The “Who?” Question in the Hate Speech Debate: Part 2: Functional and Democratic Approaches

Abstract

This two-part article addresses the “Who?” question in the hate speech debate: namely, which characteristics, social identities or statuses should or should not be treated as protected characteristics within a body hate speech laws? Using United Kingdom incitement to hatred laws as a focal point, the article outlines and critically appraises five broad approaches to specification. Part 1 deals with consistency specification, which highlights norms of consistency both within incitement to hatred law itself and in relation to other laws, practical specification, which focuses on the ostensible goals or apparent aims of incitement to hatred laws, and formal specification, which looks at the formal qualities of the characteristics themselves and to the different forms of people’s relationships with those characteristics. And Part 2 considers functional specification, which concentrates on the underlying or real functions, purposes or objectives of incitement to hatred laws, and democratic specification, which appeals to democratic procedures as well as to democratic values, norms and principles that speak to the proper scope of incitement to hatred laws. Along the way I shall also critically assess a range of substantive arguments about which particular characteristics should or should not be covered by incitement to hatred laws given the aforementioned approaches. My main conclusion shall be that each of the approaches has its strengths and weakness and that, partly because of this, no single approach is adequate by itself as a tool for specifying the proper scope of incitement to hatred laws, but also, by the same token, no approach should be ruled out entirely. Instead, the best strategy is one that combines together all five approaches in reasonable ways given the law, the characteristic and the context.