’t clear, in advance of further studies to this effect, that state regulation has been more a more profound discouragement to speech Further to this, it is widely accepted, including by those who advocate the legitimacy argument, that speech can be ‘chilled’ even when it is not legally prohibited and, importantly, that such chilling can be legitimacy damaging. Elford way corrode legitimacy by frustrating certain persons’ democratic say, is that it depends on an appeal to the very same dynamic of freedom restriction that the advocates of the legitimacy argument readily admit
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