1

No Tolerance for Intolerant Speech: Justifying the Restriction of Hate Speech in America
Heather Stewart

“Democracy entails political equality, that all members of

the polity are included equally in the decision-making
process and have an equal opportunity to influence the
outcome” (Young 2000, 52).

The election of Donald J. Trump to the United States Presidency on November 8, 2016

has in many ways marked a significant turning point in American history and political life. One

shift in American life post-election is reflected in the sharp and sudden rise in hate related

incidents.1 A report released by the US Federal Bureau of Investigation in November 2017

reported that the year following Trump’s election marked the first year since the FBI started

tracking hate crime data that the number of reported hate crimes did not decrease. Observers note

that the rise in hate crime reported by the FBI in 2016 occurs alongside of an increase in political

conversations about racial animus and hate speech nationwide (Petulla et. al. 2017).2 Put bluntly,

there seems to be a glaringly obvious connection between racial intolerance or animosity, hateful

speech that seeks to express that intolerance or animosity, and hateful incidents or crimes, some

of which turn devastatingly violent, even deadly.

One such event that grabbed the attention of Americans and sparked heated debate about

the veracity of free speech claims occurred on August 11, 2017, when self-proclaimed white

1
What the Southern Poverty Law Center (SPLC) has deemed “The Trump Effect” was indeed
immediate: in a post-election study looking at harassment and intimidation in the 10 days
immediately following the election, the SPLC counted 867 hate incidents. This number rose to
1,094 hate incidents in only 34 days following the election (Potock 2017).
2
It is important to note that the so-called “Trump Effect” is not restricted to the United States
alone. Nadia Naffli reports a 600% increase in the amount of intolerant and hate speech social
media postings by Canadians over the course of one year. Some analysts have indeed blamed the
“Trump Effect,” but Naffli suggests that Canadian media outlets shouldn’t be “too smug” about
their adherence to practice of fair and balanced journalism, and the effect that this has on the rise
in hate speech postings in Canada (Naffli 2017).
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nationalists, neo-Nazis, and Ku Klux Klan members descended on the University of Virginia

campus bearing torches and shouting well-known Nazi chants to protest the removal of a statue

of Confederate general, Robert E. Lee (Spencer and Stolberg 2017). The rally, which centered on

the white nationalists’ hopes of “taking America back,” turned violent when the protestors

clashed with counter-protestors, culminating with a white nationalist protestor plowing a car into

a group of counter-protestors. The driver’s violent act left 19 injured and one, 32-year-old

Heather Heyer, dead (Heim et. al. 2017).

The events in Charlottesville put questions of hate speech and potential limits to free

speech at the center of passionate political dialogue. The intensity of these debates was

heightened by the initial decision of the American Civil Liberties Union (the ACLU) to defend

the free speech rights of the white supremacists who organized and participated in the rally,

despite the rally’s lethal outcomes (Reardon 2017). The ACLU’s logic in defending the rally

organizers and ultimately helping them sue the city of Charlottesville, was that in order to

ultimately protect equality (and equal free speech rights for all), the principle of freedom of

speech must be consistently applied. This is the only way to ultimately ensure equality for all, the

ACLU claimed. The problem with this sort of argument, as K-Sue Park (2017) aptly notes, is

that it “implies that the country is on a level playing field, that at some point it overcame its

history of discrimination to achieve a real democracy” (Park 2017). Such ahistorical and “color-

blind” approaches, while admirable in theory, have never secured equal freedom and safety for

all in practice. The fervent protection of the First Amendment does little to support the speech of

marginalized communities, whose power of expression is often “impoverished for reasons that

have little to do with the First Amendment,” but instead are the result of many cultural factors

that “chill their voices but amplify others” (Park 2017). And furthermore, while the unwavering
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(and perhaps uncritical) support of the First Amendment’s right to freedom of speech seems

unable to actually secure the free and equal speech of marginalized populations, it may also have

the opposite of this intended effect, viz., it may actually compound the factors that already make

it difficult for marginalized groups to speak on free and equal terms. To this effect, Park (2017)

raises the question: “Could prioritizing First Amendment rights make the distribution of power in

this country even more unequal and further silence the communities most burdened by histories

of censorship?” If this question can be answered in the affirmative (as Park is suggesting it can

be), then those committed to the First Amendment right of freedom of speech for all should be

interested in the boundaries of that right, which if enacted will actually ensure the widest right to

speak freely. The ACLU and other organizations concerned with freedom and equality, must

then take seriously the spirit of the law—those values it is taken to enshrine—and not simply the

letter of it (Reardon 2017).

In what follows I want to suggest that those committed to the principle of free and equal

speech ought to be willing to endorse limits on that freedom, in the service of protecting the

principle itself. The paper will proceed as follows. In section I, I will introduce what has been

called the “paradox of tolerance,” and draw out its significance for free speech debates. In

section II, I will attempt to make sense of the value of freedom of speech—why we are so

committed to its protection, and thus why we ought to be concerned with protecting it uniformly

for all. In section III, I argue that the unrestricted proliferation of hate speech is counter to the

values and goals promoted by a commitment to the freedom of speech, and that hate speech

thereby ought to be restricted in the service of free speech values. In section IV, I consider the

unique difficulties facing legal restrictions on hate speech within the US context. Finally, in

section V, I argue that despite these challenges, legally restricting hate speech in the United
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States is still justifiable, and such legal restrictions ought to be pursued. My conclusions circle

back to the paradox introduced in section I, and I ultimately argue that to promote a tolerant

society, intolerant speech cannot be tolerated.

I. The Paradox of Tolerance

Twentieth-century philosopher of science Karl Popper famously identified what he called a

“Paradox of Tolerance” in his 1945 The Open Society and Its Enemies. The paradox stipulates

that if a society is tolerant without limits, its ability to be tolerant will ultimately be appropriated

or otherwise destroyed by the intolerant. Popper thus concluded, albeit somewhat paradoxically,

that in order to maintain a tolerant society, that society mustn’t tolerate intolerance. Popper’s

paradox—and his solution to it—are relevant to questions regarding limits to the freedom of

speech. Popper believed that unrestrained freedom of speech and extending that freedom to those

who would use it to eliminate the very principle is paradoxical.3

Michel Rosenfeld (1987) thus argues that it is “contradictory to extend the freedom of speech

to extremists who advocate the destruction of democratic institutions and who would, if

successful, ruthlessly suppress the speech of those with whom they disagree” (Rosenfeld 1987,

1457). He notes that the constitutions of many Western European democracies, as well as the

United Nation’s Universal Declaration of Human Rights all take seriously the insight raised by

the paradox of tolerance, and subsequently heed Popper’s warning. As such, many of these

nations do not afford free speech protections to extremist speech. In such nations, the speech of

racists, Fascists, and Nazis have been successfully outlawed. Rosenfeld notes, however, that no

3
Popper’s articulation of the paradox has historical underpinnings. Samuel LaSelva (2015)
identifies a similar point in John Locke’s A Letter Concerning Toleration. While Locke does not
suggest that there was a “paradox” of tolerance per se, he did argue that those who refused to
teach toleration had no right to be tolerated by the magistrate (LaSelva 2015, 715). This is very
similar to Popper’s conclusion that we ought not to tolerate the intolerant.
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such restrictions on extremist speech exist in the United States—a direct result of the US’

commitment to the First Amendment’s protection of free speech, which has been interpreted by

the Supreme Court to include extremist speech. The US, with its “wild west” approach to free

speech doctrine, thus remains an outlier among Western democracies in its toleration of the

speech of those who “avowedly seek freedom of speech in the pursuit of its destruction”

(Rosenfeld 1987, 1457; Saunders 2017, 73). This distinctly American commitment to protecting

free speech at all cost is evidenced by the ACLU’s controversial defense of the white nationalists

in Charlottesville, whose “right to free political expression” ultimately turned deadly. Herein lies

the paradox: does being a tolerant nation require tolerating all groups’ political speech,

regardless of its content and the historical legacies tied to the content? With Popper, I argue that

not only is this “neutral” toleration for all unwarranted, it is also damaging—morally and

politically. As such, we must rethink the commitment to widespread, uniform tolerance for all

(and subsequently the equal protection of all speech), and instead consider the boundaries of our

nation’s tolerance for hate-speaking groups and the hateful words they spew.

II. Why Value Free Speech?

Defending legal restrictions on hate speech requires first reconciling those restrictions with

the values implicit in commitments to freedom of speech and expression. So, why is the freedom

of expression so highly regarded in democratic society? Some argue that the main reason we

ought to value free speech is because it is indispensable to citizens playing their part within an

organized system of democratic self-government. On this view, free speech is of special

importance precisely because it is a collective (as opposed to an individualistic value). Free

speech allows participants in a democratic society the information they need in order to

contribute to the collective process of decision making on issues of public concern. When the
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law restricts the information needed in order to participate in this way, that restriction is taken to

be prima facie unwarranted, since it undermines peoples’ abilities to participate in the collective

project of democracy (Brown 2015, 187-188).4 Without the ability to receive the political views

of others and deliberate them, “he or she would be simply incapable of casting an intelligent

vote,” thereby degrading the wellbeing of the democracy (Saunders 2017, 1).

L.W Sumner (2014) explains the value of free expression by drawing on a Millian

framework. Mill held that mankind would be improved from free and equal discussion, and that

in order to justify restricting this free expression, one would have to show that the liberty of free

expression produces harm, or otherwise threatens the rights of others (Sumner 2014, 22-28).

More precisely, free expression is valuable (i.e., produces benefit), and thus can only be

justifiably restricted when the harms it produces outweigh those benefits. Sumner thus develops

(drawing closely on Mill) the following two-step test for the appropriateness of encroaching on

free speech: (1) The Harm Principle: the expression in question must cause harm to others, and

(2) The Consequentialist Principle: interference with the expression must yield a better balance

of benefits over costs than non-interference (Sumner 2014, 33).

It is important to note that this approach to free speech is inherently collective. Freedom of

speech is justified, on a Millian account, as a result of its essential role in helping societies arrive

4
While this is taken to be the core value of free speech, Brown (2015) notes two major
stumbling blocks for this picture. First, he notes that even in a representative democracy in which
each citizen enjoys an equal right to vote, it would be delusional to imagine that everybody
enjoys the same access to and influence over the formal decision-making process. Given such
conditions, he argues, “an argument that claims that hate speakers should be granted the right to
say whatever they please for the sake of the collective value of democratic self-government
might seem bitterly ironic to the point of ludicrousness”). Second, if democracy is about living
for the rules that we set for ourselves, then this ought to apply to rules governing speech, as it
does other areas of law and policy. In other words, what is stopping citizens from voluntarily
choosing to impose hate speech laws on themselves, through a democratic process (Brown 2015,
189)?
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at the truth together (Seglow 2016, 1110). For these reasons, it seems legitimate to ask if such

unrestrained freedom of speech is ultimately damaging to the collective enterprise of seeking the

truth, and if so, what types of speech in particular are damaging to this free speech goal?5 In the

next section, I argue that hate speech is one such subset of speech which is ultimately damaging

to the collective project of seeking the truth, insofar as hate speech damages the capacity of some

to speak and be taken seriously, viz., to have their ideas introduced and deliberated upon in

democratic processes.

III. How Hate Speech Undermines the Values of Free Speech

In order to offer a defense of hate speech regulation in the United States, I must first attempt

to say something about what hate speech is and why we ought to care about it. One difficulty

plaguing philosophical accounts of hate speech regulation is that they often provide strong

defenses or critiques of regulation, without first laying the conceptual groundwork necessary to

know what it is that needs to be regulated or protected, viz., what hate speech itself is. This has

paved the way for some of the easiest objections against some of the strongest defenses of hate

speech regulation. For example, Jeremy Waldron (2012) offers a compelling and widely

discussed defense of restrictions on hate speech, but two of his main critics (Leiter 2012, Stevens

2012) locate a serious weakness of his work in his lack of clarity around what counts as hate

speech. Leiter is concerned that Waldron has not adequately distinguished hate speech from mere

offense; Stevens is concerned with the difficulty of adjudicating borderline cases.

5
Cass Sunstein asks this question in his 1993 book, Democracy and the Problem of Free Speech
(xi). He argues that free speech law has lost sight of the aspirations of the First Amendment, and
uncontrolled “free speech” is sometimes used in effort to undermine democracy (93). Given this,
Sunstein argues that there is nothing obvious about the idea that the First Amendment should ban
laws prohibiting racial hate speech (186) and offers some potential changes to free speech law
(251-252).
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The inability to offer a clear and concise definition of hate speech is not Waldron’s problem

alone. Alexander Brown (2017) has argued that almost all philosophers and legal scholars who

have argued for or against legal restrictions on hate speech have done so without doing the prior

work of conceptually analyzing the term (Brown 2017, 561). Brown ultimately argues that the

reason for this is that the concept itself is elusive—it does not lend itself to tidy conceptual

analysis. “Hate speech,” Brown argues, is non-compositional term: its meaning is not a function

of the literal meaning of its parts, and the meaning of the whole concept cannot be understood by

looking at the literal meanings of its component parts, namely “hate” and “speech” (Brown 2017,

562). This leads Brown to suggest that “hate speech” is equivocal and denotes a family of

meanings for which there is no single, overarching, precise definition.6 “Hate speech” has

acquired multiple meanings over time—not just multiple, differing instances of how it is used,

but actually new meanings (Brown 2015, 564). Hate speech is thus a family-resemblance term, a

term which Ludwig Wittgenstein coined to make sends of how concepts like “game” can be used

competently, despite their lack of necessary and jointly sufficient conditions for correct usage

(Brown 2017, 593). Instead of looking for a singular precise definition of the term, we instead

seek to understand it by looking at sets of overlapping similarities that connect otherwise

disparate instances of the concept, and aim to understand what connects them all to one concept

6
Brown (2017) doesn’t actually make the jump straight from failed decompositional conceptual
analysis to arguing that hate speech is a family resemblance term. Rather, he first attempts to
analyze the term using other methods of conceptual analysis: i.) purpose-oriented analysis, which
reflects on the purposive benefits that usage of the term regularly brings (567-573); ii.) folk
platitudes analysis, which examines folk understandings and usages of the term (574-581); iii.)
intuitions about cases analysis, which draws upon the intuitions about meaning generated from
competent users of the term (581-589); and iv.) ordinary language analysis, which analysis
speech act theory or what people do with the words not simply what they say (590-593). Brown
argues that each method of conceptual analysis pushes us towards the recognition of a family of
meanings, allowing him then to justifiably conclude that the term is indeed a resemblance term
without a singular meaning, definable through necessary and sufficient conditions.
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or idea. Brown thinks this is a particularly helpful way of thinking about the concept of hate

speech, since recognizing that there is not a single, narrow definition can allow more things to be

recognized as hate speech that would not traditionally count (i.e., things that are not exactly like

racists insults, but might share some similar features or characteristics) (Brown 2017, 604).7 We

identify hate speech, then, my looking to shared features, whether those involve content, usage,

intention, and social/historical contexts.8

Another helpful way of making sense of what hate speech is involves examining the harms

that result. I take the best articulation of the moral wrong of hate speech currently on offer to be

found in the work of Jeremy Waldron (2012). Alexander Brown (2015) has argued convincingly

that the uniquely helpful contribution of Waldron’s analysis comes in his explication of the role

of assurance: Waldron claims that hate speech law does more than protect vulnerable minority

groups from group libel and related denials of public dignity, but rather it also helps secure for

those vulnerable minorities an important public good, namely the assurance of civic dignity

7
It is important to note here that while I mainly refer to racist hate speech in this paper, I do not
mean to limit my arguments to that application alone. Thinking of “hate speech” as a family
resemblance term helps to broaden the scope of hate speech to consider historically and
structurally oppressed groups more generally. I opened the paper with an example that primarily
focused on racial animosity stemming from the increased visibility of white nationalists in the
aftermath of the 2016 US-Presidential election, but it would be misguided to assume that there
have not been other, related rises in hateful speech. For example, Kyle Fitzpatrick (2017) has
analyzed a “B*tch Map” to see when, where, and why folks’ are deploying the term “B*tch”
online, and finds that the word appears with greater frequency online than “the N-word” or
“queer.” It would also be too quick to assume that all of this hateful speech, though having
seemingly different targets, is not all connected. Fitzpatrick writes, “the issue hits a gross
intersection: using the word “b*tch” online connects with language associated with the alt-Right,
a hate group known for its virulent racism and distinctly anti-woman ideology.
8
Regarding hate speech as a family resemblance term also helps us to go beyond speech qua
verbal utterances, to a wider understanding of what counts as speech. This might include fliers or
spray painting of the sort Waldron (2012) describes, or (increasingly) hate speech that is typed
out online, on social media platforms, news outlets, etc. (see Banks 2010; Foxman and Wolf
2013; Guiora et. al. 2017).
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(Brown 2015, 148). For Waldron, this assurance is a “pervasive, diffuse, ubiquitous, general,

sustained, and reliable underpinning of people’s basic dignity and social standing, provided by

all for all” (Waldron quoted in Brown 2015). The beneficiaries of hate speech law, Waldron

contends, are being assured that they are worthy of high and equal sociolegal status; that they are

members of society in good standing; that because they are members of society in good standing,

they enjoy fundamental rights; that their high and equal sociolegal status will translate into

entitlements and just treatment; and finally, that their fundamental rights include not being

subjected to group libel (Waldron quoted in Brown 2015, 148-9). Hate speech, Waldron argues,

undermines the relative availability of these assurances for the target groups. It functions to deny

the public good of these assurances to some, while simultaneously seeking to construct a rival

public good, namely, a society where certain groups are not viewed as full members in good

standing (Waldron 2012). The harm, then, is to the assurance of civic dignity—an essential

aspect of one’s ability to live and participate in democratic society with the security of being

treated as a full member in good standing. Such damage to the assurance of justice is profound,

insofar as it represents a damage to justice itself (Langton 2016, 866).

While I find Waldron’s account convincing, other scholars have argued that Waldron’s

attempt to identify the harms of hate speech is ultimately unsuccessful (see for example Simpson

2013). As such, scholars who are interested in defending the sorts of restrictions on hate speech

that Waldron defends have offered alternative explications of the possible harms of hate speech,

which they see as having the potential to ground hate speech regulations. L.W Sumner, for

instance, divides the harms of hate speech into direct harms and indirect harms. Direct harms

might include things such as physiological symptoms and emotional distress ranging from fear,

nightmares, PTSD, hypertension, and even suicide. Other direct harms might include restrictions
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on target’s sense of personal freedom as a result of harassment or intimidation. This might

include quitting jobs, forgoing education, leaving their homes, avoiding certain public places,

and so on. Finally, direct harms might include harms to the target’s self-esteem or sense of

security. Indirect harms, on the other hand, are more systemic and pervasive, affecting the

attitudes of folks in the larger political environment. This can affect the broader social perception

of targeted minorities, and ultimately the concrete treatment of those minorities in the social

sphere (Sumner 2014, 159-160). The moral significance of the indirect harm of hate speech is

that it degrades the target group to the subhuman level—it constructs the target group as a lower

order than the speaker (Saunders 2011, 122, 196).

Jonathan Seglow develops a sustained account of a potential harm resulting from hate

speech, namely that hate speech represents an assault to the target’s self-respect (Seglow 2016,

1103). Seglow takes this harm to be sufficient to justify the regulation of hate speech, whereas he

does not think Waldron’s status-based account can independently justify such restrictions

(Seglow 2016, 1107-1109).

Taken together, the various direct and indirect harms of hate speech represent a vast array of

possible harms that go beyond, and potentially operate in concert with, those identified by

Waldron. Whatever account of the harms of hate speech that we take to be the most convincing

to ground hate speech regulation, at minimum it seems clear that hate speech cannot possibly

overcome Mill’s “harm test,” and thus there is at least prima facie reason to consider restricting

such speech in the United States on behalf of one or more of these possible harms.

IV. The Challenge of Restricting Hate Speech in America

“Congress shall make no law… abridging the freedom of speech” states the First

Amendment of the United States Bill of Rights. This seemingly absolutist injunction has led the
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US Supreme Court to evolve a doctrine which offers the most stringent of protection to speech

deemed “political.” Where political speech is concerned, the Court has permitted restrictions of

“time, manner, and circumstance,” if there is some identifiable purpose for the restriction other

than restricting the circulation of the ideas being expressed, but the court has outlawed

restrictions on content (Sumner 2014, 71). The Court has thus endorsed a commitment to

“viewpoint neutrality,” which makes the regulation of hate speech a particularly difficult task.

But are there reasons to justify overturning this commitment to viewpoint “neutrality”?

Lewis Gordon (2017) points to the historical injustices and asymmetries at work, which

complicate the facially-neutral commitment to the freedom of speech. He suggests that it is naïve

to frame circumstances such as those which occurred in Charlottesville as the product of mere

“racial tensions,” because to do so “implies that there are two people equally facing off each

other with a form of intensity that could be resolved if they could simply hug or kiss each other”

(Gordon 2017). Furthermore, it “presumes a variety of individualistic notions that hide the

politics and the institutions of power that cultivate inequalities.” To falsely assume that each side

is on an equal playing field with respect to their ability to freely voice their discontents ignores

both the history of racism and the present reality of racism. Lynn Mills Eckert (2010) gives a

similar critique of content and viewpoint neutrality in modern free speech doctrine, arguing that

the norm of “viewpoint neutrality” resulting from the Supreme Court’s Ruling in Brandenburg v.

Ohio (1969) has led to an approach to free speech that is acontextual and ahistorical, and which

fails to take seriously analytical concerns about oppression, inequality, and power (Eckert 2010,

265). In the ruling, the Court equated the racially discriminatory speech of the Ku Klux Klan

with dissident Communist speech, without adequate examination of the historical and structural

contexts surround racial animosity and subsequent hateful speech. The resulting decision, and
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those which followed it, while purportedly “objective” and “neutral,” are non-neutral in practice,

especially when considered from the perspective of oppressed target groups (Eckert 2010, 266).

Eckert argues that it is in fact possible to make a distinction between hate speech (which

tracks historical and structural inequalities and injustices and reflects hatred towards a specific

group) and dissident political speech (which voices concerns about the current governing order

and calls for political change). Free speech doctrine has, however, conflated genuinely

subversive political speech which aims to challenge the status quo with hate speech, which seeks

to reinforce histories of unequal power and oppression (Eckert 2010, 267). “The Court ought not

to confuse the speech of minorities seeking political change with hate speech. The speech of

Martin Luther King Jr. constitutes dissident speech which is ‘directed at the powerful institutions

that govern our lives.’ Hate speech targets the ‘least powerful segments’ of our political

community” (Eckert 2010, 272). Such a conflation suggests that we have no criteria for

distinguishing injurious speech from other kinds of speech, and as a result we find ourselves, like

the ACLU ardently protecting all speech—even that which is connected to and seeks to reinforce

histories of oppression and domination.

The attention to historical and structural context advocated by Gordon and Eckert helps

alleviate the concern that regulating hate speech will ultimately allow those in power to

arbitrarily determine what counts as hate speech, and which speech to regulate under hate speech

legislation. For instance, it shows why the suggestion that saying “Black Lives Matter“ is a form

of hate speech9 that targets white folks is misguided, insofar as it fails to take seriously historical

and structural realities of racial oppression, domination, inequality, and power in the United

9
See, for instance, Phillips 2017 and O’Connor 2017 for examples of the political right claiming
that the group, Black Lives Matter, is a hate group with “radical ideas” comparable to neo-Nazis
and the Ku Klux Klan.
 14

States, which have maintained the power and privilege of white folks at the expense of people of

color. It is not, and cannot be, at the political whim of whoever so happens to be in control to

determine what counts as hate speech, since whoever is in current political control cannot re-

write legacies of racial oppression or single-handedly overturn current and deeply entrenched

systems of power. And of course, the possibility that we will deliver extremists into elite

positions who could potentially abuse hate speech law is not a problem unique to hate speech

legislation, and we surely don’t want to extend this line of argument to invalidate any law that

has the potential to be abused when entrusted to the wrong hands (Brown 2015, 202).

Another worry about the United States’ insistence on restricting form and not content is that

some speech which should rightfully be categorized as hate speech does not get counted, since it

does not (at least not obviously) reflect intention to incite violence. So, hate-speakers can couch

their hate propaganda in forms that appear academic, political, or otherwise professional, and it

is then considered protected speech (Sorial 2014, 299). This is a troubling outcome since

“obvious” cases of hate speech (i.e., where there is a clear intent to incite violence) is not

indicative of all instances of hate speech. Hate-speakers might simply be getting better at

couching the same tired, hateful ideas in new “civil” or “respectable” lights. This now-protected

speech, with its intentional framing, allows these ideas to be taken up more broadly, and

ultimately normalized in society, since they are framed using academic discourses, which gives

them wider appeal and credibility (Sorial 2014, 301, 306). This is yet another reason that the

commitment to protecting “viewpoint” neutrality appears misguided—dangerous, hateful

viewpoints can fly under the radar when carefully packaged as academic or political speech.
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Attention to historical and current structural inequalities and unequal relations of power

creates worries for the Millian “marketplace of ideas” line of defense of free speech.10 The idea,

which can be traced back to John Stuart Mill, is that freedom of expression is ultimately valuable

for its social benefits. In a properly functioning marketplace of ideas, the truth will supposedly

rise to the top-- we are supposed to take comfort in knowing that untrue ideas will be

extinguished, and while they persist, their expression in the marketplace helps sharpen our

arguments against them and allows us to better understand the truth (Miller 2017). But the

“marketplace metaphor” is subject to the same critiques as free markets more generally. Free

markets sometimes malfunction, creating what economists call “dislocations.” The “free

marketplace of ideas” is susceptible to similar distortions. Racism, sexism, and other ideologies

of hate “frequently affect the ability of the speaker’s ideas to compete; prejudice consciously or

unconsciously devalues ideas because they come from a member of a discredited group (women,

African-Americans, gays and lesbians, etc.).11 Racism or sexism can also affect the speaker’s

ability to speak” as a result of internalizing racist, sexist, or homophobic sentiments pervasive in

society and spread through hate speech (Eckert 2010, 273).12 As a result, some viewpoints are

always already on unequal footing in the marketplace, or never make it to the marketplace at all.

10
I refer here to the philosopher John Stuart Mill (1806-1873), who defends the liberty of speech
in his work On Liberty (1869). See also section II above for Sumner (2014)’s articulation of
Mill’s framework as presented in On Liberty.
11
Social epistemologist Miranda Fricker has explored how this works in detail in her 2007 book,
Epistemic Injustice: Power and the Ethics of Knowing. There (and in other places), Fricker
describes how prejudicial stereotypes which are pervasive in the shared social imagination can
influence our ability to accurately assess the credibility of others. Historically marginalized
groups are often subjected to unjust deflations of their credibility, and thus their testimony is not
taken as seriously as it ought to be. Fricker calls this “testimonial injustice.”
12
Black feminist epistemologist Kristie Dotson (2011) has developed this idea, which she has
described as “testimonial smothering,” where a member of an oppressed group engages in self-
silencing as a result of internalized oppression.
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Furthermore, Parekh (2016) argues that even if the marketplace could be made genuinely

neutral and equally accessible to all bodies and ideas, it would still be naïve to assume that false

ideas will always lose out to true ones. Ideas do not operate in a “social vacuum,” but rather are

always bound up with interests, the prevailing structures of power, histories, and so on (Parekh

2016, 934). Recent political happenings in the United States seem to bear both of these ideas out:

there is already unequal access to the marketplace of ideas, and countless biases and distortions

within its operation, and even where opposing ideals do have seemingly equal access to the

marketplace of ideas, they do not appear to be displacing untrue and damaging ideologies from

circulation.

Dale Miller (2017) expresses such a concern about Mill’s “marketplace of ideas” with

respect to the false moral doctrine of white supremacy. “White supremacy,” Miller writes,

“should be well on its way to being extinguished.” But, if Mill were alive today, Miller suggests

that we would be justified in asking him, “How is that working out for you?” White supremacists

in the United States today “clearly believe that they have a fellow traveler in the White House

(and if they are wrong then President Trump has hardly laboured to disabuse them of the notion).

With this ‘high cover’ they are bolder and more brazen then they have been in decades… Any

consoling fantasies that we might have had about how their positions were moving toward being

extinguished have been punctured.” Given this, Miller argues that it makes sense to be concerned

about Mill’s contention that we ought to safely trust the marketplace of ideas where extremist

views are concerned. He quotes David Shih, who argues that “The ‘marketplace of ideas’ fails

when we cannot make objective choices about racism.” When racism is so pervasive in the

worldview of Americans that they frequently fail to even recognize it, the result is that they

cannot be relied upon to “reliably reject a shoddy product—here, the snake oil of racist
 17

expression” (Shih quoted in Miller 2017). If many Americans, clouded by socially embedded

racism, are unable to successfully identify “bad products,” it might mean that racist hate speech

is not a “necessary evil that jumpstarts racial justice within a liberal marketplace but is—for the

foreseeable future—nothing more than state-sanctioned injury of people of color” (Miller 2017).

A concept of free speech that permits assaultive racist language into the marketplace of ideas,

and even eloquently defends it (as the ACLU has done), misses the foundational purpose of free

speech in a democracy. “It allows the marketplace a form of expression that corrodes the

invisible hand upon which the market depends, namely, reason” (Eckert 2010, 274). On the other

hand, taking legal action against hate speech can call attention not only to the individual

perpetrator but also to the structures of oppression that give the perpetrator’s speech its injurious

force” (Schwartzman 2002, 433).

V. Justifying the Restriction of Hate Speech in America: Toleration with Limits

Recall the two-step process described above, articulated by Sumner (2014) in the spirit of

Mill. Having argued that United States law and jurisprudence tends to follow a broadly-Millian

framework, Sumner argues that in order to justify restricting hate speech in America, one would

have to be able to show that hate speech (1) causes harm, and (2) that interfering is ultimately

more beneficial than non-interference (Sumner 2014, 33, 69). In the case of hate speech, Sumner

believes that restrictive legislation likely passes the harm test for various reasons identified in

section III above. However, given the two-step justificatory process, it does not automatically

follow that restricting hate speech is justified—the restrictions must still pass (2) The

Consequentialist Principle. On the grounds of this two-step process, which Sumner argues the

US legal system is at least in practice committed to, the United States cannot legitimately impose

legal restrictions on hate speech, since it cannot objectively show that doing so would produce
 18

more benefit overall (Sumner 2014, 200). This is an unfortunate outcome (and likely the wrong

one), if we take seriously the vast array of potential harms that result from hate speech, as well as

the broader threats it poses to our very democracy. In this concluding section, I suggest, contra

Sumner, that hate speech regulation is morally justifiable and likely practically implementable.

We thus ought not to tolerate hate speech, insofar as we value the preservation of our democracy.

Alexander Brown (2015) has argued against the conventional wisdom that says that because

the right to freedom of expression is indispensable to democratic self-government, political

legitimacy, and political obligation, that no hate speech restrictions can be tolerated within

spheres of public discourse. To the contrary, Brown argues that some hate speech restrictions are

warranted not in spite of distinctively political principles and values, but because of what these

things demand of constitutional essentials and the fundamentals of justice (Brown 2015, 187).

More precisely, Brown argues that freedom of expression, and some hate speech law, are at their

most democratic, legitimate, and supportive of political obligation when they manage to do each

of the following: guarantee that all citizens enjoy genuine opportunities to participate in public

discourse, realize a form of political legitimacy that is based on the goal of reasonable

agreement, and ground political obligation in a fair distribution of benefits and burdens.

What minority populations in the United States need is not the abstract right to engage in the

collective process of democratic decision-making, aided by the free and open marketplace of

ideas. What they need is real opportunities to participate in the formation of public opinion, and

the prevention of speech or actions which would undermine the access to those opportunities

(Brown 2015, 194). The vast proliferation of hate speech in the public sphere can “seriously

curtail the operation of political processes by preventing minorities from participating normally

or as other citizens do in the formation of democratic public opinion, and any such mutilation of
 19

public debate is pathological for democracy” (Brown 2015, 198). More specifically, hate speech

can have a silencing effect (Langton 2012) which can deter or inhibit members of targeted

minorities from being able to speak up about political matters, or otherwise participate in

democracy. Or, if hate speech reinforces prejudicial stereotypes, it can reinforce a political

environment where members of certain target groups are always already taken to be less

credible, and thereby less likely to be taken seriously in the ways necessary to conceretely

influence political opinion (Fricker 2007).

Despite the technical challenges of restricting hate speech in a US-specific context, doing so

is nonetheless morally justifiable. We must ask, then, how to do so practically speaking. Alex

Brown (2015) argues that many of our current laws and policies could accommodate the

incorporation of hate speech restrictions. If so, getting hate speech restrictions on the books

would not be so difficult of a challenge—rather, it would be a matter of extending currently

existing laws, codes, and policies to cover this new area, or showing how they already do cover

this sort of speech. Brown suggests that instead of making the broad category of “hate speech”

illegal and trying to restrict it as such, it would instead be more pragmatic to break hate speech

down into different clusters, which can then be subsumed under: 1) group defamation laws, 2)

laws, regulations, and codes that restrict negative stereotyping and stigmatization, and 3) laws,

regulations, and codes that restrict the expression of hatred towards groups or classes (Brown

2015, 19-24). He thinks some instances of hate speech can be captured under each of these, and

that categorizing them in these ways will avoid at least some of the negative pushback (though,

he believes that the third category is most likely to be objected to on First Amendment grounds).

I do not propose to offer a precise method for going about getting hate speech regulations on the

books, but instead hope to have provided some of the justificatory groundwork for doing so. I
 20

find Brown’s proposal to be a priori plausible, though more direct approaches might also be

worth pursuing, namely direct laws or codes prohibiting hate speech itself, without taking the

indirect routes Brown describes. Which approach would be the most effective while generating

the least political opposition is an empirical question, so I find no reason to discount either

approach pre-emptively. However, I do contend that we must find a way to implement legal

restrictions into US law, whether that approach is direct, or indirect in the way Brown suggests.

In this paper, I have argued that a tolerant and well-functioning democratic society needs

limits on its own toleration. More precisely, democratic nations need to be intolerant of hate

speech, insofar as hate speech has the ability to pollute the political environment, undermine the

public good of assurances of civic dignity owed to all members, and ultimately undermine the

reasons we have for valuing free speech in the first place. If the goal of free speech is to ensure

fair and equal democratic participation, where folks have all relevant information available to

them, then hate speech undermines this goal insofar as it adds further difficulty to marginalized

groups’ abilities to speak and be heard and taken seriously. Hate speech reinforces power

dynamics rooted in social inequality, and thus offers a challenge to a democratic society

committed to equality for all citizens. Despite the difficult challenge that introducing hate speech

law is in America, given the commitment to a sweeping interpretation of the First Amendment’s

freedom of expression, I have argued that 1) hate speech law in the United States is nonetheless

possible, practically speaking, and 2) hate speech law in the United States is not only morally

justifiable, it is likely necessary to the continuation of our democracy, and its ability to flourish

moving forward. In the words of Kevin Saunders, hate speech simply lacks “the relevance to the

values justifying free expression to merit protection in light of the harm that it does” (Saunders

2017, 94). America thus has no justifiable reason to tolerate continued hate speech.
 21

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