Crim Law and Philos

DOI 10.1007/s11572-014-9349-7
BOOK REVIEW

Hate Speech and the Epistemology of Justice

Jeremy Waldron: The Harm in Hate Speech. Harvard University
Press, Cambridge, MA, 2012
Rae Langton

 Springer Science+Business Media Dordrecht 2014

Abstract In The Harm in Hate Speech Waldrons most interesting and ground-breaking
contribution lies in a distinctive epistemological role he assigns to hate speech legislation:
it is necessary for assurance of justice, and thus for justice itself. He regards public social
recognition of what is owed to citizens as a public good, contributing to basic dignity and
social standing of citizens. His claim that hate speech in the public social environment
damages assurance of justice has wider implications, I argue: for hate speech conducted in
private; for pornography; and indeed for any speech that thwarts knowledge of what justice
requires.
Keywords

Hate speech
Justice
Epistemology
Assurance

Opposition to hate speech can, it seems, make one a target for hate. Jeremy Waldron found
himself called a totalitarian asshole, human garbage, and a parasite on society, after
publishing a review that questioned United States First Amendment orthodoxy on this
subject. Waldron had rightly asked about the pronoun we, in a noble-sounding liberal
slogan, freedom for the thought we hate.
[T]he issue is not just our learning to tolerate thought that we hatewe the First
Amendment lawyers, for example. The harm that expressions of racial hatred do is
harm in the first instance to the groups who are denounced or bestialized in pamphlets, billboards, talk radio, and blogs Maybe we should admire some [ACLU]
lawyer who says he hates what the racist says but defends to the death his right to say
it, but[t]he [real] question is about the direct targets of the abuse. Can their lives be
led, can their children be brought up, can their hopes be maintained and their worst

R. Langton (&)
University of Cambridge, Cambridge, UK
e-mail: rhl27@cam.ac.uk

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fears dispelled, in a social environment polluted by these materials? (Waldron 2012,

910)
Becoming in this modest way an individual target of hate might have reinforced Waldrons
choice of topic, but his concern is with hate speech of a different order, racist speech
directed against the groups who are denounced or bestialized, of a kind tolerated by the
US but often damned by its peers. Convinced that its attitude makes the US an outlier
among contemporary democracies, and that there persist profound misunderstandings
about the point of hate speech law, Waldron takes up the challenge of mediating between
the United States and democracies who attempt to combat racial hatred more seriously. His
project follows Ronald Dworkin in method, if not in conclusion: he aims to make best
sense of the law, but rather than assuming the law to have a US First Amendment face, he
considers its appearance in other advanced democracies, which he takes to include the
United Kingdom, Canada and Australia. The result of his sense-making enterprise is an
eloquent, accessible and judicious study, which should appeal to a wide readership.
Waldron locates public hate speech as a kind of group libel, an attack on the dignity of
individuals through their group membership, and he offers a convincing critique of
influential liberal defences of freedom of hate speech that cite the significance of individual
autonomy and state legitimacy in their arguments against hate speech laws. Despite some
troubling omissions, these alone offer ample rewards to the reader.
Waldrons most interesting and ground-breaking contribution, however, lies elsewhere,
in the distinctive epistemological role he assigns to hate speech legislation. He draws on
John Rawlss idea that a just and well-ordered society is one in which everyone accepts,
and everyone knows that everyone accepts, the principles of justice. Hate speech legislation
is necessary for assurance of justice, argues Waldron, and therefore for justice itself.
Public social recognition of what is owed to citizens is part and parcel of basic dignity and
social standing. This recognition is a public good that accrues to individuals, but in a
way that is offered en masse, uniformly, to millions at a time. Hate speech in the public
social environment profoundly damages this assurance of justice, argues Waldron, and
thereby damages justice itself. This central argument has implications for topics much
further afield, as I will suggest shortly. It has implications for varieties of speech that
Waldron leaves aside, for the purposes of this book: for hate speech conducted in private;
for pornography; and indeed (though I wont go into this) for any speech that thwarts
knowledge of what justice requires.
Waldron begins with a sign in a New Jersey street that says, Muslims and 9/11! Dont
serve them, dont speak to them, and dont let them in! We are to imagine a Muslim
family, a father with two children, walking past. The young daughter asks, What does it
mean? Other signs express the same hatred: They are all called Osama on an image of
Muslim children, Jihad Central on the wall of a mosque. Such signs are, he says, on a par
with the racist graffiti, burning crosses, and anti-Semitic signage of earlier eras. To call
such speech the expression of a thought is missing their point. They matter because of
what they do: they send a message to the hated, saying keep out, be afraid! They send a
message to would-be haters, saying you are not alone. The work hate speech does, says
Waldron, is largely performative (Waldron 2012, 166). In recognizing this, Waldron joins
the voices of many who have argued that such signs matter, not because of the thoughts
they express, but because of the harms they enact: they are not just ideas, but acts that play
a crucial part in the creation of hierarchy and exclusion (Delgado 1993; Matsuda et al.
1993; Maitra 2012; MacKinnon 1987, 1993; Langton 1993, 2009; McGowan 2003, 2009;
Langton and Hornsby 1998; Kennedy 2002).

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This perspective chimes with the United Nations description of hate speech, in its 1965
Convention on the Elimination of All Forms of Racial Discrimination, which condemns
racist propaganda
based on ideas or theories of superiority of one race or group of persons of one colour
or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form; [also the] dissemination of ideas based on racial superiority or
hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic
origin (UN 1965)
Hate speech laws in many western democracies are justified partly in terms of
commitments to this Convention. On the picture implicit here, there are both causal and
constitutive sides to hate speech. The racist utterance constitutes a certain speech act, a
performative or illocutionary speech act, as J.L Austin put it: for example, it incites and
promotes racial discrimination and hatredif we understand promotes in an advocacy
sense. And it has certain effects, perlocutionary effects, in Austins terms: it
disseminates ideas based on racial superiority, and promotes racial hatred and
discriminationif we understand promotes in a causal sense (cf. Austin 1962;
Anderson et al. 2012; Langton 2012).
When Waldron speaks of the harms of hate speech, I take him to be thinking of harms of
both kinds, sometimes with a weight on the illocutionary or performative: the harms
emphasized in this book are often harms constituted by speech, rather than merely caused
by speech, as he puts it later (166). Waldron is careful to distinguish this from an offence
model, which psychologizes the harm in hate speech as mere psychological discomfort, or
a feeling of offence. He acknowledges his debt to Catharine MacKinnon, who said, speech
acts. We can build on this. When hate speech denounces or bestializes certain people,
it is a certain sort of illocutionary speech act that, besides inciting hatred, does more:
perhaps accuses its targets of terrorism or conspiracy, or ranks them as evil, inferior or
animal-like. When it says to its targets, Keep out!, Be afraid!, it warns and threatens
them. When it says to other would-be haters, You are not alone!, it normalizes and
legitimates hatred and discrimination. Such speech has in addition perlocutionary effects
on its hearers, spreading racial hatred, and (so Waldron suggests) crushing the hopes of
some for their lives and for their children. Harms of both kinds turn out to be central to
Waldrons positive arguments about group libel, dignity, and assurance.
First, though, his critique of traditional liberal argument: Waldron questions Ronald
Dworkins claim that the legitimacy of the state depends in part on its tolerance of hate
speech. Would Dworkin really think that law in the United Kingdom lacks legitimacy
because it takes legal measures to combat hate speech? Almost every democracy has hate
speech laws which, according to Dworkin, would spoil the legitimacy of any anti-discrimination laws that they have. If Dworkin were right, says Waldron, there would be an
ironic result: it would be a mistake to prosecute racial discrimination in the UK, but not in
the US, since the UKs anti-discrimination laws are spoiled by its hate speech laws.
Waldrons literal-minded question is welcome, in the context of a sort of theorizing which
so often trades in abstractions. He shows convincingly how hard it is to take Dworkin
seriously on this score.
But surely a more fundamental objection lurks in the wings. In response to Dworkin, we
can say something stronger: Dworkin is wrong even by his own lights. Dworkin is committed to a principle of equalitya principle of equal concern and respect, as he puts it.
Given that hate speech is motivated by racial prejudice and promotes inequality, it is, on

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the face of things, incompatible with a principle of equality. Preferences for uttering hate
speech are prejudiced, therefore (in Dworkins terms) illicitly external, to be laundered
out of calculation by an egalitarian government, and therefore the sort of thing citizens
need rights to protect them from. Indeed, Dworkins own combination of arguments
against racial discrimination, and in favour of affirmative action, could easily be adapted to
defend hate speech legislation in just the way they have been adapted to defend pornography legislation (Langton 1990). Applying Dworkins arguments in this context, first, the
targets of hate speech would have rights against it (in Dworkins terms, a successful
argument of principle), and second, a state aiming to promote equality could constrain
hate speech, since hate speakers would lack rights against it (in Dworkins terms, a
successful argument of policy).
Waldron also questions the doctrine of mental mediation, whereby speech is to be
protected when any harmful effects are mediated through the minds of its hearers. This
approach is sometimes aligned with autonomy-based defences of hate speech, where
freedom for the thought we hate is to be protected in the name of both speakers and
hearers autonomy. He devotes a chapter to Edwin Baker, a champion of this approach.
According to Baker, the speaker gains in having the right to express his hateful thought,
given the distinctive role of speech in autonomous self-disclosure. Meanwhile, any ill
effects of hate speech are the hearers responsibility: even the denigrated target is free to
respond in the defiant posture of a critic. Waldron plausibly argues that the options
available to victims of hate speech are far more limited than Baker envisages. And, as for
the speakers, their gains in terms of autonomous self-disclosure may not trump all other
harms, but need to be weighed in the balance.
Again, though, a more fundamental objection surely lurks in the wings. In response to
Baker, we can say something stronger. Baker too is wrong even by his own lights. What is
missing in Waldrons reply to Baker is that, in autonomys own terms, hate speech is a
disaster. As Susan Brison has argued in her classic paper (Brison 1998), if you care about
autonomy, you should be worried about hate speech. Brison is one of many who have
urged us to rethink autonomy in social and relational terms. After all, what options are
visible to you, and what autonomous choices are available to you, will depend on the
conceptual resources and self-understandings available to you, all of which can be constrained by hate speech itself. Our autonomy is constrained by the social meanings of the
options we have, which in turn is given in part by the speech of those around us. Waldron is
sometimes sensitive to this. He speaks movingly about the diminished prospects of those
who try to lead their lives and bring up their children in a social environment damaged by
hate speech. But he appears to miss the implications for autonomy. If we follow Brison, we
will see how hate speech threatens autonomy. Far from being a matter of autonomous selfdisclosure, hate speech is bad for the autonomy of hate speakers and their targets alike. In
evaluating hate speech, we are not just weighing the civil standing and dignity of victims
against the supposed self-revealing autonomy of hate speakers. We are weighing an illusory gain in autonomy for hate speakers, against a very real loss in autonomy for their
targets. Hate speech is bad for everyones autonomy: the speakers, and the spoken against.
So, I suggest some friendly amendments to Waldrons critique of these liberal arguments. Waldron wants to defend a liberal case against hate speech, but that case is all the
stronger when we see how liberal values support it. By liberalisms own lightsby the
lights of equality and autonomyit is the un-American democracies which turn out to be
closer to the liberal ideal.
Turning now to Waldrons positive arguments, recall those paradigm cases of hate
speech: speech acts that falsely accuse their targets of terrorism and conspiracy, or that

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rank people, in virtue of their group membership, as subhuman and animal-like. Speech
acts like these can count as libel when directed at individuals, and in Beauharnais v.
Illinois, Justice Frankfurter said the same should apply when they are directed at groups:
No one will gainsay that it is libelous falsely to charge another with being a rapist,
robber, carrier of knives and guns If an utterance directed at an individual may be
the object of criminal sanctions, we cannot deny to a State power to punish the same
utterance directed at a defined group, unless we can say this is a willful and purposeless restriction unrelated to the peace and well-being of the State. (Quoted at 51)
Waldron takes seriously the rationale behind Beauharnais, despite its controversial status
in US law, andsetting aside other approaches to hate speech, e.g., as fighting words
he considers how one can regard these reputational attacks as assaults upon the dignity
of their target. Dignity is a concept with a checkered history (see Rosen 2012) that has
attracted its share of debunking, but Waldron unpacks it in terms of ones fundamental
status as a person and as a member of society in good standing, which commands respect
from others and from the state.
In exploring a group libel approach to hate speech, Waldron distinguishes three ways
that hate speech might assault group dignity and reputation. Such speech might make
certain factual claims, e.g., that members of the group are terrorists, rapists, or knifecarriers. It might express certain opinions, for example, that they are animals. Or it might
be degrading in still some other way: for example, a Whites Only sign degrades its
targets, as well as discriminating against them. Waldrons approach here could benefit,
perhaps, from closer attention to speech acts and their role in social subordination, as
described in the work of critical race theorists and feminist political philosophers (many,
but see, e.g., Delgado 1993; Matsuda 1993; MacKinnon 1987, 1993; Maitra 2012;
McGowan 2003, 2009; Langton 1993, 2009, 2012). For a start, the fact/opinion contrast,
despite its popularity with journalists and school teachers, cannot bear much weight. That
the so-and-sos groups are terrorists, or animals, is in both cases a matter of opinion and
claimed fact. What Waldron is after, perhaps, is a contrast between description and
evaluation, or between assertion and verdictive ranking, but even this would need elaboration, given the availability of thick concepts and racial epithets, which enable speakers
to perform both speech acts at once. As for degradingness, it is not obvious what this adds
to the taxonomy, since factual claims and evaluative rankings could alike be degrading to
their targets. But with the idea that these undermine the dignity and reputation of their
targets, we come closer to Waldrons central epistemological argument.
According to Waldron, dignity demands recognition respect, as Stephen Darwall has
called it (Darwall 1977), which is owed universally and in all contexts, and differs from the
sort of respect we show when we appraise someone, for example, for the contingent
social honours they have earned, or their virtues or vices. This basic respect involves an
entitlement to have others take seriously and weigh appropriately the fact that they are
persons when deliberating about what to do (Waldron 2012, 87). Waldron is eloquent on
the harms to dignity that may result from hate speech, if dignity is taken to involve
respectful social recognition. But I confess to doubts. Setting aside the large question of
whether such recognition can be mandated, it is surely open to at least racists to claim that
their attacks are at the level of appraisal, not at the level of recognition, in Darwalls
special sense. Racist speech acts may not be (with some exceptions) attacks on the fundamental dignity owed to each person as a human agent, whatever that may involve. They
may be false or mistaken moral appraisals, which castigate members of racial groups for

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their (perceived) vices, such as (in Beauharnais), being a rapist, robber, carrier of knives
and guns .
The point is simple. On the approach Waldron favours, negative appraisal-respect is
compatible with positive recognition-respect. That, after all, is just what is presumed to
be owed to genuine rapists, robbers and carriers of knives, dealt with in the penal system.
Some hate speech that bestializes its targets by comparing them with animals may indeed
be at odds with this more basic recognition-respect. But much hate speech, perhaps most,
will not.
What this suggests is that ones fundamental status as a person, and ones status as a
member of society in good standing, are two very different things. Convicted rapists,
robbers and carriers of knives presumably maintain the former, but not the latter. And the
problem with much hate speech is that it libels by attacking the virtue and social standing
of its targets: it libels in virtue of its hateful appraisal, rather than its hateful failure to
recognize human personhood. The upshot is that Waldron needs to do more to show what
is wrong with hate speech when it is merely hateful appraisalif merely is the right
word to use, for accusations of rape, conspiracy, and worse, which nevertheless leaves
intact its targets fundamental status as a person.
The chief route to Waldrons epistemological argument is, in my view, at once more
interesting and more convincing. Hate speech legislation may be required for what he calls
assurance. What is required for justice is not only that norms of justice should apply, but
that they should be known to apply, and hate speech undermines that knowledge. Waldron
regards assurance as a public good, a communal good created and employed collectively.
Hate speech undermines the public good of assurance, and attempts to create a competing
ideal. To motivate his central point, Waldron offers a thought experiment in political
aesthetics. Imagine, he says, a well-ordered, egalitarian society, where basic principles of
justice are respected. Let us suppose that there is no actual discrimination, no degrading
racist treatment of individuals, no unequal pay, no racial violence. Such behaviour is, let us
suppose, incompatible with a well-ordered and just society. Could such a society, despite
the absence of these discriminatory practices, nevertheless have a racist appearance?
Apparently yesif a well-ordered society permits hate speech:
Its hoardings and its lampposts may be festooned with depictions of members of
racial minorities characterizing them as bestial or subhuman . There may be
banners and swastikas celebrating or excusing the genocidal campaigns of the past.
(66)
One might welcome this as part of the energizing diversity of a free marketplace of ideas.
Or one might ask, seriously, whether appearances count. Waldron argues that they do:
The look of a society is one of its primary ways of conveying assurances to its
members about how they are likely to be treated, for example, by the hundreds or
thousands of strangers they encounter or are exposed to in everyday life. (82)
For Waldron, the public look of a society is part of what conveys a sense of security in
enjoyment of fundamental rights. He argues (with Rawls) that a well-ordered society is
one in which everyone accepts, and knows that everyone accepts, the basic principles of
justice: so we do not have justice unless we know we have justice. The look the social
world offers to its members is a public manifestation of a shared commitment to justice.
One implication of this is that more is required of ordinary citizens than liberalism
usually assigns to us. Waldron welcomes this implication, pointing out that the state
necessarily relies on the actions of individuals to comply with and enforce principles of

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non-discrimination, so it should come as no surprise that we face the same situation in this
context.
The reader is left to wonder, though, whether the argument goes far enoughand I
mean, this time, by Waldrons own lights. In considering this epistemological role for hate
speech legislation, there remains a pressing question. How, exactly, does regulating the
appearance or look of public space supply assurance of justice?
Assurance is a success word. Knowledge is a factive. So knowledge of shared commitment to justice requires actual shared commitment to justice. Waldron addresses the
appearance, but not the reality. Regulating the public look may be necessary for justice, if
we accept Waldrons thought experiment, but it is far from sufficient. And if shared
commitment to principles of justice is absentif racism is presentthen protecting a nonracist look to public space would be a sham. What false comfort it would be to have hate
speech legislation that fosters an illusion of assurance, at odds with a hidden racist reality.
The implication of Waldrons argument about assurance is therefore more interventionist than he observes. If assurance is necessary for justice, and requires shared commitment as well as appearance of shared commitment, then democracies will need to do
more. They will need to take measures against a hateful appearanceand against a hateful
reality. They will need to protect the environment from hateful signage, and do what they
can to get rid of racism. That will mean not just the restriction of racist speech, but the
promotion of egalitarianism among citizens. One implication of this, in turn, may well be
the restriction of not just public, but private, racist speech.
Waldrons argument is framed against a background assumption that hate speech is an
aberration, an unsettling exception to an otherwise comforting message about racial
equality, supported by the state, and by an egalitarian majority. He presupposes a shared
commitment to racial equality, knowledge of which is undermined by hate speech. Many
readers will have qualms about his optimism. I will not question it further here, but note
that it is only with his rosy assumption that the proposal has plausibility, taken alone. Hate
speech laws help provide assurance only if there is an egalitarian reality to assure. If the
problem goes deeper, we will have to do more than mend the public look.
One place that Waldron acknowledges that the problem goes deeper is in his discussion
of pornography and gender equality. He draws in illuminating ways on MacKinnons work
to show how speech can act in ways that attack individuals in virtue of their group
membership. But what seems different, to him, about the pornography case, is that its
message is presented as already accepted:
The visibly pornographic aspect of our society has a pedagogical function that
dwarfs in its scale and intensity the attitudes that racist hate speech tries to inculcate.
Not only does pornography present itself as undermining societys assurance to
women of equal respect and equal citizenship, but it does so effectively by intimating
that this is how men are taught, around here, on the streets and on the screen, if not
in school, about how women are to be treated. (91)
He quotes MacKinnon: through its consumption [pornography] further institutionalizes a
subhuman, victimized, second-class status for women. How does it do this? Waldron does
not explore this in much detail, but one answer offered by MacKinnon is this:
Together with all its material supports, authoritatively saying someone is inferior is
largely how structures of status and differential treatment are demarcated and
actualized. Words and images are how people are placed in hierarchies, how social
stratification is made to seem inevitable and right, how feelings of inferiority and

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superiority are engendered, and how indifference to violence against those on the
bottom is rationalized and normalized. (1993, 31)
MacKinnons point about authoritative speech raises questions about the difference it
might make when speakers of hate speech have authority rather than being the renegade
exceptions Waldron envisages. Part of what makes pornographic speech authoritative, in
MacKinnons sense, is not its social respectability, but its perceived expertise: it can rank
women in a certain way, because it purports to be an expert on the subject matter of sex.
And that, in turn, is how it can serve the pedagogical function Waldron describes. That
could apply to hate speech as well, if hate speakers are, in some domains, regarded as
experts on the supposed threats posed by members of supposedly hostile and alien groups.
Suppose Waldron is right that justice requires assurance: that the well-ordered society
will be one in which there is a shared commitment to certain principles, and knowledge of
that commitment. His argument for this conclusion is one of the most interesting, and
convincing, themes of the book. But I cant help wondering: what would be the implications for pornography? It appears that they would be radical. Pornographyas Waldron
allowsattacks both of these: it attacks womens civil standing, and knowledge of
womens civil standing. If what is needed for justice is that everyone accepts, and everyone
knows that everyone accepts, the principles of justice, then pornographys undermining of
that knowledge becomes an urgent problem. Waldron complains that debate about pornography has focused too narrowly on issues of harm as sexual violence, and he recommends closer attention to this neglected epistemological dimension: pornographys assault
on knowledge of what justice requires. Leaving aside the relative importance of these
different aspects of harm, it is clear that, if we were take his advice, we would surely
strengthen a certain feminist argument about pornography.
Central to feminist debate about pornography has been a claim not only that pornography can help to cause sexual violence and harassment, but that it can help to legitimate
such behaviour, and help to silence womens voices of refusal, protest and testimony
(Langton 1993; MacKinnon 1987, 1993). These concerns about legitimation and silencing
have a close relationship to Waldrons concern about the public good of assurance.
According to this feminist argument, pornography can blur lines in ways that undermine
what Waldron calls assurance. Pornography can undermine knowledge of what justice
requires by normalizing sexual violence and harassment and blinding perpetrators and
victims to the legal and normative status of such behaviour. Unjust treatment is thereby
legitimated, and womens voices are silenced. If, as Waldron puts it, the message of
pornography is this is how men are taught to treat women around here, this undermines
knowledge of the treatment to which women are entitled.
If Waldron is right, this failure of assurance is in itself a failure of justicequite apart
from its possible involvement in the injustices of sexual violence and failure of redress.
Recall again Waldrons thought experiment. A mere inegalitarian appearance to society,
even if accompanied by an egalitarian reality, would be an affront to the political aesthetics of a just and well-ordered society. With pornography, we have at the very least an
appearance at odds with womens equal respect and equal citizenship. And when to this is
added the real damage wrought by absence of assurance, the case is stronger still. Women
overwhelmingly do not report rape and harassment, in part because of the absence of
assurance: because of doubts about whether they are in the right, or doubts about their
credibility, or doubts about likely redress. If justice were to demand assurance, then it
would demand far more than we have. It might demand massive state intervention to help
banish those doubts and create knowledge of what justice requires with respect to the

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sexual treatment of women. It might demand legislation modeled on the hate speech laws
Waldron approves, or educational efforts on a heroic scale, to counteract pornographys
undermining of assurance. Some liberals will have reservations about these interventionist
implications. But I offer them a guarded welcome, and invite Waldron to join me.

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