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Crim Law and Philos

DOI 10.1007/s11572-014-9349-7

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’ Waldron’s 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

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 hate—we 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


166). uniformly. argues Waldron. and therefore for justice itself. be afraid!’ They send a message to would-be haters. these alone offer ample rewards to the reader. an attack on the dignity of individuals through their group membership. Maitra 2012. Hate speech legislation is necessary for assurance of justice. The result of his sense-making enterprise is an eloquent. of a kind tolerated by the US but often damned by its peers. 2009. which he takes to include the United Kingdom. don’t speak to them. and anti-Semitic signage of earlier eras. on a par with the racist graffiti. as I will suggest shortly. ‘What does it mean?’ Other signs express the same hatred: ‘They are all called Osama’ on an image of Muslim children. burning crosses. he says. This central argument has implications for topics much further afield. To call such speech the ‘expression’ of a ‘thought’ is missing their point. saying ‘you are not alone’. in a social environment polluted by these materials? (Waldron 2012. This recognition is a ‘public good’ that ‘accrues to individuals’. which should appeal to a wide readership. and thereby damages justice itself. The work hate speech does. saying ‘keep out.Crim Law and Philos fears dispelled. lies elsewhere. argues Waldron. Waldron’s most interesting and ground-breaking contribution. 9–10) Becoming in this modest way an individual target of hate might have reinforced Waldron’s choice of topic. Despite some troubling omissions. It has implications for varieties of speech that Waldron leaves aside. but because of the harms they enact: they are not just ideas. in the distinctive epistemological role he assigns to hate speech legislation. racist speech directed against ‘the groups who are denounced or bestialized’. for the purposes of this book: for hate speech conducted in private. Hate speech in the public social environment profoundly damages this assurance of justice. Kennedy 2002). MacKinnon 1987. but rather than assuming the law to have a US First Amendment face. but acts that play a crucial part in the creation of hierarchy and exclusion (Delgado 1993. Such signs are. ‘is largely performative’ (Waldron 2012. 123 . In recognizing this. Waldron locates public hate speech as a kind of group libel. They matter because of what they do: they send a message to the hated. Public social recognition of what is owed to citizens is part and parcel of basic dignity and social standing. and indeed (though I won’t go into this) for any speech that thwarts knowledge of what justice requires. 1993. ‘Muslims and 9/11! Don’t serve them. accessible and judicious study. Langton 1993. and don’t let them in!’ We are to imagine a Muslim family. ‘Jihad Central’ on the wall of a mosque. if not in conclusion: he aims to ‘make best sense of the law’. says Waldron. for pornography. however. to millions at a time. Waldron begins with a sign in a New Jersey street that says. The young daughter asks. 1993. Convinced that its attitude makes the US an outlier among contemporary democracies. Langton and Hornsby 1998. McGowan 2003. but his concern is with hate speech of a different order. Waldron takes up the challenge of mediating between the United States and democracies who attempt to combat racial hatred more seriously. 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. Waldron joins the voices of many who have argued that such signs matter. he considers its appearance in other ‘advanced democracies’. but in a way that is offered ‘en masse’. a father with two children. walking past. Canada and Australia. and that there persist profound misunderstandings about the point of hate speech law. His project follows Ronald Dworkin in method. He draws on John Rawls’s idea that a just and well-ordered society is one in which everyone accepts. not because of the thoughts they express. Matsuda et al. 2009. and everyone knows that everyone accepts. the principles of justice.

First. Given that hate speech is motivated by racial prejudice and promotes inequality.L Austin put it: for example. sometimes with a weight on the illocutionary or performative: ‘the harms emphasized in this book are often harms constituted by speech. spreading racial hatred. [also the] dissemination of ideas based on racial superiority or hatred. When it says to its targets. it is a certain sort of illocutionary speech act that. Dworkin is committed to a principle of equality—a principle of ‘equal concern and respect’. 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. which psychologizes the harm in hate speech as mere psychological discomfort. 2012. according to Dworkin. ‘You are not alone!’. Anderson et al. besides inciting hatred. inferior or animal-like. ‘Be afraid!’. But surely a more fundamental objection lurks in the wings. there are both causal and constitutive sides to hate speech. Such speech has in addition perlocutionary effects on its hearers. does more: perhaps accuses its targets of terrorism or conspiracy. there would be an ironic result: it would be a mistake to prosecute racial discrimination in the UK. ‘speech acts’. Waldron is careful to distinguish this from an ‘offence’ model. Langton 2012). as he puts it. which condemns racist propaganda— based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin. ‘perlocutionary’ effects.Crim Law and Philos This perspective chimes with the United Nations’ description of hate speech. We can build on this. on 123 . He shows convincingly how hard it is to take Dworkin seriously on this score. it is. And it has certain effects. and ‘promotes racial hatred and discrimination’—if we understand ‘promotes’ in a causal sense (cf. On the picture implicit here. in the context of a sort of theorizing which so often trades in abstractions. or a feeling of offence. When it says to other would-be haters. it normalizes and legitimates hatred and discrimination. I take him to be thinking of harms of both kinds. rather than merely caused by speech’. in Austin’s terms: it ‘disseminates ideas based on racial superiority’. since the UK’s anti-discrimination laws are spoiled by its hate speech laws. Harms of both kinds turn out to be central to Waldron’s positive arguments about group libel. but not in the US. and (so Waldron suggests) crushing the hopes of some for their lives and for their children. When hate speech ‘denounces’ or ‘bestializes’ certain people. He acknowledges his debt to Catharine MacKinnon. it warns and threatens them. In response to Dworkin. 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. and assurance. as J. a performative or ‘illocutionary’ speech act. The racist utterance constitutes a certain speech act. When Waldron speaks of the harms of hate speech. or ranks them as evil. as he puts it later (166). we can say something stronger: Dworkin is wrong even by his own lights. or which attempt to justify or promote racial hatred and discrimination in any form. ‘Keep out!’. Waldron’s literal-minded question is welcome. his critique of traditional liberal argument: Waldron questions Ronald Dworkin’s claim that the legitimacy of the state depends in part on its tolerance of hate speech. Austin 1962. in its 1965 Convention on the Elimination of All Forms of Racial Discrimination. dignity. If Dworkin were right. incitement to racial discrimination. would spoil the legitimacy of any anti-discrimination laws that they have. though. it ‘incites’ and ‘promotes’ racial discrimination and hatred—if we understand ‘promotes’ in an advocacy sense. who said. says Waldron.

the targets of hate speech would have rights against it (in Dworkin’s terms. to be laundered out of calculation by an egalitarian government. He devotes a chapter to Edwin Baker. against a very real loss in autonomy for their targets. since hate speakers would lack rights against it (in Dworkin’s terms. and second. But he appears to miss the implications for autonomy. Waldron plausibly argues that the options available to victims of hate speech are far more limited than Baker envisages. you should be worried about hate speech. We are weighing an illusory gain in autonomy for hate speakers.Crim Law and Philos the face of things. Far from being a matter of ‘autonomous selfdisclosure’. we will see how hate speech threatens autonomy. a champion of this approach. their gains in terms of autonomous self-disclosure may not trump all other harms. a ‘successful argument of principle’). a state aiming to promote equality could constrain hate speech. as for the speakers. Indeed. Hate speech is bad for everyone’s autonomy: the speakers. In response to Baker. any ill effects of hate speech are the hearer’s responsibility: even the denigrated target is free to respond in the defiant posture of a critic. we can say something stronger. could easily be adapted to defend hate speech legislation in just the way they have been adapted to defend pornography legislation (Langton 1990). So. all of which can be constrained by hate speech itself. After all. therefore (in Dworkin’s terms) illicitly ‘external’. but need to be weighed in the balance. and therefore the sort of thing citizens need rights to protect them from. Dworkin’s own combination of arguments against racial discrimination. the speaker gains in having the right to express his hateful thought. Again. where ‘freedom for the thought we hate’ is to be protected in the name of both speaker’s and hearer’s autonomy. If we follow Brison. Baker too is wrong even by his own lights. which in turn is given in part by the speech of those around us. a more fundamental objection surely lurks in the wings. and the spoken against. Our autonomy is constrained by the social meanings of the options we have. Brison is one of many who have urged us to rethink autonomy in social and relational terms. incompatible with a principle of equality. 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. This approach is sometimes aligned with autonomy-based defences of hate speech. Waldron wants to defend a liberal case against hate speech. we are not just weighing the civil standing and dignity of victims against the supposed self-revealing autonomy of hate speakers. or that 123 . first. if you care about autonomy. and what autonomous choices are available to you. And. a ‘successful argument of policy’). hate speech is a disaster. given the distinctive role of speech in ‘autonomous self-disclosure’. According to Baker. will depend on the conceptual resources and self-understandings available to you. By liberalism’s own lights—by the lights of equality and autonomy—it is the un-American democracies which turn out to be closer to the liberal ideal. Applying Dworkin’s arguments in this context. In evaluating hate speech. Turning now to Waldron’s positive arguments. Meanwhile. What is missing in Waldron’s reply to Baker is that. recall those paradigm cases of hate speech: speech acts that falsely accuse their targets of terrorism and conspiracy. but that case is all the stronger when we see how liberal values support it. Waldron also questions the doctrine of ‘mental mediation’. though. Preferences for uttering hate speech are prejudiced. Waldron is sometimes sensitive to this. and in favour of affirmative action. hate speech is bad for the autonomy of hate speakers and their targets alike. As Susan Brison has argued in her classic paper (Brison 1998). in autonomy’s own terms. what options are visible to you. I suggest some friendly amendments to Waldron’s critique of these liberal arguments. whereby speech is to be protected when any harmful effects are mediated through the minds of its hearers.

In exploring a ‘group libel’ approach to hate speech. is a contrast between description and evaluation. What Waldron is after. we come closer to Waldron’s central epistemological argument. Matsuda 1993.Crim Law and Philos rank people. but see. But I confess to doubts. from closer attention to speech acts and their role in social subordination.g. but even this would need elaboration. or knifecarriers. dignity demands ‘recognition respect’. carrier of knives and guns … If an utterance directed at an individual may be the object of criminal sanctions. perhaps.g. Or it might be degrading in still some other way: for example. It might express certain ‘opinions’. 2009. rapists. for example. Maitra 2012. or animals. if dignity is taken to involve respectful social ‘recognition’. MacKinnon 1987. which is owed universally and in all contexts. we cannot deny to a State power to punish the same utterance directed at a defined group. in virtue of their group membership. 87). that members of the group are terrorists. Waldron’s approach here could benefit. Waldron distinguishes three ways that hate speech might assault group dignity and reputation.g. not at the level of ‘recognition’. That the so-and-so’s groups are terrorists. (Quoted at 51) Waldron takes seriously the rationale behind Beauharnais. cannot bear much weight. Illinois. 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. Setting aside the large question of whether such recognition can be mandated. is in both cases a matter of ‘opinion’ and claimed ‘fact’. 1993. robber. it is not obvious what this adds to the taxonomy. as subhuman and animal-like. which commands respect from others and from the state. given the availability of ‘thick concepts’ and racial epithets. the ‘fact/opinion’ contrast. since factual claims and evaluative rankings could alike be ‘degrading’ to their targets. and in Beauharnais v. despite its controversial status in US law. But with the idea that these undermine the dignity and reputation of their targets. and—setting aside other approaches to hate speech.. as well as discriminating against them. which enable speakers to perform both speech acts at once. despite its popularity with journalists and school teachers. e. According to Waldron. or between assertion and verdictive ranking. it is surely open to at least racists to claim that their attacks are at the level of ‘appraisal’. unless we can say this is a willful and purposeless restriction unrelated to the peace and well-being of the State. Langton 1993. a ‘Whites Only’ sign degrades its targets. They may be false or mistaken moral ‘appraisals’. ‘Dignity’ is a concept with a checkered history (see Rosen 2012) that has attracted its share of debunking. for example. 2009. and differs from the sort of respect we show when we ‘appraise’ someone. For a start. McGowan 2003. or their virtues or vices. but Waldron unpacks it in terms of one’s fundamental status as a person and as a member of society in good standing. 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. which castigate members of racial groups for 123 . perhaps. that they are animals. e. 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. 2012). for the contingent social honours they have earned. as ‘fighting words’— he considers how one can regard these ‘reputational attacks’ as ‘assaults upon the dignity’ of their target. Such speech might make certain factual claims. as described in the work of critical race theorists and feminist political philosophers (many.. As for ‘degradingness’. as Stephen Darwall has called it (Darwall 1977). e. Speech acts like these can count as libel when directed at individuals.. in Darwall’s special sense. Waldron is eloquent on the harms to dignity that may result from hate speech. Delgado 1993.

Hate speech undermines the public good of assurance. robber. where basic principles of justice are respected. robbers and carriers of knives presumably maintain the former. rather than its hateful failure to recognize human personhood. by the hundreds or thousands of strangers they encounter or are exposed to in everyday life. 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. no unequal pay. The chief route to Waldron’s epistemological argument is. seriously. What this suggests is that one’s ‘fundamental status as a person’. Convicted rapists. he says. despite the absence of these discriminatory practices. the public look of a society is part of what conveys ‘a sense of security in enjoyment of fundamental rights’. To motivate his central point. Could such a society. But much hate speech. the basic principles of justice: so we do not have justice unless we know we have justice. which nevertheless leaves intact its target’s ‘fundamental status as a person’. The upshot is that Waldron needs to do more to show what is wrong with hate speech when it is merely hateful ‘appraisal’—if ‘merely’ is the right word to use. 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. such as (in Beauharnais). let us suppose. dealt with in the penal system. The point is simple. That. Waldron welcomes this implication. Waldron offers a thought experiment in ‘political aesthetics’. a well-ordered. Such behaviour is. a communal good created and employed collectively. at once more interesting and more convincing. but that they should be known to apply. Hate speech legislation may be required for what he calls assurance. and attempts to create a competing ideal. There may be banners and swastikas celebrating or excusing the genocidal campaigns of the past. pointing out that the state necessarily relies on the actions of individuals to comply with and enforce principles of 123 . for accusations of rape. are two very different things. and worse. but not the latter. conspiracy. and knows that everyone accepts. One implication of this is that more is required of ordinary citizens than liberalism usually assigns to us. no racial violence. negative ‘appraisal’-respect is compatible with positive ‘recognition’-respect. nevertheless have a racist appearance? Apparently yes—if 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 …. and one’s status as ‘a member of society in good standing’. Or one might ask. incompatible with a well-ordered and just society. is just what is presumed to be owed to genuine ‘rapists. no degrading racist treatment of individuals. The ‘look’ the social world offers to its members is a public manifestation of a shared commitment to justice. will not. carrier of knives and guns …’. after all. What is required for justice is not only that norms of justice should apply. (82) For Waldron.Crim Law and Philos their (perceived) vices. Let us suppose that there is no actual discrimination. He argues (with Rawls) that a well-ordered society is one in which everyone accepts. in my view. Some hate speech that ‘bestializes’ its targets by comparing them with animals may indeed be at odds with this more basic ‘recognition’-respect. perhaps most. Imagine. (66) One might welcome this as part of the ‘energizing diversity of a free marketplace of ideas’. for example. egalitarian society. whether appearances count. robbers and carriers of knives’. and hate speech undermines that knowledge. ‘being a rapist. Waldron regards assurance as a public good. On the approach Waldron favours.

racist speech. The reader is left to wonder. if not in school. but one answer offered by MacKinnon is this: Together with all its material supports. He draws in illuminating ways on MacKinnon’s work to show how speech can act in ways that attack individuals in virtue of their group membership. 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. authoritatively saying someone is inferior is largely how structures of status and differential treatment are demarcated and actualized. Waldron addresses the appearance. Words and images are how people are placed in hierarchies. What false comfort it would be to have hate speech legislation that fosters an illusion of assurance. and requires shared commitment as well as appearance of shared commitment. How does it do this? Waldron does not explore this in much detail. I will not question it further here. about how women are to be treated. around here.Crim Law and Philos non-discrimination. Many readers will have qualms about his optimism. an unsettling exception to an otherwise comforting message about racial equality. victimized. Not only does pornography present itself as undermining society’s assurance to women of equal respect and equal citizenship. knowledge of which is undermined by hate speech. how social stratification is made to seem inevitable and right. He presupposes a shared commitment to racial equality. whether the argument goes far enough—and I mean. though. How. If assurance is necessary for justice. in turn. does regulating the appearance or ‘look’ of public space supply assurance of justice? ‘Assurance’ is a success word. One implication of this. One place that Waldron acknowledges that the problem goes deeper is in his discussion of pornography and gender equality. Knowledge is a factive. on the streets and on the screen. They will need to take measures against a hateful appearance—and against a hateful reality. If the problem goes deeper. about the pornography case. And if shared commitment to principles of justice is absent—if racism is present—then protecting a nonracist look to public space would be a sham. by Waldron’s own lights. there remains a pressing question. Regulating the public look may be necessary for justice. Hate speech laws help provide assurance only if there is an egalitarian reality to assure. Waldron’s argument is framed against a background assumption that hate speech is an aberration. this time. and by an egalitarian majority. but private. but note that it is only with his rosy assumption that the proposal has plausibility. at odds with a hidden racist reality. but it does so effectively by intimating that this is how men are taught. to him. but not the reality. But what seems different. They will need to protect the environment from hateful signage. (91) He quotes MacKinnon: ‘through its consumption [pornography] further institutionalizes a subhuman. if we accept Waldron’s thought experiment. exactly. but the promotion of egalitarianism among citizens. we will have to do more than mend the public ‘look’. so it should come as no surprise that we face the same situation in this context. In considering this epistemological role for hate speech legislation. may well be the restriction of not just public. but it is far from sufficient. then democracies will need to do more. second-class status for women’. supported by the state. taken alone. That will mean not just the restriction of racist speech. The implication of Waldron’s argument about assurance is therefore more interventionist than he observes. how feelings of inferiority and 123 . and do what they can to get rid of racism. So knowledge of shared commitment to justice requires actual shared commitment to justice.

but that it can help to legitimate such behaviour. if we were take his advice. With pornography. in turn. If. pornography can blur lines in ways that undermine what Waldron calls ‘assurance’. and knowledge of that commitment. and how indifference to violence against those on the bottom is rationalized and normalized. the case is stronger still. If what is needed for justice is that everyone accepts. then pornography’s undermining of that knowledge becomes an urgent problem. and women’s voices are silenced. Women overwhelmingly do not report rape and harassment. the message of pornography is this is how men are taught to treat women around here. we would surely strengthen a certain feminist argument about pornography. and everyone knows that everyone accepts. It might demand massive state intervention to help banish those doubts and create knowledge of what justice requires with respect to the 123 . in part because of the absence of assurance: because of doubts about whether they are in the right. if hate speakers are. (1993. is how it can serve the pedagogical function Waldron describes. because it purports to be an expert on the subject matter of sex. this undermines knowledge of the treatment to which women are entitled. is not its social respectability. 1993).Crim Law and Philos superiority are engendered. These concerns about legitimation and silencing have a close relationship to Waldron’s concern about the public good of assurance. Unjust treatment is thereby legitimated. we have at the very least an appearance at odds with women’s ‘equal respect and equal citizenship’. it is clear that. If Waldron is right. or doubts about likely redress. Part of what makes pornographic speech authoritative. even if accompanied by an egalitarian reality. in some domains. Central to feminist debate about pornography has been a claim not only that pornography can help to cause sexual violence and harassment. 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. According to this feminist argument. but its perceived expertise: it can rank women in a certain way. But I can’t help wondering: what would be the implications for pornography? It appears that they would be radical. Waldron complains that debate about pornography has focused too narrowly on issues of harm as sexual violence. and knowledge of women’s civil standing. Leaving aside the relative importance of these different aspects of harm. A mere inegalitarian appearance to society. would be an affront to the ‘political aesthetics’ of a just and well-ordered society. and convincing. the principles of justice. If justice were to demand assurance. and help to silence women’s voices of refusal. That could apply to hate speech as well. as Waldron puts it. or doubts about their credibility. 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. 31) MacKinnon’s 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. this failure of assurance is in itself a failure of justice—quite apart from its possible involvement in the injustices of sexual violence and failure of redress. And when to this is added the real damage wrought by absence of assurance. and he recommends closer attention to this neglected epistemological dimension: pornography’s assault on knowledge of what justice requires. in MacKinnon’s sense. regarded as experts on the supposed threats posed by members of supposedly hostile and alien groups. And that. His argument for this conclusion is one of the most interesting. MacKinnon 1987. protest and testimony (Langton 1993. themes of the book. Recall again Waldron’s thought experiment. Pornography—as Waldron allows—attacks both of these: it attacks women’s civil standing. then it would demand far more than we have.

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