The free speech versus hate speech debate

Seumas Miller, Charles Sturt University

Katharine Gelber Speaking Back: The Free Speech versus Hate Speech Debate, John Benjamins Publishing, 2002 (176 pp). ISBN 9-0272-269-1 (hard cover) RRP $144.95.

Free speech is a fundamental human right, an intrinsic good, and a cornerstone of liberal democracies. As a human right it ‘trumps’ mere individual or collective interests; the fact that speech might harm someone or some group’s interests is not of itself sufficient to justify restrictions on it. And since it is an intrinsic good its worth is not fully accounted for in terms of other goods that might be dependent on it, for example, knowledge or quality of life. Further, freedom of speech, and (relatedly) freedom of the press, are necessary conditions for a functioning democracy.

On the other hand, complete freedom of speech to say anything one wants to anyone and under all circumstances is not a morally sustainable option; the right to freedom of speech is not an absolute moral right, and nor is its intrinsic value an absolute value. For example, and as John Stuart Mill famously pointed out, a person does not have a moral right to shout ‘Fire!’ in a crowded hall, if that would lead to panic and thereby to serious injury or even loss of life.

Because freedom of speech is a basic human right, and an intrinsic good, there is a strong presumption against restricting it. That presumption can be overridden, but only in specific cases, for example, the public communication of false claims that seriously undermine another person’s reputation.

In Speaking Back Katharine Gelber contributes to the free speech versus hate speech debate, especially in relation to public policy in the state of New South Wales in Australia.

Where does hate speech fit into debate about free speech? Complete freedom of speech would enable a person or group to vilify another person or group. Complete freedom of speech would permit a person to produce the following utterances: ‘You black slut’, ‘You’re nothing but a coon’, ‘I’ve shot worse coons than you’ (Gelber, p. 69). But people should not have to put up with hate speech of this kind. So some restrictions on hate speech are in order.

However, at this point a problem arises about the demarcation of hate speech. For it seems that some forms of what might be regarded as hate speech should not be made unlawful, because such restrictions would unacceptably infringe the right to free speech. Consider a person who phones a talkback radio program, and argues that all Muslims in Australia should be repatriated back to their countries of origin, and that Muslims should not be allowed to emigrate to Australia. The person offers as grounds for these views that the religion of Islam and the cultural values of people from Muslim countries are inferior to, and inconsistent with, mainstream Australian culture, and that the presence of a significant Muslim community in Australia—especially in the current political climate in the context of international terrorism—is a source of inter-community conflict, a poisoning of authentic Australian culture, and a breeding ground for terrorists. Let us assume that the claims that are made by this person are false, and that this can demonstrated. Let us further assume that the person was motivated by a deep aversion to Middle Eastern peoples, and a desire to contribute to the creation of a climate of suspicion and fear about the Muslim community in Australia. In short, the talkback radio diatribe is in fact an instance of hate speech, at least on some definitions of that term.

Gelber maintains that hate speech is typically group directed vilification.

Gelber argues that the standard way of looking at the problem of the conflict between free speech rights on the one hand, and the harm done by hate speech on the other, is to try to strike a balance by restricting some instances of hate speech, but not others. Moreover, the balance is to be struck by weighing the right to free speech against the harm done by hate speech. Inevitably, Gelber argues, the balance will favour free speech. Indeed, she suggests that this is what has happened in New South Wales, notwithstanding the attempt to deal with the problem by way of racial anti-vilification legislation enacted in 1989 (p. 3). According her study of 568 complaints lodged under the NSW statute not a single case of serious racial vilification has been prosecuted (p. 15). Gelber takes this as evidence that the balance in New South Wales favours free speech over the harm done by hate speech. Moreover, even in actionable civil cases the remedies on offer treat hate speech as if it were essentially a matter for individual private resolution. But Gelber maintains that hate speech is typically, or frequently, group directed vilification. So hate speech in the form of public, group directed vilification is not addressed when it is treated as an issue for individual private resolution.

So Gelber proposes a different strategy. She recommends against restricting freedom of speech, and in favour of (in effect) institutional empowerment of the victims of hate speech by way of a policy of ‘speaking back’ (Chapter 6). Speaking back involves such things as government funding for local newsletters to respond to episodes of hate speech in a specific community, or the development of an anti-racism program in a workplace in which hate speech has taken place (p. 123).

According to Gelber, the philosophical basis for this policy strategy is provided by: (1) the neo-Aristotelian capabilities theory of Amartya Sen (and for Gelber, especially the later version propounded by Martha Nussbaum) and (2) speech act theory developed by J. L. Austin, John Searle and Paul Grice (and for Gelber, especially the later version propounded by Jürgen Habermas). Roughly speaking, from capabilities theory we learn that public policy ought to be directed to the goal of maximising human capabilities, and speech liberty is a necessary condition for this. From speech act theory we learn that speech is not simply the communication of thoughts it is also conduct in a more full-blooded sense—speech has, and is intended to have, effects (called by Austin, ‘perlocutionary effects’), including harmful ones. Moreover, these harms include impairing the development of human capabilities among groups who are the victims of hate speech. Accordingly, Gelber argues, we ought to ensure that citizens can participate in institutions of public communication and education, and can develop and use these institutions to ‘speak back’ to hate speech, thereby minimising its harms.

We need to keep restrictions on freedom of speech to a bare minimum.

Arguably, Gelber overplays her hand in her use of capabilities theory and speech act theory to try (in effect) to weaken the presumption against restrictions on freedom of speech. In the first place, for those of us who hold freedom of speech to be an intrinsic (as well as an instrumental) good, appeals to instrumentalist considerations—including the maximisation of human capabilities—while weighty, may not be decisive. In the second place, although speech is a species of conduct, arguably it has properties that ought to ensure that it is restricted less than other rights. Freedom of speech and freedom of thought are tightly connected, and central to, individual autonomy and individual identity so we need to keep restrictions on freedom of speech to a bare minimum.

There is much in Gelber’s book that one can agree with. It is surely important for (especially) oppressed minority groups to respond to the varieties of hate speech in part by developing and using institutions of public communication and education to counter hate speech directly, and refute some of the (alleged) factual claims and argumentative moves that underpin it. Moreover, capabilities theory and speech act theory are germane to Gelber’s concerns; and these theories are independently plausible and influential philosophical perspectives, albeit ones that Gelber is not able to comprehensively explain and defend in a work of this kind.

On the other hand, Gelber’s book has some deficiencies. For example, she must surely acknowledge that a policy to compensate individuals for the harms caused by hate speech is necessary. Hate speech is not always or necessarily or exclusively group centred; typically, an individual human person is harmed, even if harmed by virtue of their member of a group.

Most important, Gelber has not satisfactorily resolved a significant question, namely determining the point at which hate speech should be restricted. Notwithstanding the importance of developing a ‘speaking back’ policy, it is still necessary to develop a satisfactory policy on the specific issue of what forms of hate speech should be legally restricted and under what circumstances. Not to have done so is a deficiency in her account.

Seumas Miller is Professor of Philosophy at Charles Sturt University and the Australian National University (joint position)), and Director of the Centre for Applied Philosophy and Public Ethics (an Australian Research Council funded Special Research Centre). He is the author of numerous books and articles, including Social Action (Cambridge University Press, 2001) and (with Ed Spence and Peter Roberts) Corruption and Anti-Corruption (Prentice Hall, 2004).