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Hate Speech Bans, Democracy, and Political
Legitimacy
James Weinstein
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527
HATE SPEECH BANS, DEMOCRACY, AND
POLITICAL LEGITIMACY
James Weinstein*
Laws prohibiting discrimination on the basis of
characteristics such as race, ethnicity, religion, sex, or sexual
orientation are an essential means by which modern liberal
democracies promote equality and protect human dignity.
Consistent with these laudable goals, most liberal democracies,
with the notable exception of the United States, also prohibit hate
speech, including expression that demeans people based on
characteristics protected by antidiscrimination laws. Ironically,
however, hate speech restrictions can undermine the legitimacy of
antidiscrimination laws, both in terms of their popular acceptance
but even more crucially with respect to the morality of their
enforcement. For instance, laws forbidding people from
expressing the view, as is the case in several European
jurisdictions, that homosexuality is immoral or disordered, can
destroy the moral justification of enforcing laws against sexual-
orientation discrimination against religious dissenters.
Conversely, the ability of Americans to freely oppose
antidiscrimination laws by publicly expressing bigoted ideas about
groups protected by these laws strengthens the legitimacy of
enforcing these provisions even when doing so infringes upon
deeply held religious convictions. In explicating this untoward
effect of hate speech laws on the legitimacy of antidiscrimination
measures, this Article explores more generally the relationship
between free speech and political legitimacy, thereby explaining
* Dan Cracchiolo Chair in Constitutional Law, Sandra Day O’Connor College of
Law, Arizona State University. I am grateful to Larry Alexander, Trevor Allan, Dick
Arenson, Terry Ball, Eric Barendt, Dan Bodansky, Paul Coleman, Peter de Marneffe,
John Finnis, Ivan Hare, Jill Hasday, Eric Heinze, Jeff Murphy, Robert Post, Jake
Rowbottom, Fred Schauer, Mary Sigler, Wayne Sumner and Jeremy Waldron for their
helpful comments and to James Hall, Julie Hedberg, and Austin Yost for their valuable
research assistance.
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528 CONSTITUTIONAL COMMENTARY [Vol. 32:527
and supporting American free speech doctrine’s exceptional
antipathy to viewpoint-discriminatory laws of any variety.
I. INTRODUCTION
Free speech is highly valued in liberal democracies because it
promotes multifarious liberal and democratic values, including
respect for individual autonomy and self-realization,
1
exposure of
government incompetence and malfeasance,
2
and the promotion
of a well-informed electorate.
3
There is, however, another crucial
purpose of free speech that curiously is often omitted from the
litany of values recognized by courts and commentators:
4
the
opportunity for each individual to participate as an equal in the
public conversation about society’s collective decisions. Ronald
Dworkin has offered a particularly lucid and powerful
explanation of the importance of this participatory interest: “[I]t
is illegitimate,” Dworkin contends, “for governments to impose a
collective or official decision on dissenting individuals, using the
coercive powers of the state, unless that decision has been taken
in a manner that respects each individual’s status as a free and
equal member of the community.”
5
In his view, a fair democracy
1. See, e.g., C. Edwin Baker, Autonomy and Free Speech, 27 CONST. COMMENT. 251
(2011); Martin Redish, The Value of Free Speech, 130 U.
PA. L. REV. 591 (1982); Seana
Valentine Shiffrin, A Thinker-Based Approach to Freedom of Expression, 27 C
ONST.
COMMENT. 283 (2011).
2. See, e.g., Vincent Blasi, The Checking Value in First Amendment Theory, 2 A
M.
B. FOUND. RES. J. 521 (1977).
3. See, e.g., Animal Defenders Int’l v. Sec’y of State for Culture, Media and Sport,
[2008] U.K.H.L. 15, ¶ 28 (UK), http://www.5rb.com/wp-content/uploads/2013/10/R-
Animal-Defenders-International-v-Culture-Secretary-HL-12-Mar-2008.pdf;
A
LEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT
(1948). In addition, freedom of expression has famously been defended as promoting truth
discovery. See, e.g., J
OHN MILTON, AREOPAGITICA—A SPEECH FOR THE LIBERTY OF
UNLICENSED PRINTING (1644); JOHN STUART MILL, ON LIBERTY (1859). Despite the
vital importance of truth discovery for human progress, it is neither an essentially
democratic nor liberal value.
4. For example, a leading constitutional casebook fails to mention this value in an
otherwise comprehensive survey of the values underlying the First Amendment’s Free
Speech Clause. See KATHLEEN M. SULLIVAN & NOAH FELDMAN, CONSTITUTIONAL LAW
888–93 (18th ed. 2013). The same is true of judicial explanations of the value of freedom
of expression. For instance, Lord Bingham’s eloquent defense of the democratic value of
free speech in Animal Defenders International focuses exclusively on the audience interest
in making “a sound choice when, in the course of the democratic process it has a right to
choose.” Animal Defenders Int’l, ¶ 28.
5. R
ONALD DWORKIN, Foreword to EXTREME SPEECH AND DEMOCRACY, vii
(Ivan Hare & James Weinstein eds., 2009). Robert Post, whose seminal work has
elucidated the vital role of speaker participation in democratic self-governance, has also
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requires that each citizen have not just a vote in deciding the will
of the majority but also “a voice”:
[A] majority decision is not fair unless everyone has had a fair
opportunity to express his or her attitudes or opinions or fears
or tastes or presuppositions or prejudices or ideals, not just in
the hope of influencing others (though that hope is crucially
important), but also just to confirm his or her standing as a
responsible agent in, rather than a passive victim of, collective
action. The majority has no right to impose its will on someone
who is forbidden to raise a voice in protest or argument or
objection before the decision is taken.
6
Dworkin rejects the argument that there should be an
exception to this principle based on the claim that no one has a
right “to pour the filth of . . . race-hatred into the culture in which
we all must live.” Rather, he insists that we cannot suppress such
expression “without forfeiting our moral title to force such people
to bow to the collective judgments that do make their way into the
statute books.” We may and should, in his view, adopt laws to
protect people from “specific and damaging consequences” of
racism and other forms of intolerance in employment, education,
housing, or the criminal process, among other settings. Yet we
must not, he cautions, “try to intervene further upstream, by
forbidding any expression of the attitudes or prejudices that we
think nourish such unfairness or inequality.” For if we intervene
prematurely in the process through which collective opinion is
formed, “we spoil the only democratic justification we have for
insisting that everyone obey these laws, even those who hate and
resent them.”
7
Similarly, I have written that “[i]f an individual is excluded
from participating in public discourse because the government
disagrees with the speaker’s views or because it finds the ideas
expressed too disturbing or offensive, any decision taken as a
result of that discussion would, as to such an excluded citizen, lack
emphasized the connection between free speech and political legitimacy. Post thus
explains that “public discourse is comprised of those processes of communication that must
remain open to the participation of citizens if democratic legitimacy is to be maintained.”
Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA
L. REV. 1, 7
(2000); see also C. Edwin Baker, supra note 1, at 262–69 (2011); James Weinstein, Free
Speech and Political Legitimacy: A Response to Ed Baker, 27 C
ONST. COMMENT. 361, 369–
71 (2011).
6. D
WORKIN, supra note 5, at vii.
7. Id. at vii, viii.
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530 CONSTITUTIONAL COMMENTARY [Vol. 32:527
legitimacy.”
8
So if a person is forbidden from expressing a
particular view about a proposed tax increase, whether the nation
goes to war, immigration policy, or any matter of public concern,
then to that extent and with respect to that citizen “the
government is no democracy, but rather an illegitimate
autocracy.”
9
Jeremy Waldron has vigorously challenged the view that
“upstream” hate speech restrictions deprive “downstream”
antidiscrimination measures of legitimacy.
10
Specifically, he
questions how literally we should take the claim that legitimacy is
“spoiled” by hate speech restrictions. For instance, Waldron asks,
does a wealthy landlord really have no obligation to obey a law
forbidding him from discriminating against English families of
South Asian descent just because there is also a law that prohibits
him from publishing virulently anti-Pakistani views? Or does the
existence of this restriction make it morally wrong for government
officials to enforce these antidiscrimination measures against the
landlord?
11
Waldron concludes that the most plausible
interpretation of this claim is that “the legitimacy of any given law
is itself a matter of degree and that, on the moderate version of
Dworkin’s argument, the enforcement of hate speech laws
diminishes the legitimacy of other laws without destroying it
altogether.”
12
In response to this criticism, Dworkin agreed that
“[o]n balance Britain is entitled to enforce such laws, I think, but
we are left with a deficit in legitimacy—something to regret under
that title—because of the censorship.”
13
But here the agreement ends, for Waldron does not believe
that we have much, if anything, to regret on this score. Rather, in
his view, most hate speech restrictions in democratic countries
“bend over backward” to assure that speakers have a lawful way
to “express[] something like the propositional content” of bigoted
8. James Weinstein, Participatory Democracy and Free Speech, 97 VA. L. REV. 491,
498 (2011).
9. Id.
10. Jeremy Waldron, Hate Speech and Political Legitimacy [hereinafter Waldron,
Political Legitimacy], in T
HE CONTENT AND CONTEXT OF HATE SPEECH 329, 339–40 &
n.43 (Michael Herz & Peter Molnar eds., 2012); Jeremy Waldron, T
HE HARM IN HATE
SPEECH (2012) [hereinafter WALDRON, HATE SPEECH].
11. Waldron, Political Legitimacy, supra note 10, at 332.
12. Id. at 333.
13. Id. at 334 (quoting email from Ronald Dworkin to Jeremy Waldron, Oct. 4, 2009,
21:34 EST (on file with Waldron)).
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views that become illegal only “when expressed as vituperation.”
14
He therefore suggests that hate speech bans have only “a minimal
effect on legitimacy.”
15
In addition, Waldron contends that the
weightiness of “protecting the basic social standing . . . of
members of vulnerable groups” undercuts the credibility of the
claim that hate speech restrictions impair the legitimacy of these
laws.
16
Waldron usefully advances the inquiry by being among the
first to directly engage, rather than talking past,
17
what to my mind
is the most powerful argument against hate speech bans.
18
He is
also to be credited with properly criticizing Dworkin and me for
not adequately specifying what we meant in claiming that hate
speech restrictions can deprive downstream antidiscrimination
laws of legitimacy. The primary purpose of this Article is to fill
this lacuna by explaining in detail how upstream speech
restrictions can deprive downstream laws of legitimacy. I am
enormously grateful to Waldron for spurring me to do so.
In several other crucial respects, however, Waldron’s critique
is deeply flawed. To begin with, he underestimates the extent to
14. Id. at 335.
15. Id.
16. Id. at 336. Dworkin wrote a brief (just over three-page) reply to Waldron’s
critique confirming that he does believe legitimacy is “a matter of degree.” Ronald
Dworkin, Reply to Jeremy Waldron, in T
HE CONTENT AND CONTEXT OF HATE SPEECH,
supra note 10, at 341–42. Dworkin does not, however, discuss whether there may be
circumstances in which the deficit to legitimacy resulting from a speech restriction might
be so severe as to render immoral the enforcement of a downstream law. Rather, the main
thrust of his reply objects to Waldron’s premise that the cost of legitimacy worked by a
speech restriction can be properly balanced against the cost to vulnerable minorities. Id.
at 342–43.
17. See e.g., Ioanna Tourkochoriti, Could Hate Speech Be Protected? Group
Defamation, Party Bans, Holocaust Denial and the Divide Between (France) Europe and
the United States, 45 C
OLUM. HUM. RTS. L. REV. 552, 590–93 (2014); Alexander Tsesis,
Dignity and Speech: The Regulation of Hate Speech in a Democracy, 44 W
AKE FOREST L.
REV. 497, 501–02, 508, 511, 514, 532 (2009).
18. Subsequent to Waldron, another scholar has also vigorously challenged
Dworkin’s and my view that hate speech restrictions can deprive antidiscrimination
measures of political legitimacy. See A
LEXANDER BROWN, HATE SPEECH LAW: A
PHILOSOPHICAL EXAMINATION (2015). (Brown’s critique is discussed in Part IV C, infra.)
Cf. Katharine Gelber, Freedom of Political Speech, Hate Speech and the Argument from
Democracy: The Transformative Contribution of Capabilities Theory, 9 C
ONTEMP. POL.
THEORY 304, 309–11 (2010) (discussing Robert Post’s claim that hate speech laws interfere
with systemic legitimacy); Steven H. Shiffrin, Freedom of Speech and Two Types of
Autonomy, 27 C
ONST. COMMENT. 337, 339 (2011) (challenging C. Edwin Baker’s view that
restrictions on hate speech diminish systemic legitimacy). See infra text accompanying
notes 28–29 (discussing distinction between systemic legitimacy and legitimacy of a
particular law); see also infra note 165 (discussing the effect of hate speech laws on systemic
legitimacy).
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532 CONSTITUTIONAL COMMENTARY [Vol. 32:527
which even restrictions on extremely vituperative bigoted speech
can diminish the legitimacy of downstream antidiscrimination
measures. But much more crucially, he is mistaken in his
assumption that such minimal restraint is all that the laws of most
democracies actually impose on the ability of speakers to
challenge contemporary orthodoxy about such matters as race,
religion, and sexual orientation.
19
Far from imposing constraints
only on “viciously vituperative” expression of bigoted ideas, hate
speech laws and other forms of speech restriction have been
employed, for instance, to punish people who without resort to
vile epithets or other uncivil language criticized Islam or
homosexuality.
In this Article I will argue that in some instances upstream
restrictions on hate speech are so severe that they not only
diminish but can potentially annihilate the legitimacy of
downstream antidiscrimination laws.
20
Specifically, I will discuss
the potential of these speech restrictions to destroy any political
obligation of those restrained by these laws to obey the
downstream antidiscrimination measures. Much more
problematically, hate speech restrictions can render immoral the
otherwise appropriate application of antidiscrimination laws to
dissenters in cases involving competing fundamental interests
such as religious liberty. And even in cases where these speech
restrictions do not annihilate the legitimacy of these
antidiscrimination laws, they can so profoundly diminish their
legitimacy as to leave us with something very much to regret. This
unfortunate effect on the legitimacy of antidiscrimination laws, in
turn, tells strongly against the propriety of hate speech restrictions
in a free and democratic society.
Part II explores the relationship between free speech and
political legitimacy. It discusses, first, how the opportunity to
participate as an equal in the political process is essential to such
legitimacy and then explains the vital connection between free
speech and democratic participation. Part III considers the effect
on the legitimacy of downstream antidiscrimination measures on
19. Although Waldron limits his discussion in both works—cited supra note 10—to
restrictions on racist speech, I will include in my discussion recent cases dealing with
punishment of people for condemning homosexuality as immoral or disordered.
20. In this Article I use the term “annihilate” or “destroy” to signify the complete
elimination, as opposed to diminishment short of complete elimination, of the legitimacy
of a downstream law worked by an upstream speech restriction.
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the assumption that the upstream restrictions on hate speech are,
as Waldron claims, limited to highly vituperative hate speech,
such as attempts to stir up racial hatred by referring to members
of minorities groups as “cockroaches” or “rats.” It concludes that
the effect of legitimacy resulting from such limited restrictions
would be modest, though not as minimal as Waldron claims. Part
IV begins by showing that, contrary to the assumption in Part III,
in actual practice hate speech restrictions have been used to
punish far more than just highly virulent hate speech. Rather,
these restrictions have been applied, for instance, to statements
that guest-workers should be expelled from a country; that
homosexuality is abnormal; or that in today’s society the Prophet
Mohammad would be considered a child molester. This Part then
explores in detail the impact these upstream hate speech
restrictions have on the legitimacy of downstream
antidiscrimination laws. It argues that in some cases these speech
restrictions have the potential to destroy any political obligation
dissenters might otherwise have to obey these antidiscrimination
measures. Even more perniciously, these speech restrictions have
the potential to render immoral the enforcement of
antidiscrimination laws against dissenters.
II. FREE SPEECH AND POLITICAL LEGITIMACY
A.
POLITICAL LEGITIMACY AND DEMOCRATIC PARTICIPATION
Political legitimacy refers to the conditions that entitle a
political entity to govern, and in particular, to use coercion to
enforce its laws.
21
Additionally, indeed some would say
correlatively,
22
it refers to the conditions that create an obligation
21. See, e.g., Christopher Wellman, Liberalism, Samaritanism, and Political
Legitimacy, 25 P
HIL. & PUB. AFF. 211, 211–12 (1996).
22. See, e.g., M
ICHAEL HUEMER, THE PROBLEM OF POLITICAL AUTHORITY 12–14
(2012); A. John Simmons, Justification and Legitimacy, 109 E
THICS 739, 746 (1999)
(arguing that “state legitimacy is the logical correlate of various obligations, including
subjects’ political obligations”). But see, e.g., Rolf Sartorius, Political Authority and
Political Obligation, 67 V
A. L. REV. 3, 4 (1981) (concluding that “those in political power
may often correctly claim a moral right to rule but that those under their power may not,
under any philosophically interesting conditions, be said to have a correlative moral
obligation to obey the law”); see also Wellman, supra note 21, at 212 n.1 (contending that
“the correlative of a state’s moral right to coerce [is not] a citizen’s moral duty to obey, but
. . . merely a citizen’s lack of right to not be coerced”).
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534 CONSTITUTIONAL COMMENTARY [Vol. 32:527
for people to obey the laws of a political entity.
23
Political
legitimacy has both a descriptive and normative sense.
Descriptively, the term refers to the people’s belief that the
political entity asserting authority over them has a right to
govern.
24
In addition, it refers to their belief that they have an
obligation to obey
25
the laws enacted by this entity.
26
Normatively,
political legitimacy refers to the objective criteria that morally
entitle a political entity to govern, especially those that generate
an obligation to obey the laws and, most crucially, that justify the
use of coercion to enforce these laws.
27
23. In addition to Dworkin and Waldron, other prominent thinkers who have written
on this enduringly difficult subject include Hobbs, Locke, Rousseau, Hume, Kant, Mill,
Weber, Habermas, Dahl, Rawls, and Raz. See Fabienne Peter, Political Legitimacy,
S
TANFORD ENCYCLOPEDIA OF PHILOSOPHY (2010).
24. See, e.g., M
AX WEBER, THE THEORY OF SOCIAL AND ECONOMIC
ORGANIZATION 130–31, 328 (1964).
25. Id. at 124; see also
TOM TYLER, WHY PEOPLE OBEY THE LAW 161 (2d ed. 2006).
In an illuminating recent book examining the role of coercion in law, Frederick Schauer
carefully examines what it means to “obey the law.” See F
REDERICK SCHAUER, THE
FORCE OF LAW 48–54, 42, 48 (2015). Schauer distinguishes obeying a law just because it is
the law, from obeying a law to avoid legal sanctions. Id. at 42, 52 (Obeying a law “qua law”
or because of “the very fact of the law,” are other common terms for obeying the law for
reasons unrelated to the law’s sanctions. I take Waldron’s specification of a “political
obligation to obey the law[],” Waldron, Political Legitimacy, supra note 10, at 332
(emphasis added), to mean obedience just because it is the law.) Schauer also usefully
distinguishes obeying a law from acting consistently with the law for various “law-
independent” reasons, including having no desire to engage in the prohibited behavior
(e.g., cannibalism) or because of moral constraints (e.g., not stealing a dearly coveted
object because it is wrong to do so). S
CHAUER, supra note 25, at 49–50. Having thus
explicated precisely what it means to obey the law, Schauer then argues at length that there
is little reason to believe that people in fact obey the law just because it is the law. Id. at
57–74, 94, 131.
26. Descriptive legitimacy in the sense of “the willingness to identify with and accept
[a law] which we think mistaken” is sometimes referred to as sociological legitimacy. See,
e.g., Frederick Schauer, Constitutions of Hope and Fear, 124 Y
ALE L.J. 528, 537–38 & n.34
(2014) (book review). Although Waldron notes that in social science “legitimacy” often
means “little more than. . . popular support,” Waldron, Political Legitimacy, supra note 10,
at 332, he correctly assumes that Dworkin is using the term in its normative sense (see infra
note 27) and thus focuses his critique on this sense of the term. In an incisive monograph,
Eric Heinze criticizes what in his view is Waldron’s overall reliance on sociological notions
of legitimacy in discussing hate speech bans. See E
RIC HEINZE, HATE SPEECH AND
DEMOCRATIC CITIZENSHIP 44, 59, 86, 107 n.24, 112 n.148 (2016). In doing so, however,
Heinze insufficiently acknowledges Waldron’s engagement, noted above, with Dworkin’s
normative approach on Dworkin’s own normative ground. Id. at 44.
27. See, e.g., H
UEMER, supra note 22, at 5–9; Simmons, supra note 22, at 746.
Waldron assumes that Dworkin means legitimacy as “a normative property—either the
existence of a political obligation to obey the laws or the appropriateness of using force to
uphold them.” Waldron, Political Legitimacy, supra note 10, at 332. This take on legitimacy
is consistent with Waldron’s own concept of legitimacy. See, e.g., Jeremy Waldron,
Theoretical Foundations of Liberalism, 37 PHIL. Q. 127, 133, 135–36, 140 (1987). In
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The focus of most of the literature has been on systemic
legitimacy, that is, the conditions that make a particular legal
system legitimate.
28
Although I will briefly touch on how free
speech restrictions can impair systemic legitimacy, this Article will
focus on the impact that these restrictions can have on the
legitimacy of particular downstream laws. Specifically, I will
examine the potential of upstream speech restrictions to
undermine, and in some cases even to destroy, (a) the obligation
of those restrained by the speech restriction to obey a downstream
antidiscrimination law; and (b) the morality of enforcing the
downstream measure against those whose participatory rights
have been impaired by the upstream speech restriction.
29
An enormous amount has been written attempting to identify
the objective criteria that justify a political entity to govern, as
well those that generate an obligation to obey the laws enacted by
that entity. The most prevalent theories are ones attempting to
ground legitimacy in consent (either actual
30
or hypothetical
31
),
contrast, Post’s concern is primarily with descriptive legitimacy. See Robert Post, Equality
and Autonomy in First Amendment Jurisprudence, 95 M
ICH. L. REV. 1517, 1523 (1997)
(“The value of collective self-determination [inheres] in the people’s . . . warranted
conviction that they are engaged in the process of deciding their own fate.”). As is often
the case with seemingly sharp conceptual distinctions, however, there is a point at which
the descriptive and normative senses of legitimacy converge. Thus Post refers to a
“warranted” conviction. Id. Accord Weinstein, supra note 5, at 362 (arguing that citizens
will feel an obligation to obey the law if they have the warranted conviction that the legal
system is, on the whole, moral). Despite such areas of overlap, I will for the sake of
economy and clarity consider the descriptive and normative senses of legitimacy separately
in this Article.
28. See, e.g., Baker, supra note 1, at 251; Weinstein, supra note 5, at 369–70; Post,
supra note 27, at 1523; Interview with Robert Post in T
HE CONTENT AND CONTEXT OF
HATE SPEECH, supra note 5, at 25 (arguing that “the state has pro tanto ceased to be
legitimated” if it excludes people from the process of public opinion formation); see also
H
EINZE, supra note 26, at 46 (claiming that it is “the citizen prerogative of non-viewpoint-
punitive expression within public discourse” which legitimates states, not qua state, but
rather “as democracies”).
29. Unlike Waldron and Dworkin, I will consider the impact of speech restrictions
on the obligation to obey the law from a descriptive (or sociological) perspective as well as
a normative one. With respect to the morality of enforcement, however, the inquiry will
be purely normative. See infra note 89.
30. See, e.g., Simmons, supra note 22.
31. See, e.g., Cynthia Stark, Hypothetical Consent and Justification, 97 J.
PHIL. 313
(2000); Waldron, Theoretical Foundations, supra note 27, at 138–46. As Waldron uses the
term in this article, legitimacy encompasses the moral justification for imposition or
enforcement of the law but not the political obligation to obey the law, which he considers
a separate concept. Id. at 136. Cf. Waldron, Political Legitimacy, supra note 10, at 332
(referring to legitimacy as “either the existence of a political obligation to obey the laws or
the appropriateness of using force to uphold them”). Terminology aside, Waldron finds
hypothetical consent not useful as a basis for generating a political obligation to obey the
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536 CONSTITUTIONAL COMMENTARY [Vol. 32:527
utilitarianism,
32
fair play,
33
and democracy.
34
It is a particular
version of the democratic criterion that I will adopt in this article.
Specifically, I will argue that the equal opportunity to participate
in the political process, including in the public discussion of
collective decisions, is essential to political legitimacy.
As Robert Dahl has explained: “The democratic process is
generally believed to be justified on the ground that people are
entitled to participate as political equals in making binding
decisions, enforced by the state, on matters that have important
consequences for their individual and collective interests.”
35
Individuals, moreover, are entitled to participate as political
equals not just to vindicate their personal interests narrowly
defined, but also in deciding what in their judgment is best for
society as a whole.
36
As deep and as ubiquitous as this
commitment to political equality may be in modern democracies,
the connection between an entitlement to participate as political
equals and legitimacy is not obvious. The first link in the chain is
the fundamental precept, an inheritance from the Enlightenment,
that each individual in society is of equal moral worth and
therefore is entitled to have his or her interests treated with equal
respect by government.
37
The next link implicates the age-old
problem of justifying the use of coercion to enforce a law against
a free and autonomous person who reasonably disagrees with that
law. Waldron, Theoretical Foundations, supra note 27, at 138–39. In contrast, he finds
hypothetical consent helpful for justifying the imposition of the laws and, in addition,
argues that political liberalism provides a solid basis for positing hypothetical consent of
the governed. Id. at 140–46.
32. See, e.g., Kenneth Binmore, A Utilitarian Theory of Political Legitimacy, in
VALUES AND INSTITUTIONS IN ECONOMIC ANALYSIS 101–32 (Avner Ben-Ner & Louis
Putterman eds., 2000).
33. See, e.g., Edward Song, Acceptance, Fairness, and Political Obligation, I8 L
EGAL
THEORY 209 (2012).
34. See, e.g., Joshua Cohen, Deliberation and Democratic Legitimacy, in T
HE GOOD
POLITY: NORMATIVE ANALYSIS OF THE STATE, (Alan Hamlin & Phillip Petit eds., 1989).
35. R
OBERT DAHL, CONTROLLING NUCLEAR WEAPONS: DEMOCRACY VERSUS
GUARDIANSHIP 5 (1985).
36. See generally J
OHN RAWLS, A THEORY OF JUSTICE 348 (1971) (explaining that
the freedom of political speech is a basic liberty because it involves “the free public use of
our reason in all matters that concern the justice of the basic structure and its social
policies”).
37. See, e.g., I
MMANUEL KANT, METAPHYSICS OF MORALS (1797) (M. Gregor trans.,
1991); J
OHN LOCKE, SECOND TREATISE OF GOVERNMENT ch.2 §§ 4, 6, 8, 9, 52 (1689)
(C.B. Macpherson ed., 1980). See also the statement of Thomas Rainboro during the 1647
Putney debates: “Really I think that the poorest he that is in England has a life to live as
the richest he.” (quoted in O
LD RIGHTS AND NEW 54 (Robert A. Licht ed., 1993)).
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law. There may well be no completely satisfactory answer to this
conundrum. But because the “democratic process . . . ‘equally’
respects people as properly having a ‘say’ in the rules they live
under,” democracy is “arguably the best that can be done . . . for
justifying the legitimacy of the social order.”
38
As a descriptive matter, empirical studies suggest that “an
opportunity to take part in [a] decision-making process,”
39
in
which citizens are able “to present their views”
40
and are treated
with “dignity and respect,”
41
increases the participants’ feeling
that they “ought to obey the law,”
42
including laws with which they
disagree.
43
As a normative matter, the connection between
democratic participation and legitimacy becomes vivid if we look
at the other side of the coin, that is, to situations in which some
citizens have been denied an opportunity for equal participation.
Selectively denying some individuals an equal opportunity to have
their “say” about a proposed law disrespects their equal moral
worth; enforcing such a law against dissenters adds injury to insult
by disregarding their interests.
44
So even if the opportunity for
equal political participation is not a sufficient condition to entitle
government to use coercion to enforce its laws or to generate even
a prima facie obligation of citizens to obey these laws, it would
seem to be a necessary condition for such normative political
38. Baker, supra note 1, at 262, 263 (2011).
39. T
YLER, supra note 25, at 163. The processes considered in these studies were
judicial proceedings and interaction with police. Other studies focusing on legitimacy and
the political process suggest that citizens having a “voice” in the process by which a law is
enacted increases their belief that the law ought to be obeyed. See Tom R. Tyler,
Multiculturalism and the Willingness of Citizens to Defer to Law and to Legal Authorities,
25 LAW & SOC. INQUIRY 983, 995–96, 1007 (2000).
40. T
YLER, supra note 25, at 147.
41. Id. at 178.
42. Id. at 161–62. Additionally, these studies find that people’s increased belief in
their having an obligation to obey the law results in their voluntary compliance with the
law. Id. at 4, 27, 57, 62, 66. Conversely, “[i]f people have an experience not characterized
by fair procedures, their later compliance will be based less strongly on the legitimacy of
the legal authorities.” Id. at 172.
43. Id. at 64. Primarily because in his view these studies do not attend carefully
enough to what it means to “obey the law,” Schauer is extremely skeptical of Tyler’s
conclusion that people in fact feel an obligation to obey the law just because it is the law,
especially laws with which they disagree. See SCHAUER, supra note 25, at 57–69. Schauer
does allow, however, that the studies provide evidence that “a perception of legitimacy
increases the likelihood that people will obey laws they think are good but that ‘cost’ them
[something].” Id. at 60.
44. In addition, as I have discussed elsewhere, such selective denial of participatory
rights tends to diminish the legitimacy of the entire legal system. See Weinstein, supra note
5, at 369.
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538 CONSTITUTIONAL COMMENTARY [Vol. 32:527
legitimacy.
45
This claim, however, requires qualification and
explanation.
By way of qualification, the equal opportunity to participate
in the political process is a necessary condition of normative
legitimacy only with respect to people, both collectively and
individually, who are capable of self-governance. Thus the lack of
popular participation does not render a government illegitimate
in societies (if any) where the people are incapable of self-
governance, just as in a democracy it is not illegitimate to exclude
from full political participation those incapable of self-
governance, such as children or profoundly mentally retarded
adults.
46
By way of explanation, even where a government is
normatively illegitimate because it does not permit democratic
participation to a populace capable of self-government, it does not
follow that coercive enforcement of every law is immoral. Such a
state of affairs might, to use Waldron’s phrase, entitle the people
“to rise up in revolution”
47
against such an autocratic regime. But
even this profound lack of legitimacy does not make it immoral
for the government to use coercion to enforce ordinary criminal
laws such as those forbidding murder, arson, or rape.
48
So long as
a regime claims that it has a right to govern and asserts a
monopoly on the use of violence that such a claim entails, its
failure to protect people from ordinary criminal activity would
only exacerbate the moral deficit resulting from its unjustified
claim of a right to govern.
49
Still, people capable of self-
governance living under autocratic regimes might not have, in
45. Accord Waldron, Theoretical Foundations, supra note 27, at 140 (arguing that
consent of the governed is a necessary though perhaps not a sufficient condition of political
legitimacy in the sense of justifying the morality of the enforcement of the laws); H
EINZE,
supra note 26, at 80 (“The citizen’s prerogative of non-viewpoint-punitive expression
within public discourse stands not as a sufficient condition, but only as one necessary
condition for democratic legitimacy.”).
46. See J
OHN RAWLS, POLITICAL LIBERALISM 18–20 (1993).
47. See Waldron, Political Legitimacy, supra note 10, at 332.
48. See H
UEMER, supra note 22, at 137.
49. This is why Waldron is mistaken that Dworkin’s view about the potential of hate
speech restrictions to rob downstream laws of legitimacy “seems to imply that it is wrong
for the police to pursue, arrest and indict” someone who had assaulted a Muslim cab driver
in the wake of the 7/7 London bombings. W
ALDRON, HATE SPEECH, supra note 10, at 185.
Thus Dworkin writes that he agrees with Waldron that his argument “does not suppose
that ‘laws against racial violence or criminal damage’ are in any way compromised when
expression of racial hatred are banned” and adds that he does “not understand why
[Waldron] thinks they might be.” Dworkin, supra note 16, at 343.
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Waldron’s words, any “political obligation to obey the law,”
50
that
is, an obligation to obey the law qua law or just because it is the
law.
51
But this does not diminish the moral duty of people living
in illegitimately autocratic regimes to refrain from unjustifiably
inflicting grievous injury on each other.
In contrast to laws that that are morally imperative in any
society, laws about which there can be reasonable disagreement
are subject to being rendered illegitimate if people capable of self-
government are denied the equal opportunity to participate in the
process by which they are enacted.
52
And as I shall elaborate,
where the morality of a law cannot only be reasonably questioned
but also where its moral status is both contestable and highly
contentious, the lack of an opportunity to participate can have
grave consequences for political legitimacy.
B.
DEMOCRATIC PARTICIPATION AND FREE SPEECH
It is easily perceived how denying the right to vote to a
particular person, or to a particular group of people, can violate
the fundamental democratic precept of formal political equality,
and why such a violation can have grave implications for political
legitimacy. Curiously, however, it is often not appreciated that
restrictions on speech can just as surely violate the commitment
to political equality and hence have severe repercussions for
legitimacy.
53
Examining the relationship among free speech,
public opinion, and democratic self-governance will elucidate how
speech restrictions can diminish political legitimacy.
As Hans Kelsen explained in the middle of the last century:
The will of the community, in a democracy, is always created
through a running discussion between majority and minority,
through free consideration of arguments for and against a
certain regulation of a subject matter. This discussion takes
place not only in parliament, but also, and foremost, at political
50. See Waldron, Political Legitimacy, supra note 10, at 332 (emphasis added).
51. See supra note 25.
52. Accord J
EREMY WALDRON, THE DIGNITY OF LEGISLATION (1999).
53. Thus, for example, Fabienne Peter’s otherwise useful Democratic Legitimacy
entry in T
HE STANFORD ENCYCLOPEDIA OF PHILOSOPHY, supra note 23, does not even
mention free speech, let alone its relation to the subject of her book. Cf. H
EINZE, supra
note 26, at 49, who as if to compensate for such omissions argues that since voting derives
from “the more fundamental citizen prerogative of expression within public discourse,”
the interest in participating in public discourse “surpasses even the necessary procedure of
voting as democracy’s defining element.”
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540 CONSTITUTIONAL COMMENTARY [Vol. 32:527
meetings, in newspapers, books, and other vehicles of public
opinion. A democracy without public opinion is a contradiction
in terms.
54
It is through public opinion that the people, the ultimate
governors in a democratic society, control their representatives
between elections. The speech by which this public opinion is
formed—expression that courts and commentators often refer to
as “public discourse”
55
—includes more than “political speech in
the narrow sense” but embraces more generally “speech
concerning the organization and culture of society.”
56
It is a
commonplace that laws that forbid people from expressing certain
viewpoints can impede democracy by depriving the electorate of
information needed to make decisions.
57
What is not as well
appreciated is that such viewpoint-based speech restrictions on
public discourse infringe the fundamental interest in equal
political participation of those who want to express these
forbidden views. To the extent that such censorship prevents
people from expressing what they believe is best for society, it is
insulting; in so far the speech restriction impairs their ability to
promote or protect their own self-interest, it is also fundamentally
unfair.
58
54. HANS KELSEN, A GENERAL THEORY OF LAW AND STATE 287–88 (A. Wedberg
trans., 1945).
55. See, e.g., Cohen v. California, 403 U.S. 15, 22 (1971); Robert C. Post, The
Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic
Deliberation, and Hustler Magazine v. Falwell, 103 H
ARV. L. REV. 601 (1990); see also
H
EINZE, supra note 26, at 22 (explaining that the thesis of the book is that “democracy’s
legitimating expressive conditions derive from the citizen’s prerogative of non-viewpoint-
punitive expression within public discourse”).
56. E
RIC BARENDT, FREEDOM OF SPEECH 189 (2005).
57. See, e.g., M
EIKLEJOHN, supra note 3, at 27; First Nat. Bank of Boston v. Bellotti,
435 U.S. 765, 785–86 (1978).
58. As discussed supra note 31, Waldron grounds political legitimacy not in the right
of equal political participation as I do but rather in hypothetical consent. Significantly,
however, the basis for the hypothetical consent posited by Waldron is liberalism, which as
he notes includes a commitment to freedom of speech among a host of other civil liberties.
Waldron, supra note 27, at 130. So despite our differences concerning the deep normative
underpinnings of a free speech principle in a free and democratic society, there is an
overlapping consensus in our views that freedom of speech is essential to political
legitimacy. Since Waldron has never comprehensively spelled out the scope or weight of
the free speech principle that he believes is essential to liberalism, it is not possible to
determine with any certainty the extent of this overlapping consensus. Suggesting that this
overlap is substantial is that free speech theories based in liberty tend to encompass even
more expression than is covered by speaker-oriented participatory democracy theories.
See Weinstein, supra note 5, at 366 (discussing the overlapping consensus regarding
political legitimacy between a free speech theory grounded in formal autonomy and one
based in participatory democracy but noting greater scope of expression encompassed by
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It is the thesis of this Article that the infringement of this
fundamental interest of equal political participation can have
severe consequences not just for the legitimacy of the legal system
but also for individual downstream laws.
59
To flesh out this
proposition, I will examine how hate speech restrictions diminish,
and in some cases destroy, the legitimacy of downstream
antidiscrimination laws.
60
I will include in this examination not
just laws that are aimed specifically at hate speech but also
broader provisions against breach of the peace that are often
applied to expression that many consider hate speech,
61
such as
the view that homosexuality is immoral or disordered.
62
In accord
with Waldron’s assumption that most hate speech laws restrict
only the most virulent expression of racist sentiments, I will begin
by discussing in Part III the effect that even such limited
the autonomy principle). As I have previously argued, however, an extremely capacious
free speech principle such as one grounded in liberty will tend to provide weaker
protection of speech within its coverage than afforded by a principle grounded in
participatory democracy. See James Weinstein, Fools, Knaves, and the Protection of
Commercial Speech: A Response to Professor Redish, 41 L
OY. L.A. L. REV. 133, 156–60
(2007); see also Reed v. Town of Gilbert, 135 S. Ct. 2218, 2235 (2015) (Breyer, J.,
concurring) (discussing how applying strict scrutiny to all laws that discriminate on the
basis of the content of speech would likely result in “watering down” the force of
protection currently provided by the strict scrutiny). This observation is consistent with
Waldron’s view that suppression of hate speech does not imperil political legitimacy to the
extent that I think such restrictions do.
59. My argument that viewpoint-discriminatory laws have a particularly detrimental
effect on political legitimacy is limited to mature, stable democracies. Accord H
EINZE,
supra note 26, at 70 (limiting the “citizen’s prerogative of non-viewpoint-punitive
expression within public discourse” (id. at 46) to “longstanding, stable, and prosperous”
democracies). The justification for viewpoint-discriminatory laws, including hate speech
bans, and their impact on political legitimacy in emerging or unstable democracies is a
more complicated question beyond the scope of this Article.
60. Though my focus will be on hate speech bans, it should be noted that other
provisions, such as blasphemy laws and bans on glorifying terrorism or aiding terrorist
organizations, also have this potential.
61. In addition, some statutes, such as Britain’s sections 28 and 31 of the Crime and
Disorder Act 1998, combine hate speech regulation with general public order laws by
increasing the penalty for speech causing a breach of the peace if it also constitutes hate
speech. See infra text accompanying note 110.
62. Whether speech by religious traditionalists condemning homosexual conduct as
immoral is “homophobic” expression properly classified as hate speech is “an increasingly
contested question.” See Ian Leigh, Homophobic Speech, Equality Denial and Religious
Expression, in E
XTREME SPEECH AND DEMOCRACY 375 (Ivan Hare & James Weinstein
eds., 2009). The answer to this question depends, among other things, both upon what
precisely is meant by the term “homophobic” and how consistent the religious
traditionalist in question is in opposing other conduct biblically condemned as sinful. But
as interesting as this question may be, it has little bearing on the effect on political
legitimacy of suppressing speech criticizing homosexual conduct.
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restrictions have on political legitimacy. I will then examine in
Part IV the impact that speech restrictions as they actually exist
in many democracies have on legitimacy.
III. POLITICAL LEGITIMACY AND BANS LIMITED TO
MOST INFLAMMATORY HATE SPEECH
It can be strongly argued that the use of vile racial, ethnic,
religious or homophobic epithets in public discourse does not
significantly contribute to the electorate’s interest in having access
to the full range of perspectives and information relevant to their
collective decision making. Waldron takes a similar view with
respect to speakers’ interests in democratic participation, arguing
that bans limited to the most vituperative forms of hate speech
would have little or no detrimental effect on political legitimacy,
either with regard to political obligation to obey downstream laws
or on the propriety of enforcing these laws. He invokes as an
example the British hate speech law,
63
which in his view is limited
to suppressing particularly vicious forms of hate speech, such as
expression by a landlord opposed to antidiscrimination laws
referring to Pakistanis as “rats” or “cockroaches” or other
animals we would “normally seek to exterminate.”
64
Waldron
contends that this law, typical in his view of the hate speech laws
of other democracies, “bend[s] over backward” to provide “safe
haven” for bigots to less vituperatively express the basic
“propositional content” of their views, including the publication
of racial theories proclaiming that some groups are inherently
inferior.
65
For this reason, Waldron concludes that it is “an open
question” whether the restriction imposed by the British hate
speech law on the bigoted landlord in his scenario “had anything
more than a minimal effect”
66
on the landlord’s political
obligation to obey the law forbidding him from discriminating
63. Sec. 18(1) of the Public Order Act of 1986:
[A] person who uses threatening, abusive, or insulting words or behaviour, or
displays any written material which is threatening, abusive, or insulting, is guilty
of an offence if: a) he intends thereby to stir up racial hatred, or; b) having regard
to all the circumstances racial hatred is likely to be stirred up thereby.
Public Order Act 1986, UK ST 1986, c. 64, pt. III, § 18.
64. Waldron, Political Legitimacy, supra note 10, at 335.
65. Id. at 334–35.
66. Id. at 335.
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against Pakistanis or on the morality of enforcing this provision
against him.
67
Whether this assessment is correct depends on the degree to
which the speech restriction infringes the landlord’s interest in
participating as a political equal in making societal collective
decisions, especially those that directly affect his interests. This
inquiry reveals that Waldron has minimized somewhat the effect
that even this limited hate speech restriction has on the legitimacy
of downstream legislation.
A.
EFFECT ON LEGITIMACY
Waldron insists that banning vicious hate speech “probably
has no greater effect on political legitimacy than banning fighting
words or these other acknowledged exceptions to the free-speech
principle,” such as “obscenity” (by which Waldron seems to mean
profanity), “individual libel of private persons, disorderly
conduct,” or child pornography.
68
In support of this conclusion he
asks us to imagine that some people are so incensed about a
proposed “downstream” law that “they want to shout ‘Fuck!’ in
public, or challenge the legislation’s proponents to a fight, . . . or
display child pornography” in opposition to the proposed
67. Id. at 332.
68. W
ALDRON, HATE SPEECH, supra note 10, at 182, 183. Curiously, Waldron also
includes “sedition” on this list of “acknowledged exceptions to the free speech principle,”
and gives as an example of seditious speech protestors “urg[ing] mutiny by the armed
forces” in opposition to “downstream” legislation. I am unaware of any general consensus
in contemporary liberal democracies that seditious speech is unprotected expression, and
there is definitely no such exception to the American free speech principle. See
Brandenburg v. Ohio, 395 U.S. 444, 444–45, 447 (In invalidating a statute prohibiting
“[a]dvocat[ing] . . . crime, sabotage, violence, or unlawful methods of terrorism as a means
of accomplishing industrial or political reform,” the Court holds that that “the
constitutional guarantee[] of free speech . . . do[es] not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or produce such
action.”); see also N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270–76 (1964) (noting that
although the Sedition Act of 1798 was never “tested in [the Supreme Court]” before it
expired in 1801, there was a “broad [historical] consensus” that the law was “inconsistent
with the First Amendment”). More pertinently, imprisoning a demonstrator for merely
“urg[ing],” as opposed to inciting or even directly advocating, mutiny in the armed forces
in a protest against, say, a proposed conscription law would have serious consequences for
the political legitimacy of the conscription law. Waldron’s inclusion of sedition as an
exception to the free speech principle shows just how difficult it is come up with a
principled argument for suppressing even the most vituperative forms of hate speech that
would not also permit the suppression of other forms of intemperate, potentially
dangerous agitation against the status quo that must be protected in a free and democratic
society.
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544 CONSTITUTIONAL COMMENTARY [Vol. 32:527
legislation.
69
Because these particular forms of expression are
undoubtedly harmful, and because these protestors “can express
their opposition to the downstream laws without resorting to
obscenity . . . or the display of child pornography,” Waldron
concludes that it is “reasonable” to ask them to do so. For this
reason he concludes that “the loss of downstream legitimacy
incurred as a result of the banning of speech of these particular
kinds is minimal or nonexistent.”
70
As regards a ban on the use of profanity to express outrage
against proposed legislation, Waldron too readily discounts the
interest that protestors have in using such language in public
discourse,
71
while at the same time too facilely assuming such
expression is harmful. Still, whatever might be the case with
impairment of descriptive legitimacy,
72
Waldron makes a strong
argument that such restrictions do not substantially impair
legitimacy in the normative sense.
73
Waldron’s argument runs off
the rails, however, when he declares that “exactly the same points
apply to the case of hate speech as well.”
74
Waldron observes that like the use of profanity in public
discourse, as well as the other types of commonly forbidden
expression he mentions, hate speech is harmful. In addition, as
with speakers constrained by these restrictions, “the racist doesn’t
need to use the sort of vicious hate propaganda the law punishes
69. WALDRON, HATE SPEECH, supra note 10, at 182.
70. Id. at 183.
71. As the United States Supreme Court explained in upholding the First
Amendment right of an anti-war protestor to appear in public wearing a jacket bearing the
message “Fuck the Draft,” “words are often chosen as much for their emotive as their
cognitive force.” Cohen v. California, 403 U.S. 15, 16, 26 (1971). The Court also noted that
forbidding particular words poses “a substantial risk of suppressing ideas in the process.”
Id. at 26. For these reasons, as Judge Learned Hand long ago recognized, the “right to
criticize either by temperate reasoning, or by immoderate and indecent invective, . . . is
normally the privilege of the individual in countries dependent upon the free expression
of opinion as the ultimate source of authority.” Masses Pub. Co. v. Patten, 244 F. 535, 539
(S.D.N.Y. 1917).
72. Especially because forbidding the use of profanity in public discourse might
substantially impede speakers from expressing the depth of their feelings about a proposed
law, such a ban could substantially impair or even destroy any sense of political obligation
these protesters might feel to obey a downstream law they passionately oppose.
73. In particular, unless in a particular case the ban on profanity substantially
interfered with the ability of someone to express the basic “propositional content”
(Waldron, Political Legitimacy, supra note 10, at 335; see supra text accompanying note
14) of his opposition to proposed legislation, it is difficult to see how such a ban would
render immoral the otherwise moral use of coercion to enforce the downstream law.
74. W
ALDRON, HATE SPEECH, supra note 10, at 183.
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in order to express his opposition to laws against discrimination
and so on” because most hate speech laws “define a legitimate
mode or a legitimate forum for roughly equivalent expression that
will not incur legal sanctions.”
75
If the racist landlord’s ability to
protest a law forbidding housing discrimination were restricted
not by a ban on hate speech but by a general ban on comparing
people “to animals that we normally seek to exterminate” or by
some even broader imposition of civility norms, then for the
reasons just discussed with respect to a ban on profanity in public
discourse, I would agree that any effect on the normative
legitimacy of this downstream law would be “minimal,” though
perhaps not quite as negligible as Waldron contends.
76
However,
the restriction on the landlord’s ability in Waldron’s scenario to
express his views is not imposed by some comprehensive ban on
highly vituperative speech but by a restriction that applies only to
racist speech.
Unlike a ban on fighting words or profanity or the other
restrictions on harmful speech that Waldron mentions,
77
hate
speech bans are inherently viewpoint discriminatory. Britain’s
hate speech law, for instance, restricts only speech that intends to
“stir up racial hatred”
78
but not expression promoting racial
tolerance. As a result, the discriminatory effect of hate speech
laws persists even if the scope of the ban is confined to
vituperation. So while in Waldron’s scenario the law prevents a
landlord agitating against a law forbidding racial or ethnic
discrimination in the provision of housing from denouncing
Pakistanis as “cockroaches” or “rats,” it does not prevent
supporters of the antidiscrimination measure from using such
epithets to refer to landlords as a class or to those opposing the
measure.
79
Because of this viewpoint discriminatory effect, even
75. Id.
76. See supra notes 71 and 73. In all events, for the reasons discussed therein, it is an
overstatement to refer to the impact on normative legitimacy as “nonexistent,” as Waldron
alternatively does. See W
ALDRON, HATE SPEECH, supra note 10, at 183; see supra text
accompanying note 70. And as a descriptive matter, it is possible that such a ban might
substantially diminish or even destroy a landlord’s sense of political obligation to obey the
antidiscrimination measure. See supra note 72.
77. With the exception of “sedition,” which is arguably viewpoint based.
78. See supra note 63. For an excellent discussion of why hate speech bans are
viewpoint discriminatory even as applied to “‘hard core’ invective,” see H
EINZE, supra
note 26, at 20–21.
79. It might be argued that as applied to a discussion about an antidiscrimination
measure, the British hate speech provision is viewpoint neutral because it would also
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546 CONSTITUTIONAL COMMENTARY [Vol. 32:527
such a limited hate speech restriction is arguably more
detrimental to the legitimacy of downstream legislation than a
more comprehensive yet viewpoint-neutral ban on vituperative
speech.
1. Obligation To Obey the Law (Descriptive)
As discussed in Part II.B, viewpoint-discriminatory bans
uniquely implicate the fundamental interest in governing as a
political equal of those whose speech is suppressed by the
restriction. A law preventing those who oppose an
antidiscrimination measure from using epithets to describe the
members of a minority group whom the antidiscrimination
measure seeks to protect, but effectively imposing no restrictions
on the vituperation of those who support such measures, is likely
to be perceived as unfair by at least some opponents of the
antidiscrimination measure. For this reason, as a descriptive
matter, the upstream speech restriction may well substantially
diminish or might in some cases even annihilate any sense of
obligation that these dissenters may have had to obey the
downstream antidiscrimination measure.
80
2. Obligation To Obey the Law (Normative)
Whether as a normative matter such a discriminatory
restriction on the use of highly vituperative language significantly
diminishes, or potentially even annihilates, the landlord’s
obligation to obey the antidiscrimination law is a more difficult
question. With respect to this inquiry it should be borne in mind
prevent someone speaking in support of the measure from using vicious epithets attacking
the race or ethnicity of landlords or those who support the law. To the extent, however,
that the provision prevents disparaging but not complimentary remarks on race or
ethnicity, the law is still viewpoint based. But even if the speech restriction could fairly be
considered viewpoint-neutral in some theoretical sense, it would be unusual for a
supporter of an antidiscrimination measure to use inflammatory speech to “stir up racial
hatred,” and as such would have a discriminatory effect on those opposing the measure.
Cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 390–92 (1992) (finding law that forbids only
those “fighting words” that arouses “anger, alarm or resentment in others on the basis of
race, color, creed, religion or gender” constitutes viewpoint discrimination “in . . . practical
operation”). To account for the argument that the application of the British hate speech
law is technically viewpoint neutral, I refer to its discriminatory effect in analyzing its
impact on legitimacy.
80. I use the adjective “any” advisedly, for as discussed supra notes 25 and 43, there
is a substantial question whether people commonly obey the law just because it is the law,
especially laws with which they disagree.
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that the question is not whether the landlord has a moral duty not
to discriminate on the basis of race or ethnicity in providing
housing. There can be no question that such discrimination is
wrong.
81
Rather, the pertinent inquiry is whether the selective
imposition of civility norms has significantly diminished
82
or even
annihilated the landlord’s obligation to obey the law just because
it is the law,
83
or to use Waldron’s formulation, impaired the
landlord’s “political obligation” to obey the law.
84
The source and
weight of a normative political obligation to obey the law is, to say
the least, a contentious topic.
85
Indeed, many thoughtful observers
deny that we have an obligation to obey a law just because it is the
law.
86
For purposes of this analysis, however, and consistent with
what I suggested in Part II, I will assume that there is, in the
normative sense, at least a prima facie political obligation to obey
the laws of a society in which one has had opportunity to
participate as an equal in the political process.
87
The question then
becomes whether the selective imposition of civility norms
effectively imposed on the landlord impairs this obligation. The
answer depends on whether the discriminatory aspect of the law
can be adequately justified.
Use of epithets such as “cockroach” or “rat” to “stir up racial
hatred” might be reasonably thought more harmful than the use
81. Nothing in Waldron’s scenario suggests that application of the law to this
landlord would infringe some weighty countervailing interest such as freedom of religion.
Cf. cases discussed infra text accompanying notes 149–158 involving the observant
Christian hoteliers reserving double-bedded rooms for heterosexual married couples.
82. It can be argued that an obligation to obey the law is not a matter of degree. Peter
de Marneffe, for instance, remarked in reviewing a draft of this Article that one either has
or doesn’t have an obligation to obey a law. However, and consistent with the view that an
equal opportunity for political participation generates merely a prima facie rather than an
absolute obligation to obey the law, it seems perfectly sensible to speak of a stronger or
weaker obligation to obey a law. As a descriptive matter, the weakening of this sense of
obligation would likely lead to less compliance with the law. Normatively, it can make the
already contested existence of any obligation to obey a law just because it is the law even
more uncertain.
83. See supra note 25.
84. Id.
85. For an excellent compendium of various views on the subject, see THE DUTY TO
OBEY THE LAW (William Edmundson ed., 1999).
86. See, e.g., R
OBERT PAUL WOLFF, IN DEFENSE OF ANARCHISM 3–19 (1971);
M.B.E. Smith, Is There a Prima Facie Obligation To Obey the Law?, 82 Y
ALE L.J. 950
(1973).
87. For a classic and influential argument in favor of a prima facie obligation to obey
the laws, see John Rawls, Legal Obligation and the Duty of Fair Play, in L
AW AND
PHILOSOPHY, (Sidney Hook ed., 1964). For a more contemporary argument, see HUEMER,
supra note 22, at 137.
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548 CONSTITUTIONAL COMMENTARY [Vol. 32:527
of the same language in almost any other context within public
discourse. It is reasonable to assume, as Waldron asserts,
88
that
hate speech referring to people as animals we “normally seek to
exterminate,” contributes to making members of vulnerable racial
and ethnic minority groups unsure of their status in society. In
addition, when used as a means to “stir up racial hatred,” such
terms might fray relations between members of minority groups
and the rest of society. In contrast, other uses of these terms in
public discourse, while grossly offensive, not to mention inimical
to productive public discussion, do not pose these risks, or so a
legislature could reasonably conclude. Given these reasons for
especially targeting vituperative hate speech, together with the
landlord’s otherwise largely unrestricted opportunity to express
his vehement disagreement with the antidiscrimination law,
prohibiting him from using particularly vicious epithets that “stir
up racial hatred” in expressing this opposition would not seem to
destroy, or even substantially diminish, his prima facie political
obligation to obey the antidiscrimination measure.
3. Morality of Enforcement
It follows from this analysis that a law selectively prohibiting
the landlord from using vicious epithets to stir up hatred against
Pakistanis in opposition to the antidiscrimination measure does
not make it immoral for government to use force to make him
comply with this downstream law.
89
In light of the viewpoint-
discriminatory effect of the speech restriction and its negative
impact on the landlord’s interest in equal political participation,
the diminishment of normative legitimacy is not as trivial as
Waldron supposes. Still, it is not nearly substantial enough to
nullify the large moral benefit produced by forbidding the
88. Reasonable though this assertion may be, it should be noted that Waldron does
not cite any empirical studies supporting this assertion. Moreover, even if the use of vicious
racist epithets in public discourse contributes to some extent to the alienation of minorities,
it can be questioned just how significant a factor even the most vile epithets used in public
discourse are in causing such alienation as compared to discrimination in housing and
employment or harassment by law enforcement officials.
89. There is corresponding to this normative inquiry a descriptive question about the
morality of enforcing a law, namely, whether the person against whom it is enforced would
consider the enforcement moral. Since this inquiry would be very similar, if not identical,
to the question of whether this person feels a political obligation to obey the law, I will for
the sake of economy not consider this question separately in this Article. A related
descriptive inquiry that I also will not examine is whether the people as a whole, or some
substantial number of them, consider a particular application of the law to be moral.
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landlord from refusing people housing because of their race or
ethnicity.
90
B.
HATE SPEECH AND DEMOCRATIC PARTICIPATION
Waldron tentatively offers another argument supporting the
claim that suppressing the vituperative forms of hate speech does
not significantly diminish the legitimacy of downstream
legislation. He suggests that anyone who vituperatively denies
“the fundamentals of justice” such as “elementary racial equality”
or the “basic equality of the sexes” is not really engaged in some
“great national debate” about racial or sexual equality.
91
This is
because the debate about these “relatively settled points or
premises of modern social and legal organization” is “over—won,
finished.” So despite some “outlying dissenters” about the “well-
being, dignity, and security of formerly vulnerable minorities,”
society is “moving forward . . . as though this were no longer a
matter of serious or considerable contestation.”
92
I agree that at least in stable and mature democracies the
commitment to elementary racial and sex equality, as well as to
basic religious tolerance, is largely “settled” in the way Waldron
suggests.
93
But it does not follow from this observation that speech
contesting these largely settled norms can be suppressed with no
90. This conclusion is in accord with Dworkin’s view that although there is a deficit
in legitimacy arising from the ban on vituperative racist speech by those who oppose
antidiscrimination laws, “[o]n balance Britain is entitled to enforce such laws . . . .”
Waldron, Political Legitimacy, supra note 10, at 335 (quoting email from Ronald Dworkin
to Jeremy Waldron, Oct. 4, 2009, 21:34 EST (on file with Waldron)). The conclusion that
a ban limited to highly vituperative hate speech would not significantly impair normative
legitimacy, either with respect to the obligation to obey the law or the morality of its
enforcement, does not necessarily mean, however, that even such narrow provisions
should be enacted. As the discussion in Part IV.B will show, hate speech laws have
routinely been misapplied to speech not intended by the law to be within its coverage,
which not only imposes a heavy burden on those to whom the law was wrongfully applied
but likely “chills” the speech of others. But even if laws could with laser-like precision
suppress just the most vituperative hate speech while leaving more temperate expression
of bigoted ideas untouched, it still would not follow that such a ban is justified. Arguably,
the costs in terms of the substantial diminution of descriptive legitimacy combined with
the minimal effect on normative legitimacy might in a given democracy outweigh the
benefits of such restrictions.
91. Waldron, Political Legitimacy, supra note 10, at 336–37.
92. Id. at 337.
93. This is not quite yet the case with sexual orientation equality. So to the extent
that Waldron’s “settlement” argument is relevant to assessing the effects of speech
restrictions on political legitimacy, this argument would not yet be applicable to
suppression of speech contesting equality on the basis of sexual orientation.
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550 CONSTITUTIONAL COMMENTARY [Vol. 32:527
cost to legitimacy. This is because an individual has an interest in
expressing his or her views on a matter of public concern not just
in the hope of influencing others “but also just to confirm his or
her standing as a responsible agent in, rather than a passive victim
of, collective action.”
94
Suppose that after months of discussion the citizens of a small
town come to a firm consensus that they should raise the property
tax to support the local high school. Suppose further that this
discussion has been so exhaustive and long lasting and the
resulting consensus so firm that there can be no doubt that after
the final discussion scheduled at tonight’s town meeting the
citizens will vote overwhelmingly in favor of the tax increase. Still,
if the town’s lone dissenter was legally forbidden from speaking
against the tax increase or from voting at the meeting, the
“settled” nature of the issue would not substantially ameliorate,
95
and certainly would not cure, the diminution of legitimacy of the
increased tax levy as applied to the dissenter. Although this
dissenter may accept that she has no realistic prospect of altering
the decision, her exclusion from the decision making process
denied her “standing as a responsible agent in, rather than a
passive victim of, collective action.”
Relatedly, Waldron asserts that those who engage in
vituperative hate speech are not really trying to persuade
potential bigots of their beliefs but rather are attempting “to
create the impression that the equal position of members of
vulnerable minorities in a rights-respecting society is less secure
than is implied by the society’s actual foundational
commitments.”
96
It is not easy to be charitable to virulent racists,
so Waldron’s uncharitable characterization of the purpose of their
speech is understandable. Still, any fair examination of virulent
94. DWORKIN, supra note 5, at vii.
95. While the hope of persuading others is not the only value in having one’s say in
a discussion of a collective decision, it is still a “crucially important” interest. Id. It could
therefore be argued that where this hope is nonexistent the impact of denying this say is
somewhat less deleterious to downstream legitimacy at least in the normative sense.
96. Waldron, Political Legitimacy, supra note 10, at 337. This is a persistent though
unsupported assertion running through Waldron’s work on hate speech. See, e.g.,
W
ALDRON, HATE SPEECH, supra note 10, at 2, 5, 74. In Waldron’s view, a closely related
reason that speakers engage in virulent hate speech is to let other already confirmed bigots
know “that they are not alone in their racism or bigotry” in order “to contact and
coordinate with one another in the enterprise of undermining the assurance that is
provided in the name of society’s most fundamental principles.” Id. at 95; see also id. at
167.
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racist literature and Internet rants reveals that not all of it,
perhaps not even most of it, is published for the sole purpose of
making vulnerable minority groups feel less secure.
97
For one, it is
fairly obvious that some of these diatribes involve the venting of
anger, motivated not to so much to make minorities feel bad
(though the speaker would no doubt welcome this effect) but to
make the speaker feel better. In addition, it cannot seriously be
doubted that some of those who engage in hate speech in public
discourse at least some of the time are actually trying to increase
their ranks by attempting to persuade others of the validity of
their views.
This is not to deny, of course, that the primary purpose of
some vituperative hate speech is precisely to undercut the sense
of security among members of vulnerable minority groups. It is
worth noting though that when expression is primarily intended
to have this effect it is often targeted at individual members of a
minority group. An example of such targeted expression is placing
a burning cross on a black family’s lawn, speech that it not
protected even under American free speech doctrine.
98
In
contrast, it is not as obvious that such is the primary purpose of
expression disseminated to the public at large, such as on a racist
website or through other forms of public discourse.
99
Crucially, my
97. See, e.g., Intro Material for People New to Stormfront, STORMFRONT (Nov. 6,
2008, 7:46 PM), https://www.stormfront.org/forum/t538924/ (expressing a desire to educate
“Whites to see and accept the reality” of the “problems” the group faces); Our Positions,
W.A.R., http://www.resist.com/positions/ourpositions.htm (last visited Feb. 13, 2016)
(explaining the position that The White Aryan Resistance takes on minorities, political
issues, and religion); About Us, COMM. FOR OPEN DEBATE ON THE HOLOCAUST,
http://www.codoh.com/about/ (last visited on Feb. 13, 2016) (declaring that the “aim of this
site is promote intellectual freedom with regard to this one historical event called
‘Holocaust’ . . . . While we no longer believe the gas chamber stories . . . or the ‘genocide’
theory, we remain open to being convinced we are wrong”); see also W. Bradley Wendel,
“Certain Fundamental Truths”: A Dialectic on Negative and Positive Liberty in Hate-
Speech Cases, 65 L
AW & CONTEMP. PROBS. 33, 34, 66 (2002) (noting efforts of racist
organization “to market racism to children with a kids’ website featuring white-
supremacist games and puzzles—fun for the whole family!” and arguing that hate speech
“props up” “socially constructed ideology of racism” by “distancing people of different
races and perhaps subconsciously operating to convince them of the truth of racist
stereotypes”); Karmen Erjavec & Melita P. Kovačič, “You Don’t Understand This Is a New
War!” Analysis of the Hate Speech in News Web Sites’ Comments, 15 M
ASS COMM. & SOC’Y
899, 905, 909–14 (2012) (study exploring “the values and beliefs of producers of hate speech
comments on news websites and their motives and explanations for writing them”).
98. See R.A.V. v. City of St. Paul, 505 U.S. 377, 380 & n.1 (1992).
99. The purpose of some racist expression, such as a burning a cross at a Ku Klux
Klan rally visible to the general public in an area with a significant African American or
Asian population, is probably overdetermined, both “symboliz[ing] the supremacist
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552 CONSTITUTIONAL COMMENTARY [Vol. 32:527
claim that hate speech bans can compromise political legitimacy
is limited to restrictions on public discourse.
The biggest problem with Waldron’s critique, however, is not
that he somewhat underestimates the effect on legitimacy
resulting from bans on even particularly vituperative bigoted
expression. It is rather, as I shall now discuss, that he grossly
underestimates the extent of the restrictions actually imposed by
hate speech laws currently in force in most democratic countries.
IV. HATE SPEECH RESTRICTIONS IN CONTEMPORARY
DEMOCRACIES: THEIR SCOPE IN ACTUAL
OPERATION
Waldron, it will be recalled, asserts that hate speech bans in
democratic countries typically “bend over backward” to assure
that speakers have a lawful way to “express[] something like the
propositional content” of views that become illegal only “when
expressed as vituperation.”
100
While that may have been the intent
of some legislatures in passing these laws, a survey of these laws
as actually applied reveals that there is no such “safe haven”
101
for
temperate expression of bigoted ideas. Even more troubling, in
some instances these laws have been applied to speech that is
arguably not even bigoted. But no matter how this speech is
categorized, in too many cases it is speech that must be tolerated
in a free and democratic society and whose suppression has grave
implications for political legitimacy.
A.
HATE SPEECH LAWS IN ACTUAL OPERATION
Glimmerveen & Hagenbeek v. Netherlands
102
is a good
example of the actual extent of the restrictions on racist
expression imposed by hate speech laws. Johann Glimmerveen
was the president of Nederlandse Volks Unie, a far right Dutch
political party that advocated for “an ethnical homogeneous
ideology and the solidarity of those who espouse it” (Virginia v. Black, 505 U.S. 343, 377
(2003) (Souter, J. concurring)), as well as attempting to convey to members of these
minority groups who happen to see the symbol that their place in society “is less secure
than is implied by society’s actual foundational commitments.” Waldron, Political
Legitimacy, supra note 10, at 336–37.
100. Waldron, Political Legitimacy, supra note 10, at 335.
101. Id.
102. Glimmerveen and Hagenbeek v. Netherlands, App. Nos. 8348/78 and 8406/78,
[1980] 23 Y.B. Eur. Conv. on H.R. 366 (Eur. Ct. H.R.), http://www.bailii.org/eu/
cases/ECHR/1979/8.html.
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population” and against “racial mixing.” He was convicted of
inciting racial discrimination in violation of a Dutch hate speech
law
103
for possessing with intent to distribute leaflets addressed to
“white Dutch people” and containing the following message:
The truth is that the major part of our population since a long
time has had enough of the presence in our country of
hundreds of thousands of Surinamers, Turks and other so-
called guest workers, who, moreover, are not at all needed here
and that the authorities as servants of our people merely have
to see to it that these undesired aliens leave our country as soon
as possible. As soon as the Nederlandse Volks Unie will have
gained political power in our country, it will put order into
business and, to begin with will remove all Surinamers, Turks
and other so-called guest workers from the Netherlands.
104
Glimmerveen was sentenced to two weeks imprisonment and
his leaflets confiscated. After his conviction and sentence were
affirmed by the Supreme Court of the Netherlands, Glimmerveen
applied to the European Commission on Human Rights, invoking
the right to freedom of expression under Article 10 of the
Convention on Human Rights.
105
The Commission held his
application inadmissible. In holding that the conviction came
within Article 10’s exception for restrictions “necessary in a
democratic society,” the Commission relied on Article 17 of the
Convention,
106
which forbids any person or group to “engage in
103. Art. 137 (e) of the Dutch Criminal Code prohibits, inter alia,
[T]he expression of views that may be offensive for a group of people by reason
of their race, religion or other convictions or that incite to hatred against or
discrimination of or violent behavior towards people by reason of their race,
religion or other conviction unless these views are expressed for the purpose of
imparting information.
Wetboek van Strafrecht [Sr] [Criminal Code] art. 137(e) (Neth.).
104. Glimmerveen, 23 Y.B. Eur. Conv. on H.R. at 368.
105. Id. at 376. Article 10 of the Convention, entitled “Freedom of Expression,”
provides as follows:
Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers . . . .
The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the
judiciary.
E
UROPEAN CONVENTION ON HUMAN RIGHTS art. 10, Nov. 4, 1950, 213 U.N.T.S. 222.
106. Article 17, entitled “Prohibition of abuse of rights,” provides as follows:
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554 CONSTITUTIONAL COMMENTARY [Vol. 32:527
any activity . . . aimed at the destruction of any rights” guaranteed
by the Convention. The Commission stated that the purpose of
this provision was to “prevent totalitarian groups from exploiting
[the Convention] in their own interests.”
107
As odious as Glimmerveen’s racist ideas may be, he
expressed them with little vituperation and no use of epithets.
And there are numerous other cases that belie Waldron’s claim
that most hate speech laws create a “safe haven” for the
expression of the basic “propositional content of views that
become objectionable when expressed as vituperation.”
108
Indeed, examination of the actual operation of hate speech laws
in force in various jurisdictions reveal the mirror image of what
Waldron asserts: most hate speech laws make it quite difficult to
safely express the basic “propositional content” of bigoted views
even when expressed without vituperation or use of vicious
epithets. Let’s begin this survey with Britain, the locus of
Waldron’s racist landlord scenario, and which compared to most
other European countries has a long and admirable tradition of
freedom of speech.
Shortly after the attacks on the World Trade Center on
September 11, 2001, Mark Norwood, a regional coordinator of the
British National Party, a far-right political organization, placed in
the window of his flat in a small English rural town a poster
bearing the words: “Islam out of Britain” and “Protect the British
people” superimposed on a reproduction of a photograph of the
World Trade Center in flames and a crescent and star surrounded
by a prohibition sign.
109
Norwood was convicted of making
“abusive” and “insulting” statements likely to cause “harassment,
alarm or distress” to another person in violation of section 5 of
the Public Order Act 1986. He was, moreover, subject to an
increased penalty because the violation was found to be “racially
or religiously aggravated” under sections 28 and 31 of the Crime
and Disorder Act 1998 because “motivated (wholly or partly) by
Nothing in this Convention may be interpreted as implying for any State, group
or person any right to engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms set forth herein or at their limitation
to a greater extent than is provided for in the Convention.
Id. at art. 17.
107. Glimmerveen, 23 Y.B. Eur. Conv. on H.R. at 380.
108. Waldron, Political Legitimacy, supra note 10, at 335.
109. Norwood v. Director of Public Prosecutions, [2003] EWHC 1564 (Admin),
http://www.bailii.org/ew/cases/EWHC/Admin/2003/1564.html.
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hostility towards members of a racial or religious group based on
their membership in that group.”
110
The District Judge fined
Norwood £300, which the Divisional Court upheld, finding that
this expression “went beyond legitimate protest.”
111
Although the poster that Norwood displayed did not refer to
Muslims as “cockroaches” or “rats,” or, indeed, by any epithet,
the image of the World Trade Center in flames nevertheless
rendered the poster, if not precisely “vituperative,” at least
intemperate, not to mention inflammatory in two senses of the
word. The same cannot be said, however, of speech criticizing
homosexuality as immoral, but which has nonetheless been
suppressed in Britain.
A particularly egregious example is the conviction of Harry
Hammond, an evangelical preacher, for holding a placard while
he preached in a public square bearing the messages “Stop
Immorality,” “Stop Homosexuality,” “Stop Lesbianism,” and
“Jesus is Lord.”
112
For displaying this sign, Hammond was
convicted of making an “insulting” statement that caused
“distress” to others in violation of section 5 of the Public Order
Act 1986.
113
The trial court held that “[t]here was a pressing social
need” for suppressing Hammond’s expression because “there is a
need to show tolerance towards all sections of society.”
114
110. Id. at ¶¶ 1–4, 12–13. The prosecution argued that the poster suggested that
Muslims were not welcome in the Britain. Norwood and the Chairman of the BNP testified
that it referred to Muslim extremism and was a “slogan against creeping Islamification.”
Id. at ¶ 10.
111. Id. at ¶ 37. Norwood appealed to the European Court of Human Rights, which
declared his application inadmissible. The Court remarked that such a “general, vehement
attack against a religious group, linking the group as a whole with a grave act of terrorism,
is incompatible with the values proclaimed and guaranteed by the convention, notably
tolerance, social peace and non-discrimination.” Norwood v. UK, Appl. No. 23131/03, 16
November 2004. For a thoughtful discussion of the case, see Ivan Hare, Crosses, Crescents
and Sacred Cows: Criminalising Incitement to Religious Hatred [2006] Public Law 520–37.
112. See Hammond v. Department of Public Prosecutions, [2004] EWHC 69, ¶ 5
(Admin), http://www.bailii.org/ew/cases/EWHC/Admin/2004/69.html.
113. At the time Hammond was arrested and convicted, the Act provided in relevant
part that
[A] person is guilty of an offence if he (a) uses threatening, abusive or insulting
words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or
other visible representation which is threatening, abusive or insulting, within the
hearing or sight of a person likely to be caused harassment, alarm or distress
thereby.
Public Order Act 1986, UK ST 1986 c. 64 Pt I s. 5. The Act was subsequently amended to
remove “insulting.” See infra note 134.
114. Unlike Norwood, which involved a sentence enhanced because of the racial
motivation of the expression, Hammond’s conviction was not pursuant to a hate speech
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556 CONSTITUTIONAL COMMENTARY [Vol. 32:527
Accordingly, the court concluded that the message on
Hammond’s placard “went beyond legitimate protest.”
115
Hammond was fined £300 and his sign was subject to forfeiture.
116
Though “not without hesitation,” the Divisional Court dismissed
the appeal.
117
The appellate court specifically noted that
Hammond’s message was “not expressed in intemperate
language.” Nevertheless, the appellate court “came to the clear
conclusion” that because words on the sign “appear to relate
homosexuality and lesbianism to immorality” the lower court
could conclude that the message was “insulting” within the
meaning of the Act.
118
Another street preacher, Shawn Holes, when speaking on a
street in Glasgow about general Christian topics was asked by a
member of the audience what he thought about gays. He replied
that “homosexuals are deserving of the wrath of God, and so are
all other sinners, and they are going to a place called hell.” For
these remarks, Holes was arrested, placed in a police van and held
in jail for the night. The next day he was charged with breach of
the peace for “uttering homophobic remarks” “aggravated by
religious prejudice” and fined £1,000.
119
law per se but rather was under a general regulation of threatening, abusive or insulting
speech. Nonetheless, the quotation in text reveals that as applied to Hammond’s
expression, the law was effectively operating as a hate speech ban.
115. See Hammond, [2004] EWHC 69, ¶ 19.
116. Id.
117. Id. at ¶ 32–34.
118. Id. at ¶ 32. For a fuller discussion of the Hammond case, see James Weinstein,
Extreme Speech, Public Order, and Democracy: Lessons from the Masses, in E
XTREME
SPEECH AND DEMOCRACY 30–37 (Ivan Hare & James Weinstein eds., 2009).
119. Mark Hennessy, Street Preacher Fined for ‘Homosexuals Going to Hell’ Remark,
I
RISH TIMES (Mar. 31, 2010), http://www.irishtimes.com/news/street-preacher-fined-for-
homosexuals-going-to-hell-remark-1.646036. See also Preacher is Fined for Homophobia,
S
COTSMAN (Mar. 27, 2010), http://www.scotsman.com/news/preacher-is-fined-for-
homophobia-1-1365514. Although Holes denied criminality, he pleaded guilty and paid
the fine because he needed to leave for America to visit his sick father. Id.; see also Marian
Duggan, The Politics of Pride: Representing Relegated Sexual Identities in Northern Ireland,
61 N.
IR. LEGAL Q. 163, 174 (2010). A prominent gay activist condemned the suppression
of this speech, explaining that “[j]ust as people should have the right to criticise religion,
people of faith should have the right to criticise homosexuality. Only incitements to
violence should be illegal.” Arthur Martin, Gay Rights Campaigner Peter Tatchell Defends
‘Homosexuals Are Sinners’ Preacher and Slams £1,000 Fine as Heavy-Handed, D
AILY
MAIL (Mar. 30, 2010), http://www.dailymail.co.uk/news/article-1262310/Gay-rights-
campaigner-condemns-1-000-fine-preacher-said-homosexuality-sin.html. A number of
other street preachers have been arrested in the UK for similarly temperate criticism of
homosexual behavior. See infra text accompanying note 129.
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More recently, in Taunton, Somerset, yet another street
preacher, Michael Overd, was convicted of breach of the peace
and fined £200 for referring to homosexual conduct as an
“abomination,” citing Leviticus 20:13. The trial judge
acknowledged that Overd did not say anything about a penalty
for homosexual conduct. Nonetheless, the judge held that Overd’s
citation to Leviticus was “threatening” within the meaning of
Section 5 of the Public Order Act of 1986 because the passage
prescribes the death penalty for homosexual conduct. In the
judge’s view those wishing to cite the Bible in support of the view
that homosexuality is immoral should cite other passages that
condemn homosexuality without reference to the death penalty.
120
In other European democracies, the censorship is even more
far-reaching. In Austria, a speaker at an academic conference was
fined for saying that the Prophet Mohammad “had a thing for
120. John Bingham, Preacher Accuses Judge of ‘Redacting’ the Bible, TELEGRAPH
(Mar. 30, 2015), http://www.telegraph.co.uk/news/religion/11505466/Preacher-accuses-
judge-of-redacting-the-Bible.html. The judge expressed his concern that allowing those
condemning homosexuality to refer to Leviticus 20:13 would permit them to use this verse
as a “code word” to threaten homosexuals. Id.
The public square is not the only setting in Britain in which condemnation of
homosexuality is legally restricted. In 2004, OFCOM (formally, the Office of
Communications, the regulatory body with jurisdiction over television among other media
in the UK) upheld a complaint against Revelation TV, a UK-based Christian channel, for
what OFCOM described as “four minute polemic about [the presenter’s] views on
homosexuality in general as well as homosexuality within the Church,” sparked by the
recent appointment of openly gay Anglican bishops. OFCOM, Program Complaints
Bulletin 3 (June 28, 2004), http://stakeholders.ofcom.org.uk/binaries/enforcement/
broadcast-bulletins/pcb_12/pcb_pdf12.pdf. A viewer considered the presenter’s diatribe
“overtly homophobic and offensive” and filed a complaint with OFCOM. Revelation TV
responded that although it was “saddened that it had upset a viewer who felt that the
presenter had not respected their choice of lifestyle,” the presenter, an ordained minister
felt “compelled to speak out . . . in love and respect for others, allowing each person to
exercise their free will, to choose or not to choose, to take heed of any spiritual guidance
offered.” In upholding the complaint, OFCOM found that Revelation TV did not present
the views of Christians who did not share the presenter’s position, and that moreover the
presenter’s “comments about homosexuals were derogatory.” Accordingly, OFCOM
found the presenter’s comments to be in breach of the “Programme Code dealing with
respect for human dignity and avoidance of denigration of others’ beliefs.” Id. In 1999,
OFCOM’s predecessor, the Independent Television Commission, fined the God Channel,
a Christian cable and satellite television station, £20,000 for four breaches of an applicable
regulatory code, including for referring to homosexuality as “an abomination.” Response
to Freedom of Information Request re: Independent Television Commission
Determination from Dec. 20, 1999, OFCOM (Jan. 7, 2016), http://stakeholders.ofcom.
org.uk/binaries/foi/2016/january/1-312849543_ITC_1999.pdf. See Leigh, supra note 62, at
383.
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558 CONSTITUTIONAL COMMENTARY [Vol. 32:527
little girls,”
121
and a politician was fined and given a suspended
prison sentence for saying that in today’s society Mohammad
would be considered a child molester.
122
Similarly, a politician in
Finland was fined for referring to Mohammad as a “pedophile.”
123
In France, actress Bridget Bardot was fined for protesting on her
website the slaughter of sheep during a Muslim festival and
complaining that Muslims were destroying France by “imposing
their ways.”
124
In Spain, a television station was fined €100,000 for
running advertisements showing video clips of scantily-clad,
sexually-provocative participants in actual gay pride parades,
followed by a superimposed script asking “is this the society that
you want?” and ending with the question: “Proud? Of what?”
125
In evaluating the restriction on expressive activity resulting
from hate speech laws, we need to consider not just the cases, such
as the ones just discussed, in which the convictions or fines have
been upheld, but also cases in which the convictions were
overturned on appeal; or in which prosecutions were brought and
121. Brooke Goldstein & Benjamin Ryberg, The Emerging Face of Lawfare: Legal
Maneuvering Designed to Hinder the Exposure of Terrorism and Terror Financing, 36
F
ORDHAM INT’L L.J. 634, 642–43 (2013); see also Eugene Volokh, Austrian Court Upholds
Conviction for “Denigrating Religious Beliefs,” V
OLOKH CONSPIRACY (Dec. 27, 2011,
12:21 PM), http://www.volokh.com/2011/12/27/austrian-court-upholds-conviction-for-
denigrating-religious-beliefs.
122. See Jonathan Turley, Winter of Discontent: Far-Right Politician Convicted of
“Humiliating a Religion,” J
ONATHAN TURLEY (Jan. 24, 2009), http://jonathanturley.org
/2009/01/24/winter-of-discontent-far-right-politician-convicted-of-humiliating-a-religion/.
123. Soeren Kern, Finland’s War on Free Speech, G
ATESTONE INST. (June 11, 2012),
http://www.gatestoneinstitute.org/3107/finland-free-speech.
124. Brigitte Bardot Fined £12,000 for Radical Hatred After Claiming Muslims Are
Destroying France, D
AILY MAIL (June 3, 2008), http://www.dailymail.co.uk/tvshowbiz
/article-1023969/Brigitte-Bardot-fined-12-000-racial-hatred-claiming-Muslims-destroying-
France.html. In a recent decision, the Court of Cassation, France’s highest appellate court
for civil and criminal matters, affirmed sentences imposing substantial fines against
protestors urging the boycott of Israeli goods. The protestors had entered several
supermarkets wearing shirts bearing the message “Long live Palestine, boycott Israel” and
handed out fliers that said that “buying Israeli products means legitimizing crimes in
Gaza.” They were convicted under a law making it a crime to “provoke discrimination,
hatred or violence toward a person or group of people on grounds of their origin, their
belonging or their not belonging to an ethnic group, a nation, a race or a certain religion.”
JTA, France Court Upholds ‘BDS Is Discrimination’ Ruling, FORWARD (Oct. 23, 2015),
http://forward.com/news/breaking-news/323207/france-court-upholds-bds-is-discrimina
tion-ruling/; see also Willem v. France, App. No. 10883/05, Unreported July 16, 2009 (Eur.
Ct. HR), http://hudoc.echr.coe.int/eng?i=003-2803253-3069793 (holding that conviction of
French mayor for calling for a boycott of Israeli products did not violate the mayor’s
Article 10 right to freedom of expression).
125. Matthew C. Hoffman, Spanish Television Network Fined €100,000 for Criticizing
Homosexuality, L
IFE SITE (July 26, 2010), http://www.lifesitenews.com/news/spanish-
television-network-fined-100000-for-criticizing-homosexuality.
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failed; or where speakers were arrested but not prosecuted.
Although the speaker in these cases might ultimately be
vindicated, such misapplication of a hate speech ban obviously
placed a burden on the person arrested, prosecuted, or convicted.
Less obviously, but more significantly from the standpoint of the
impairment of the right to democratic participation, the
uncertainty created by such misapplication causes others who
want to express dissenting views about such matters as race,
ethnicity, or sexual orientation to “steer [wide] of the unlawful
zone”
126
or perhaps even to refrain from speaking altogether.
Examples of application of laws that have undoubtedly
caused such a “chilling effect” include: the conviction and fine of
€3,000, overturned on appeal, of a French politician for saying
that homosexual behavior was a threat to the survival of humanity
and “morally inferior” to heterosexuality;
127
the unsuccessful
prosecution of a Catholic bishop in Belgium for stating in a
magazine interview that he agreed with Freud that homosexuality
was a “blockage in normal psychological development, rendering
them abnormal;”
128
the arrest and jailing for seven hours of a
street preacher in England for saying that the Bible taught that
“homosexuality was a crime against the Creator;”
129
and the filing
126. Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (citation omitted).
127. Paul Belien, On Fascism and Homophobia, B
RUSSELS J. (Jan. 28, 2007),
http://www.brusselsjournal.com/node/1868.
128. Belgian Bishop Hauled Before Court for Church Teaching on Homosexuality
Cleared of Charges, O
NE NEWS NOW (June 6, 2008), http://onenewsnow.com/church/
2008/06/06/belgian-bishop-hauled-before-court-for-church-teaching-on-homosexuality-
cleared-of-charges.
129. Martha Evans, Christian Preacher Arrested for Saying Gays Were Sinful Has
Charges Dropped, T
ELEGRAPH (May 14, 2010), http://www.telegraph.co.uk/news/uknews
/7725797/Christian-preacher-arrested-for-saying-gays-were-sinful-has-charges-dropped.
html. Similarly, a street preacher in Birmingham was arrested for quoting the King James
Bible’s condemnation of homosexuals, along with fornicators, idolaters, adulterers as
“unrighteous.” The police department was subsequently ordered by a court to pay the
preacher damages for this arrest. See Steve Doughty, Payout for Anti-Gay Preacher Over
Arrest: Landmark Ruling in Christian’s Battle for Free Speech, D
AILY MAIL (Dec. 10,
2010), http://www.dailymail.co.uk/news/article-1337292/Payout-anti-gay-preacher-Antho
ny-Rollins-Landmark-ruling-free-speech-battle.html; see also Anti-Gay Leaflets Charge
Dropped, BBC
NEWS (Sept. 28, 2006), http://news.bbc.co.uk/2/hi/uk_news/wales/
5388626.stm (head of evangelical lobbying group arrested for refusing police order to cease
handing out leaflets at the entrance to Cardiff’s Mardi Gras gay and lesbian festival that
“quoted the Bible and that told gays: ‘Turn from your sins and you will be saved.’”); Lizzie
Parry, Arrested for Quoting Winston Churchill, D
AILY MAIL (Apr. 28, 2014),
http://www.dailymail.co.uk/news/article-2614834/Arrested-quoting-Winston-Churchill-
European-election-candidate-accused-religious-racial-harassment-repeats-wartime-
prime-ministers-words-Islam-campaign-speech.html (chairman of a right-wing British
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560 CONSTITUTIONAL COMMENTARY [Vol. 32:527
in France of criminal charges, later dropped, against
singer/songwriter Bob Dylan for stating in a Rolling Stone
magazine interview that “[i]f you got a slave master or Klan in
your blood, blacks can sense that. That stuff lingers to this day.
Just like Jews can sense Nazi blood and the Serbs can sense
Croatian blood.”
130
I do not mean to imply that arrests, prosecutions, or
convictions of those who temperately express racist ideas or
criticize homosexuality represent the typical hate speech case, for
they do not.
131
Rather, my point is that there are a sufficiently
political party arrested for failure to obey a police order to stop speaking and subsequently
re-arrested “on suspicion of religious or racial harassment” for quoting in a speech in front
of the Winchester Guildhall passages from a book by Winston Churchill strongly critical
of Islam; the charges were later dropped); Enza Ferreri, Charges Against Liberty GB
Leader Paul Weston are Dropped, L
IBERTY GB (June 11, 2014), http://libertygb.org.uk/
v1/index.php/home/root/news-libertygb/6444-charges-against-liberty-gb-leader-paul-west
on-are-dropped); Paul Bracchi, It May Have Been a Victory for Free Speech, But Why Did
Breakfast Insult of Muslim’s Faith Case Ever Come to Court?, D
AILY MAIL (Dec. 10, 2009),
http://www.dailymail.co.uk/news/article-1234680/It-victory-free-speech-did-breakfast-
insult-Muslims-faith-case-come-court.html (couple who ran a small hotel charged with
religiously aggravated violation of the Public Order Act of 1986 for stating during a
breakfast conversation with a guest wearing a hajib that Mohammad was a “warlord” and
that the guest was living in bondage; after prosecution costing £20,000, the trial judge
dismissed the case).
130. Inti Landauro & Noémie Bisserbe, France Drops ‘Hate Speech’ Case Against Bob
Dylan, W
ALL STREET J. (April 15, 2014), http://www.wsj.com/articles/SB10001
424052702303663604579503821936107510. Significantly, the prosecutor dropped the
charges not because she determined that Dylan’s statement did not constitute “public
insult and inciting hate” as charged but because a lengthy investigation determined that
Dylan did not authorize the interview to be published in France. Id. Consistent with this
finding, the publisher of the French edition of Rolling Stone was ordered to stand trial for
publishing the statement and if convicted faces up to one year in jail and a maximum fine
of €45,000. Id.
131. See, e.g., ‘Ku Klux Klan Golliwog Hanging’ Man Jailed, BBC
NEWS (Jan. 8, 2014),
http://www.bbc.com/news/uk-england-birmingham-25650201 (man convicted under
British hate speech law for posting online videos of himself dressed in Ku Klux Klan regalia
while hanging a life-sized “golliwog” doll); R. v. Andrews, [1990] S.C.R. 870 (Can.) (two
members of Canadian white supremacist organization convicted for possession of sticker
cards with message “Nigger go Home” among other racist and anti-Semitic statements);
R. v. Keegstra, [1990] 3 S.C.R. 697 (Can.) (a Canadian school teacher convicted for
referring to Jews, among other anti-Semitic slurs, as “child killers,”); Martin Wainwright,
Cabinet Rethinks Race Hate Laws After Jury Frees BNP Leaders, G
UARDIAN (Nov. 11,
2006), http://www.theguardian.com/media/2006/nov/11/broadcasting.farrightpolitics (a
leader of the British National Party tried for calling asylum-seekers “cockroaches”); Åke
Green Cleared Over Gay Sermon, L
OCAL (Nov. 29, 2005), https://web.archive.org/web/
20120218220008/http://www.domstol.se/Domstolar/hogstadomstolen/Avgoranden/2005/D
om_pa_engelska_B_1050-05.pdf (a Swedish pastor convicted for referring to “sexual
abnormalities” such as homosexuality as “a serious cancerous growth on the body of
society”); Andrew Higgins, Danish Opponent of Islam Is Attacked, and Muslims Defend
His Right to Speak, N.Y. TIMES (Feb. 27, 2015), http://www.nytimes.com/2013/02/28/world
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large number of such cases to show that most hate speech laws,
whatever their intent, manifestly do not in practice provide a “safe
haven” for expressing “something like the propositional content”
of bigoted views that become illegal only “when expressed as
vituperation.”
132
B.
EFFECT ON LEGITIMACY
Far from creating a “safe haven” for relatively temperate
expression of bigoted views, hate speech laws in many
democracies, together with the application of public order
provisions, make it risky for anyone even without vituperation to
publicly criticize homosexuality as immoral or disordered; to
condemn Mohammad for marrying a child; to decry the growing
influence of Islam or to denounce it as an immoral religion or one
incompatible with democracy; or to urge that immigration of
certain ethnic or religious groups be halted or guest workers
expelled. To be clear: I am not saying that someone who, for
/europe/lars-hedegaard-anti-islamic-provocateur-receives-support-from-danish-
muslims.html?_r=0 (Danish journalist convicted for saying that that “girls in Muslim
families are raped by their uncles, their cousins or their dad.”). The BNP member was
acquitted and the convictions of the Swedish pastor and Danish journalist were reversed
on appeal. BNP Leader Cleared of Race Hate, BBC
NEWS (Nov. 10, 2006),
http://news.bbc.co.uk/2/hi/uk_news/england/bradford/6135060.stm; Keith B. Richburg,
Swedish Hate-Speech Verdict Reversed, W
ASH. POST (Feb. 12, 2005),
http://www.washingtonpost.com/wp-dyn/articles/A17496-2005Feb11.html; Ann Snyder,
Danish Supreme Court Acquits Hedegaard, L
EGAL PROJECT (Apr. 21, 2012), http://www.
legal-project.org/blog/2012/04/danish-supreme-court-acquits-hedegaard.
132. Waldron, Political Legitimacy, supra note 10, at 335. Tellingly, this is true even of
the Racial Hatred Act 1995, the Australian provision that Waldron invokes as an exemplar
of hate speech laws that “bend over backwards” to create a “safe haven” for expression of
the basic “propositional content” of views that become “objectionable when expressed as
vituperation.” See, e.g., Eatock v. Bolt, 197 F.C.R. 261 (2011) (Austl.) (journalist convicted
for writing article criticizing what he saw as the trend of mixed-race, “fair skinned” people
emphasizing their Aboriginal roots to gain benefits available to Aborigines); Toben v.
Jones, 129 F.C.R. 515 (2003) (Austl.) (defendant convicted for distributing materials that
denied the existence of the Holocaust). Neither case involved the use of epithets or other
intemperate language. Closer to the kind of vituperation that Waldron claims the
Australian law and “most” laws against hate speech are meant to suppress was the
expression at issue in McGlade v. Lightfoot. 104 F.C.R. 205 (2000) (Austl.). In that case, a
legislator was convicted for proclaiming that “Aboriginal people in their native state are
the most primitive people on earth. If you want to pick up some aspects of Aboriginal
culture which are valid in the 21st Century, that aren’t abhorrent, that don’t have some of
the terrible sexual and killing practices in them, I would be happy to listen to those.” Id.
But even this vile expression, for which the legislator immediately apologized, is
considerably less intemperate than Waldron’s example of someone proclaiming that those
protected by antidiscrimination laws “are not better than the sort of animals we would
normally seek to exterminate, like rats or cockroaches.” Waldron, Political Legitimacy,
supra note 10, at 335.
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562 CONSTITUTIONAL COMMENTARY [Vol. 32:527
instance, without rancor publicly referred to homosexual activity
as immoral or as a psychological disorder would likely be arrested,
prosecuted or convicted. But given the well-publicized instances
of protestors being subject to a state’s criminal apparatus for such
temperate criticism, it is a fair inference that many people who
would have otherwise expressed these views refrained from doing
so due to a reasonable apprehension that they too might be
subject to these sanctions if they spoke their mind. The detriment
to political legitimacy arising from this significant impediment to
democratic participation is, pace Waldron, far from “minimal.”
133
To try to assess the extent of this detriment to political
legitimacy, I will focus on the effect on downstream
antidiscrimination measures worked by the upstream suppression
of speech critical of homosexuality. It is these restrictions, with
the punishment of anti-Islamic speech a close second, which in my
view constitute the most far-reaching and often unjustified
repression of political dissent in contemporary democracies. It is
true that the restrictions do not prevent citizens from publicly
opposing laws forbidding discrimination on the basis of sexual
orientation; rather, these laws only constrain people from publicly
making particular arguments in opposition that many
understandably find offensive and hurtful, not to mention wrong.
Still, the view that homosexual conduct is immoral or disordered
is precisely the reason that many opposed (and still oppose)
extending antidiscrimination laws to cover sexual orientation. The
speech restrictions discussed above thereby effectively prevented
these citizens from participating in the public discussion of a host
of antidiscrimination measures, as well as of proposals to extend
marriage to include same-sex couples, in an intellectually honest
and authentic manner.
134
In contrast, proponents of these
133. Id.
134. It may be that in the United Kingdom at least the most egregious restrictions on
anti-homosexual speech are in the past. For instance, the Public Order Act of 1986 has
been amended, effective February 2014, to remove “insulting.” P
UBLIC ORDER ACT 1986,
ARCHIBOLD CRIMINAL PLEADING EVIDENCE AND PRACTICE, § 29–41 (Sweet &
Maxwell, 63d ed. 2015) (1822). Even before this amendment, at least one of the street
preachers arrested for declaring homosexuality sinful had successfully sued for
compensation for wrongful arrest. See supra note 129. But see supra text accompanying
note 120 (street preacher arrested and convicted subsequent to this amendment for citing
to Leviticus 20:13 in support of his view that homosexual conduct is an “abomination”).
This somewhat greater protection of temperate dissent in Britain is commendable. It
cannot, however, undo the impairment of equal democratic participation that previously
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measures were free to express the full range of reasons for their
support. Accordingly, with regard to crucial matters of democratic
self-governance, dissenters were deprived of the equal
opportunity to participate in the political process.
1. Obligation to Obey the Law (Descriptive)
Some opponents of laws prohibiting discrimination on the
basis of sexual orientation who would have otherwise felt at least
a prima facie obligation to obey these laws just because they are
laws, might well due to legal restrictions preventing them from
expressing the reasons for opposing these measures feel no such
obligation to obey these antidiscrimination measures.
135
Such
annihilation of this sense of political obligation, moreover, is not
limited to those restrained from expressing their views in
opposition to a particular law under consideration. The intense
debate about homosexuality that took place in democratic
countries for the last several decades often focused not on a
particular piece of legislation. Rather, although often sparked by
some proposed law or change in policy, this public debate was
often a much more diffuse and far-ranging discussion about
whether homosexuality should be regarded as equally socially
acceptable as heterosexuality. Indeed, in every case discussed
above in which someone was arrested, tried, or convicted for
saying that homosexuality was immoral or pathological, the
speaker was not decrying a particular piece of proposed
legislation but was generally opposing what social conservatives
often refer to as the “homosexual agenda.”
Recently, in most liberal democracies, social conservatives
seem to have lost, or are well on the way to losing, this debate. As
a result of this profound and relatively rapid change in public
opinion, a host of laws prohibiting discrimination on the basis of
sexual orientation have been enacted, which in my view is a most
welcome development. However, for at least some of those
effectively prevented by force of law from expressing their views
in the discussion by which the public opinion about homosexuality
was formed, it is most likely that their sense of political obligation
to obey not just some particular piece of legislation but a host of
existed or repair any resulting diminution to the legitimacy of various downstream
antidiscrimination laws enacted during this period.
135. See supra notes 39–43 and accompanying text.
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564 CONSTITUTIONAL COMMENTARY [Vol. 32:527
downstream antidiscrimination laws has been diminished or even
annihilated.
2. Obligation to Obey the Law (Normative)
For those effectively prevented from even temperately
expressing in public the view that homosexuality is immoral or
disordered, any resulting feeling that they have no political
obligation to obey any antidiscrimination law seems both
reasonable and apt. This leads me to the troubling conclusion that
for many citizens the political obligation to obey
136
(as opposed to
a moral obligation not to engage in the prohibited behavior) a
potentially large number of downstream antidiscrimination laws
may as a normative matter have been annihilated by upstream
speech restrictions. In contrast, and consistent with my conclusion
above with respect to Waldron’s example of the landlord referring
to Pakistani immigrants as “cockroaches,” banning the use of
vicious epithets such as “fag” in public protests against
homosexuality,
137
or publicly referring to homosexuality as “a
serious cancerous growth on the body of society,”
138
would not,
despite some possibly significant detriment to descriptive
legitimacy, as a normative matter obliterate or even significantly
diminish anyone’s political obligation to obey laws forbidding
discrimination on the basis of sexual orientation. This is because,
as Waldron observes, bans limited to such highly vituperative
speech allow speakers to express the basic “propositional
136. That is, to obey these laws qua laws or just because they are laws. See supra note
25.
137. Cf. Snyder v. Phelps, 562 U.S. 443, 448 (2011) (upholding right of protestors to
display signs, including one reading “God Hates Fags,” in protest near funeral of United
States serviceman killed in the line of duty). Just because banning the use of such epithets
in public discourse would not significantly interfere with the political obligation to obey
the law as a normative matter does not necessarily mean that doing so would be justified.
For one, such a ban might undermine the obligation to obey the law in its descriptive sense.
In addition, there is the practical problem of determining which terms are sufficiently
vituperative to warrant punishment and which should be allowed as part of public
discourse.
138. Högsta Domstolen [HD] [Supreme Court] 2005-11-29 B 1050-05 (Swed.),
translated in Judgment Case No. B 1050-05, The Supreme Court of Sweden
(Nov. 29, 2005),
https://web.archive.org/web/20120218220008/http://www.domstol.se/Domstolar/hogstado
mstolen/Avgoranden/2005/Dom_pa_engelska_B_1050-05.pdf. It should be noted that this
vile reference was made as part of a sermon in church and thus raised freedom of religion
issues in addition to freedom of speech concerns.
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content” of the ideas they want to convey.
139
In addition, and as
discussed above,
140
such bans can be supported by good reasons.
However, between the two poles of highly vituperative and
decidedly temperate opposition to homosexuality lies a large
range of expression. As the restrictions on criticism of
homosexuality move along this spectrum from the vituperative to
the temperate, there is a corresponding diminution of the political
obligation of those constrained by the speech restriction to obey
downstream measures outlawing discrimination on the basis of
sexual orientation.
Admittedly, only laws that constrain speech at the
“temperate” end of this spectrum can as a normative matter
destroy rather than merely diminish the political duty to obey
downstream antidiscrimination laws. But as Waldron correctly
emphasizes, the effect of speech restrictions on the legitimacy of
downstream laws is “a matter of degree.”
Accordingly, any
assessment of the effect of these restrictions on the obligation to
obey a downstream law must account not just for the minimal
effect resulting from restrictions on extremely vituperative
speech, on the one hand, and the possible annihilation of this
obligation worked by restrictions on temperate speech, on the
other. Rather, this assessment should take into consideration the
full range of detrimental effects on legitimacy resulting from
speech restrictions between these two poles. Of particular
concern are those laws that suppress expression such as the
newspaper editorial by a Canadian pastor declaring that
“[h]omosexual rights activists and those that defend them, are just
as immoral as the pedophiles, drug dealers and pimps that plague
our communities.”
141
Uncivil and hyperbolic expression such as
this is, alas, all too common in public discourse in many
contemporary democracies. While selective suppression of such
uncivil speech about homosexuality might not as a normative
matter annihilate the political obligation of those whose speech
was constrained to obey downstream laws forbidding sexual
orientation discrimination, it significantly diminishes this
obligation.
139. See Waldron, Political Legitimacy, supra note 10, at 335.
140. See supra text accompanying note 88.
141. Lund v. Boissoin, 2012 A.B.C.A. 300, ¶ 4 (Can.), http://www.canlii.org/en/ab/
abca/doc/2012/2012abca300/2012abca300.pdf.
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3. Morality of Enforcement
We come now to the effect of these speech restrictions on
legitimacy in its most vital sense—the morality of the use of
coercion to enforce a law. While some may question whether we
have, normatively speaking, any political obligation to obey the
law,
142
few would deny that forcing people to comply with a law
with which they disagree requires moral justification, especially
when the disagreement, though not necessarily correct, is at least
reasonable. As discussed, one powerful (though concededly not
always sufficient) justification for the use of coercion to enforce
laws against such dissenters is that they had an adequate
opportunity to participate in the process by which the law was
enacted.
143
So, does an upstream speech restriction which
effectively forbids someone from publicly proclaiming, without
invective or use of loathsome epithets, that homosexuality is sinful
or immoral or results from a psychological disorder, make it
immoral to enforce against such a dissenter a downstream law
prohibiting discrimination on the basis of sexual orientation? The
answer to this question depends on the moral status of such
enforcement when the moral deficit created by the upstream
speech restriction is accounted for.
Fortunately for legitimacy in its most crucial sense, the
enforcement of downstream antidiscrimination laws against those
who were prevented by upstream speech restrictions from
expressing even temperate criticism of homosexuality usually
remains morally justified due to the substantial moral weight of
these downstream laws. For instance, most coercive applications
of a law prohibiting sexual orientation discrimination in places of
public accommodation would remain moral even when the
significant moral deficit arising from the constraint of the
upstream law is taken into account. This would be true, say, of a
restaurant proprietor who in violation of the law refused service
to homosexuals, or of a theater owner who refused to admit gay
people, even if these proprietors had been prevented from
expressing in public discourse the view that homosexuality is
sinful or disordered. Crucially, however, where the moral valence
of the application of antidiscrimination is equivocal or uncertain,
the enforcement of the law might well be rendered immoral by
142. See, e.g., HUEMER, supra note 22, at 16–17 (denying that “anyone [is] obligated
to obey a law merely because it [is] the law”); see also supra note 80.
143. See supra text accompanying notes 35–45.
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upstream speech restrictions. This situation is most likely to occur
where the application of the antidiscrimination measure infringes
some particularly strong countervailing individual interest such as
freedom of conscience and religion.
To demonstrate this possibility, I offer what I shall call the
Evangelical Photographer (“EP”) Scenario. Suppose that Elaine,
an evangelical Christian who makes her living as a commercial
photographer in a European democracy with restrictions on
speech critical of homosexuality such as described in Part IV.A,
wants to protest a proposed law forbidding discrimination on the
basis of sexual orientation in places of public accommodation. She
has prepared a sign that she plans to carry in a protest outside the
national legislature which reads: “Stop Immorality Now! Say ‘No’
to the Homosexual Agenda.” As Elaine is about to leave for the
protest, a member of her congregation accurately advises her that
several people in her country have been arrested, and some
successfully prosecuted, for making similar statements as part of
a public protest. Elaine therefore concludes that displaying such a
sign is too risky. Unable safely to express her authentic reasons
for opposing the proposed law, she decides not to participate in
the protest. Several weeks later, the law is approved by the
legislature.
In the many years she has been in business, Elaine has
willingly made photographic portraits of gay people, including
couples. She has, however, persistently refused requests to
photograph same-sex weddings or commitment ceremonies
because she does not want to use her skills to document, and does
not want to participate in, an activity she believes to be sinful and
contrary to God’s commandments. Soon after the
antidiscrimination law passes, a lesbian couple asks Elaine to
photograph their wedding but she declines to do so. As a result,
she is summoned to appear before her country’s Human Rights
Tribunal and is ordered to photograph the wedding. She refuses
to comply with the order and is fined €1,000. She is warned that
any future violation of the antidiscrimination law will result in
harsher penalties, including the possibility of imprisonment. Did
the upstream speech restrictions preventing Elaine from publicly
expressing her reasons for opposing the antidiscrimination
measure render immoral its application to her? I believe this may
well be the untoward effect of the speech restrictions.
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This scenario is based in part on an actual American case
involving a photographer who refused on religious grounds to
photograph a same-sex commitment ceremony in violation of a
New Mexico law forbidding discrimination on the basis of sexual
orientation in places of public accommodation.
144
The case
involved a clash of important individual interests. On the one
hand, the law not only protects the interests of homosexuals by
assuring them access to goods and services in places of public
accommodation but also sends an important message affirming
the equal right of all people to freely participate in public life
regardless of their sexual orientation. It is also significant that the
photographer was operating a commercial enterprise open to the
general public. On the other hand, the application of this law to
the photographer substantially burdens her sincerely held
religious beliefs. And just as one’s sexual orientation is for most
people essential to their identity, so for many people are their
religious commitments. In addition, some religious people believe
that participating in biblically condemned activities may have
negative consequences for them in the afterlife.
145
It is not
surprising, then, that an American Civil Liberties Union lawyer
who filed a brief supporting the application of the
antidiscrimination law to the photographer admitted that the case
involved “difficult choices.”
146
It is in cases like this involving competing moral claims that
the interest in equal political participation can become crucial.
The photographer in the actual case had a securely protected First
Amendment right to publicly oppose the antidiscrimination
measure for any reason she wanted to express, including the view
that homosexuality is immoral or disordered, and to do so either
temperately or vituperatively.
147
With important individual
144. See Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013). The
photographer claimed that the application of this antidiscrimination provision to her
refusal to photograph a same-sex commitment ceremony violated her rights of free speech
and free exercise of religion guaranteed by the First Amendment to the United States
Constitution, as well as violating a state law protecting certain exercises of religion liberty.
145. Also relevant to the balance of interests was the ready availability of other
photographers willing to photograph the commitment ceremony. See Appellant’s Brief at
23–24, Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013) (No. 33, 687), 2012
WL 5990629.
146. Adam Liptak, Can Photographer Reject Gay Couple’s Request?, N.Y.
TIMES,
Nov. 19, 2015, at A14.
147. See Snyder v. Phelps, 562 U.S. 443, 448 (2011) (upholding right of protestors to
display signs, including one reading “God Hates Fags,” in protest near funeral of United
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interests on both sides, the photographer’s opportunity
authentically and vigorously to express her opposition to
antidiscrimination measure on an equal basis with other citizens
arguably becomes a decisive factor, making moral the use of
coercion to enforce this law against her.
148
Conversely, because
the photographer in the EP scenario was effectively forbidden
from expressing her authentic reasons for opposing the
antidiscrimination measure, while supporters of the law faced no
such constraint, this restriction on her opportunity to participate
as a political equal arguably becomes determinative, rendering
immoral enforcement of the law against her.
Admittedly, the EP Scenario is in some sense a “worst case”
one for political legitimacy, combining as it does a speech
restriction that significantly impairs the ability of a person to
protest a downstream law that is then applied to her in way that
infringes some particularly weighty interest. But regrettably for
the legitimacy of antidiscrimination laws in countries with hate
speech restrictions, the EP Scenario is not farfetched. Rather,
there are already on the books cases that have most of the
relevant elements of the Scenario. In Britain, for example, there
have been cases in which devout Christian innkeepers have been
found liable under antidiscrimination laws for refusing to rent
double-bedded rooms to gay couples.
One such case involved Susanne Wilkinson, a proprietor of a
bed and breakfast in Berkshire.
149
Wilkinson, who believes that
the Bible is the word of God, placed Bibles and displayed biblical
tracts in every room of her house, including the ones occupied by
guests. In accordance with her beliefs, Wilkinson restricted the
use of rooms with double beds to married heterosexual couples.
She was sued under the Equality Act (Sexual Orientation)
Regulations 2007 (“the Equality Regulations”)
150
by Michael
States serviceman killed in the line of duty); see also supra note 71; James Weinstein, An
Overview of American Free Speech Doctrine and Its Application to Extreme Speech, in
E
XTREME SPEECH AND DEMOCRACY 82 (Ivan Hare & James Weinstein eds., 2009).
148. Which is not to say that the decision was necessarily legally correct. As I have
emphasized, in addition to a crucial normative dimension, the correct answer to any
difficult legal case of involves consideration of doctrinal “fit.” See Weinstein, supra note 5,
at 380–83.
149. Black v. Wilkinson, [2013] E.W.C.A. Civ. 820 (Eng.), http://www.bailii.org/ew/
cases/EWCA/Civ/2013/820.html.
150. The regulations prohibit discrimination on the basis of sexual orientation in the
provision to the public of goods, facilities, or services. Equality Act (Sexual Orientation)
Regulations, 2007, S.I. 2007/1263, art. 3 (U.K.).
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Black and John Morgan, a gay couple not in a civil partnership,
151
for discrimination on the basis of sexual orientation for refusing
to let them occupy a double-bedded room in her house.
Wilkinson asserted, among other defenses, that the
application of this regulation to her in these circumstances
violated her right to freedom of thought, conscience and religion
recognized by Article 9 of the European Convention on Human
Rights,
152
as well as her right of private and family life recognized
by Article 8 of the Convention.
153
The trial court rejected these
defenses and ordered Wilkinson to pay £3,600 in damages.
154
Although it affirmed this decision, the Court of Appeal aptly
noted that like “the right of a homosexual not to suffer
discrimination on the grounds of sexual orientation . . . the
freedom to manifest one’s religion or belief” is also an “important
human right.” The Court also observed that neither of these
important rights “is intrinsically more important than the other.
Neither in principle trumps the other. But the weight to be
accorded to each will depend on the particular circumstances of
the case.”
155
In a similar case, the Supreme Court of the United Kingdom
upheld a discrimination claim against Peter and Hazelmary Bull,
who in accordance with their religious beliefs reserved double-
bedded rooms in their small private hotel for heterosexual
151. These events took place in 2012, a year before same-sex marriage was recognized
in England. Civil partnership had been available to same-sex couples in the United
Kingdom since 2004. See Department of Trade and Industry, Explanatory Notes to Civil
Partnership Act 2004 (c. 33) (U.K.).
152. Article 9 of the Convention provides in pertinent part:
Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom . . . to manifest his religion or belief, in worship, teaching and
observance.
Freedom to manifest one’s religion or beliefs shall be subject only to such
limitations as are prescribed by law and are necessary in a democratic society . . .
for the protection of the rights and freedoms of others.
E
UROPEAN CONVENTION ON HUMAN RIGHTS art. 9, Nov. 4, 1950, 213 U.N.T.S. 222.
153. Article 8 of the Convention provides in pertinent part:
Everyone has the right to respect for his private and family life . . . .
There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society . . . for the protection of the rights and freedoms of others.
Id. at 8.
154. Lizzy Davies, Christian Who Refused to Let Gay Couple Stay at B&B Ordered to
Pay Damages, G
UARDIAN (Oct. 18, 2012), http://www.theguardian.com/world/2012/oct/
18/christian-gay-couple-ordered-pay-damages.
155. Black, at ¶ 35.
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married couples.
156
The Bulls were sued by Steve Preddy and
Martyn Hall, two men in a civil partnership, for violation of the
Equality Regulations. Though affirming the discrimination claim,
the Supreme Court, like the Court of Appeal, recognized the
competing fundamental interests at stake. In the lead opinion,
Deputy President Hale wrote:
The issues in discrimination law are difficult enough, but there
are also competing human rights in play: on the one hand, the
right of Mr and Mrs Bull (under article 9 of the European
Convention for the Protection of Human Rights and
Fundamental Freedoms) to manifest their religion without
unjustified limitation by the state; and on the other hand, the
right (under article 14) of Mr Preddy and Mr Hall to enjoy their
right (under article 8) to respect for their private lives without
unjustified discrimination on grounds of their sexual
orientation.
157
Later in this opinion, Lady Hale, quoting from a judgment of
the European Court of Human Rights, refers to the freedom of
thought, conscience, and religion as “one of the foundations of a
democratic society,” noting that its “religious dimension” is “one
of the most vital elements that go to make up the identity of
believers and their conception of life.”
158
Like the EP scenario, both of these actual cases present a
close moral question, pitting fundamental liberty interests “vital
. . . to . . . the identity” of the parties against each other. If the
defendants in these cases had an opportunity equal to that of
those in favor of the Equality Regulations to publicly express their
views about the regulation, then in light of the commercial nature
of their activity, a strong case could be made that it was, on
balance, moral to coercively apply these regulations to them
despite the burden on their freedom of conscience and religion.
Unfortunately, the defendants in neither of the British cases had
such an opportunity. Rather, as documented in Part IV.A, above,
if they had protested the promulgation of these Equality
Regulations by proclaiming in the public square the view that
homosexuality was sinful or immoral, there was a realistic chance
that they would have been ordered by the police to stop speaking.
156. Bull v. Hall, [2013] U.K.S.C. 73, https://www.supremecourt.uk/cases/docs/uksc-
2012-0065-judgment.pdf.
157. Id. at ¶ 5.
158. Id. at ¶ 41 (quoting Bayatyan v. Armenia (2011) 54 E.H.R.R. 467, 494 (Grand
Chamber)).
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And if they had refused such an order, it is virtually certain that
they would have been arrested, likely tried and possibly convicted
for expressing views that, as the Court of Appeal had earlier
decreed, failed to “show tolerance towards all sections of society”
and therefore went “beyond legitimate protest.”
159
In any event, whether or not these hoteliers would have in
fact been subject to such legal constraints for expressing these
views in public, it would have been reasonable for them to fear
such consequences and for that reason decide not to publicly
protest the law. Accordingly, a powerful argument can be made
that these upstream restrictions on the defendants’ ability to
“participate as political equals” in the public discussion on a
matter that had “important consequences for their individual and
collective interest”
160
rendered immoral enforcement of the
antidiscrimination law against them.
Indeed, the only salient difference between these actual cases
and the EP Scenario is that, unlike Elaine, there was no evidence
in the record that the British innkeepers ever had any specific
desire to protest the antidiscrimination regulations but were
deterred from doing so by hate speech laws. This difference
obviously has a significant bearing on the legitimacy of the
downstream antidiscrimination measures as a descriptive matter.
Speech restrictions that have actually deterred people from
protesting a proposed law are particularly likely to diminish,
perhaps even destroy, any feeling of political obligation these
dissenters might have otherwise had to obey the law.
161
It is not
clear, however, that this difference should have any bearing on
legitimacy as a normative matter, including the morality of the use
of coercion to enforce the downstream regulation. Rather, in
accord with the objective focus of normative legitimacy, it would
seem that the pertinent inquiry is whether dissenters against
whom the state is enforcing the law had an equal opportunity
along with other citizens to express their views in opposition to
the law.
A somewhat less obvious but actually more relevant
difference is that upstream speech restrictions in the EP Scenario
are more extensive than in the actual British hotelier cases. As
159. Hammond v. Director of Public Prosecutions, [2004] E.W.H.C. 69, ¶ 19 (Admin)
(Eng.), http://www.bailii.org/ew/cases/EWHC/Admin/2004/69.html.
160. D
AHL, supra note 35, at 5.
161. See supra notes 39–43 and accompanying text.
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unjustified as the application of laws restraining protestors in the
public square or on street corners from criticizing homosexuality
as immoral may be, Britons are generally free to express these
views in other settings, such as books, magazines, newspapers, or
Internet blogs.
162
The EP Scenario, in contrast, at least implicitly
posited the broader range of restrictions on hate speech, including
on anti-homosexual speech, that exist in many other democracies.
For this reason, the impairment of Wilkinson’s and the Bulls’
opportunity for equal participation was not as severe as the
restrictions on the photographer’s participatory interests in the
EP scenario.
163
Still, the value of expressing one’s view on the street corner
or in the village square should not be underestimated. Unlike
publishing a book or a magazine or even blogging on the Internet,
protesting in the street is an effective means available to people
with few resources to expose the public to one’s views. In addition,
unlike other settings for public discourse, which have increasingly
become “echo chambers” for opinions with which the audience
already agrees, the public square is a place where dissenters can
expose people to unfamiliar points of views “in the hope of
influencing others.”
164
So while the detriment to the legitimacy of the application
Equality Regulations worked by British speech restrictions may
not be as great as in the EP Scenario, they are significant enough
to possibly change the moral valence of the enforcement of these
regulations from positive to negative. But even if these upstream
speech restrictions did not render immoral enforcement of the
downstream antidiscrimination measure against these
innkeepers, they nonetheless diminished the moral justification
for infringing their right of conscience and religion. As Ronald
162. Though apparently not on television. See the Revelation TV and God Channel
cases discussed supra note 120.
163. It might also be argued that the infringement of the right of conscience and
religion was more severe in the EP Scenario than in the actual British hotelier cases. This
is because a wedding photographer is often effectively a participant in the ceremony, while
an innkeeper who provides a double-bedded room to a couple is at most facilitating sexual
activity that the hotelier thinks is sinful. There is something particularly onerous about
being forced to choose between one’s livelihood and participating in a ceremony deeply at
odds with one’s sincerely held religious beliefs. On the other hand, the British bed and
breakfast case required the Christian proprietor to facilitate this activity in her own home,
which adds a dimension of personal privacy not present in the EP Scenario.
164. D
WORKIN, supra note 5, at vii.
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Dworkin aptly observed, such substantial impairment of political
legitimacy is something to regret.
165
Of course, it will often not be possible to determine with
certainty whether the moral deficit of an upstream speech
restriction renders immoral what would be an otherwise moral
enforcement of a downstream law. This is because upstream
speech restrictions aside, the morality of downstream legislation
is frequently an issue about which people can reasonably disagree.
This is particularly true, where, as in the EP Scenario and the two
British hotelier cases, the enforcement of a law enacted to
promote the fundamental interests of some people significantly
burdens important interests of others. Such reasonable
contestability about the morality of enforcing downstream
legislation, however, itself has significance for the moral
calculation. For it means that in any situation in which the
morality of enforcing a downstream law can reasonably be
questioned, any substantial upstream restriction on the
opportunity of citizens to have their “say” about the proposed law
may well render immoral the enforcement of that law against
them.
C. C
OUNTERVAILING LEGITIMACY ARGUMENTS
Finally, there remains to be considered various arguments
that hate speech bans can actually promote political legitimacy,
165. Id. Many laws, of course, do not purport to directly bind citizens through coercive
means, as is the case, for instance, with laws recognizing same-sex marriage or governing
immigration. As a result, upstream speech restrictions cannot deprive these downstream
laws of legitimacy in the sense of obligation to obey these laws or the morality of using
coercion to enforce these provisions against those whose speech was restricted. Still,
selective exclusion of people from participation in the public debate about such issues as
same-sex marriage or which immigrants are admitted to the country can have a deleterious
effect on legitimacy of the entire legal system. Descriptively, people who have been denied
the opportunity to participate as a political equal in a public discussion as crucial to society
as the definition of marriage or immigration policy may feel less of an obligation to obey
the laws of that society that do directly bind them, or even no duty at all to do so. As a
normative matter, in contrast, to the extent that a right of democratic participation
generates a duty to obey the laws of that society, even speech restrictions as grievous as
some of those discussed in this Article, do not destroy the general duty to obey the laws of
that system or entitle people in these countries to “rise up in revolution.” See Waldron,
Political Legitimacy, supra note 10, at 332. Nonetheless, because these restrictions impede
the fundamental interest in the opportunity of equal participation on critical issues, they
do to some degree diminish this general obligation, or to use Dahl’s term, reduce the legal
system’s legitimacy “reservoir,” on which the morality of the entitlement to govern and
the use of coercion depends. See Weinstein, supra note 5, at 368; R
OBERT A. DAHL,
P
OLYARCHY: PARTICIPATION AND OPPOSITION 148–49 (1971).
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an effect that accordingly mitigates or perhaps completely offsets
the claim that hate speech bans diminish or destroy legitimacy. In
a recent book, Alexander Brown deploys such arguments both
against Dworkin’s claim that hate speech laws can spoil the
legitimacy of downstream legislation as well as Post’s view that
such laws can impair systemic legitimacy.
166
In his discussion of Dworkin’s claim that upstream hate
speech restrictions can spoil the legitimacy of downstream
antidiscrimination laws, Brown quotes Waldron’s response that
because hate speech restrictions protect “the basic social standing
. . . of members of vulnerable groups . . . the complaint that
attempting to secure this dignity damages the legitimacy of other
laws may be much less credible as a result.”
167
Expanding on
Waldron’s argument, Brown observes:
Presumably what makes this complaint much less credible is
the belief that a relatively minor reduction in the collective
authorization of downstream laws and policies can be justified
on the basis of serious considerations that justify the upstream
laws. In other words, political legitimacy has greater but not
absolute weight in comparison to other goods or values,
meaning that a sufficiently large extent of the realization of
other goods or values, most notably the assurance of civic
dignity, can be of equal or greater value than the realization of
political legitimacy.
168
Brown concedes, however, that a “fairly obvious reply” to
this line of argument is that “the goods or values of political
legitimacy and the assurance of civic dignity cannot be traded off
against each other in this sort of way” because political legitimacy
“is not the sort of thing that can be placed on balancing scales with
things other than itself.”
169
To meet this objection, Brown suggests
that political legitimacy, including legitimacy of the legal system,
“itself depends upon its being possible, at least in principle, to
justify that system to each citizen bound by it on the basis of
fundamentals of justice that they cannot reasonably reject.”
170
On
this view of political legitimacy, Brown continues, it might be
argued that members of vulnerable minority groups could
166. BROWN, supra note 18, at 201–14.
167. Id. at 207, quoting Jeremy Waldron, Dignity and Defamation: The Visibility of
Hate, 123 H
ARV. L. REV. 1596, 1646 (2010).
168. Id.
169. Id.
170. Id. at 208.
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reasonably reject the justification that hate speech laws “may put
at risk the collective authorization and political legitimacy of
downstream laws from which you benefit” as a sufficient reason
for the state to choose not to “utilize the measures at [its] disposal
to curb forms of hate speech that can be corrosive of . . . your
reputation, status and dignity as members of society in good
standing.”
171
In other words, “assurance of civic dignity is
constitutive of the realization of political legitimacy.”
172
Accordingly, his argument in favor of hate speech restrictions is
being made not as a tradeoff between legitimacy and other goods
or values but rather “from the sole perspective of political
legitimacy.”
173
There are several problems with Brown’s attempt to locate
legitimacy on both sides of the equation. To begin with, he stacks
the deck in formulating the question to be posed hypothetically to
vulnerable minorities. If this Article has demonstrated anything,
it is that hate speech laws as they actually exist, and of the type
that Brown thinks justified,
174
present much more than some
“risk” to “collective authorization and legitimacy of downstream
laws” from which members of these groups benefit. Nor, contrary
to Brown’s exposition of Waldron’s erroneous view, have they
resulted in only “relatively minor reduction in the collective
authorization of downstream laws.” Rather, as discussed in
subsections B and C of this Part, their effect on legitimacy, both
in the normative and descriptive sense, is substantial. In light of
such significant detriment to political legitimacy, even if one
accepts hypothetical consent as the basis of political legitimacy,
there is a very real question whether Brown’s hypothetical
interlocutors could reasonably consider the failure of a
jurisdiction to enact broad hate speech prohibitions of the type
Brown defends as contrary to “the fundamentals of justice.”
175
171. Id.
172. Id.
173. Id.
174. Thus far beyond the ban on highly vituperative hate speech that Waldron thinks
might be justified, Brown defends bans on group defamation (sensu stricto) and on
incitement to racial hatred, id. at 214. Despite the seemingly limited scope of such laws,
they have, as I have demonstrated, been used to impair, and perhaps in some cases destroy,
the legitimacy of downstream antidiscrimination laws. See subparts A and B of this Part.
175. Concededly, even if as an objective matter such a view was unreasonable and
therefore the failure to enact hate speech laws did not impair legitimacy in the normative
sense, that failure might well impair descriptive legitimacy for some members of vulnerable
minority groups.
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Second, even on the assumption that failure to enact hate
speech laws does compromise legitimacy, it is, as Brown notes, the
legitimacy of “the legal system” that has been diminished, not the
obligation to obey or the morality of an enforcement of a
particular law or laws. The diminution
176
in legitimacy that Brown
claims would result from not enacting hate speech laws might be
a good rebuttal to the claim that hate speech laws diminish
systemic legitimacy. This is because the allegedly competing
legitimacy concerns would then be commensurable to the extent
that they are both systemic.
177
It is difficult, however, to weigh a
loss to systemic legitimacy against a detriment to the legitimacy of
a particular law. The work done by these two types of legitimacy
is very different. The concern of systemic legitimacy is, as Brown
notes, identification with the legal system. In contrast, the concern
about the legitimacy of a particular law that I have emphasized in
this Article is whether it is moral for the state to use force to make
dissenters comply with a law with which they can reasonably
disagree.
Making the comparison even more difficult is that the
legitimacy problem that Brown identifies is grounded in
hypothetical consent, while the diminution and possible
annihilation of the legitimacy that I have identified results from
the exclusion of dissenters from participation in the collective
decision making by which the law was enacted.
178
In sum, because
176. I am assuming that Brown is not claiming that the effect on systemic legitimacy
resulting from failure to enact hate speech bans is so catastrophic as to justify members of
vulnerable minority groups to “rise up in revolution.” See Waldron, Political Legitimacy,
supra note 10, at 332. Rather, I read him as arguing, as I claim is the case for hate speech
bans, that the failure to enact such merely reduces that society’s legitimacy “reservoir.”
See supra note 165.
177. Id.
178. A similar problem inheres in Steven Shiffrin’s attempt to offset with a
countervailing concern Baker’s claim that hate speech bans compromise the legitimacy of
the legal system because they disrespect the formal autonomy of racist speakers. “It is a
little odd,” Shiffrin objects, “to be told that injustice must be maintained in order to protect
the legitimacy of the government.” Since racist speech might “create unjust conditions for
. . . people of color,” banning such expression “can make the government more legitimate.”
Shiffrin, supra note 18, at 338–39 (emphasis added), critiquing Baker, supra note 1; see also
supra text accompanying note 38. Baker believes that the basis of political legitimacy is
respect for formal autonomy, see Baker, supra note 1, at 254, while Shiffrin focuses on
substantive autonomy; see Shiffrin supra note 18, at 339. This leads Baker and Shiffrin to
use the term “legitimacy” in very different ways. For Baker, the term embraces a specific
set of “conditions” the legal order must meet “to create real obligations” for people to
obey the law, and to “justify use of otherwise immoral force or coercion to enforce the
law.” Baker, supra note 1, at 262. Shiffrin, in contrast, seems to use the term much more
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the diminution of systemic legitimacy that Brown claims to have
identified is so markedly different both in its basis and function
than impairment of the legitimacy of the downstream laws that
Dworkin and I discuss, his attempt to recast Waldron’s argument
about the harm to civic dignity as a countervailing legitimacy
concern adds nothing to the force of Waldron’s critique.
179
In contrast, Brown’s response to Post invokes a
commensurable legitimacy concern.
180
Responding to Post’s claim
that hate speech restrictions undermine the legitimacy of the legal
system by excluding those with bigoted views from participating
in the formation of public opinion, Brown maintains that hate
generally to mean a just society, see Shiffrin supra note 18, at 339 n.8, citing STEVEN H.
SHIFFRIN, DISSENT, INJUSTICE AND THE MEANING OF AMERICA 91–93 (1999), that is
worthy of “our respect.” Id. at 165 n.1. Unlike Brown’s proffering of a systemic legitimacy
concern to offset diminution of legitimacy of a particular law, Shiffrin and Baker are both
concerned with systemic legitimacy. Still, in light of their very different conceptions of both
the basis of political legitimacy and the work it is supposed to do, it is not clear how one
should go about weighing these legitimacy concerns against each other. Shiffrin makes
another argument worth noting about the relationship between hate speech and
legitimacy. Consistent with the view of political legitimacy that I adopt in this Article,
Shiffrin writes that legitimacy “must start from the premise that all citizens are worthy of
equal concern and respect.” Id. at 78. He then asserts that racist speech, “such as that of
the Klan, therefore promotes governmental illegitimacy and makes a negative
‘contribution’ to public political dialogue.” Id. It is not clear if Shiffrin is claiming that hate
speech like this actually diminishes political legitimacy. The answer depends on what
Shiffrin means by “promote.” It is true that racist speech expresses a world view, and often
urges governmental policies, that are anathema to equal concern and respect that
government owes each citizen, and thus “promotes” illegitimacy in the sense of advocating
for such a condition. But even the expression of the most virulent racist ideology does not
necessarily “promote” illegitimacy in the sense of actually impairing or diminishing
political legitimacy any more than avid communist propaganda urging the dictatorship of
the proletariat necessarily impairs or diminishes democracy.
179. It is worth noting in this regard, that in criticizing Dworkin’s and my claim that
hate speech laws can deprive downstream legislation of legitimacy, Waldron does not seek
to characterize hate speech laws as promoting political legitimacy. In another argument,
but one which does not posit competing legitimacy concerns, Brown claims that because
antidiscrimination laws are “a matter of fundamental right and not discretionary privilege”
“democratic justification” of such downstream laws “is simply not the sort of thing that can
validate upstream decisions not to enact . . . hate speech law[s].” B
ROWN, supra note 18,
at 205. I agree that the moral weight of basic antidiscrimination laws is such that even
viewpoint-based exclusion of those who want to oppose such laws cannot, in most
applications, destroy the legitimacy of these laws. See supra Part IV.B.3. But as I also show
in that subsection, in situations where application of these laws will impair some
fundamental interest of the dissenter, the lack of democratic justification can make the
application immoral. In addition, as Dworkin emphasized, and my analysis in Part IV.B
supports, even if when the enforcement of an antidiscrimination law is, on balance, moral,
“we are left with a deficit in legitimacy—something we regret under that title—because of
the censorship.” See supra text accompanying note 13.
180. BROWN, supra note 18, at 194–204.
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speech can have a similar exclusionary effect on members of
groups attacked by hate speech. He argues that “out of fear for
their personal safety or livelihood or as a result of an impaired
sense of their status, . . . victims of hate speech tend to refrain from
participating in the formation of public opinion.”
181
Turning then
directly to the issue of political legitimacy, he continues:
If infringements of formal and substantive equality [resulting
from hate speech bans] can alienate citizens and impair the
forms of identification that are necessary for democratic
legitimacy, then surely the same can be said of unequal
communicative relationships in which some citizens are denied
real opportunities to partake of public discourse by and
through the speech of other citizens. The more that minority
citizens are silenced or marginalized by the hate speech of
others, the less likely it is that they will identify with the state
in the manner required by democratic legitimacy.
182
Brown acknowledges this argument faces the objection that
there is “a paucity of evidence” to support the claim that hate
speech silences members of minority groups in this way.
183
Despite
this acknowledgment, Brown does not offer any evidence to
support his “silencing effect” argument. Rather, he argues for
“the adoption of a type of precautionary approach to silencing” in
light of “the possibility . . . that a proportion of the individuals
targeted by hate speech will not participate in the formation of
public opinion” and because of “the conditions of uncertainty that
surround” this possible antidemocratic outcome.
184
As I have previously explained in critiquing such “silencing
effect” arguments, even if it could be definitively shown that
bigoted speech prevented others from participating in public
discourse, it is not clear what principle would justify shutting up
181. Id. at 198-99.
182. Id. at 203.
183. Id. at 198, citing James Weinstein, Hate Speech, Viewpoint Neutrality and the
American Concept of Democracy, in T
HE BOUNDARIES OF FREEDOM OF EXPRESSION
AND
ORDER IN A DEMOCRATIC SOCIETY 158 (Thomas Hensley ed., 2001). Brown says
that I would demand “undeniable and overwhelming evidence” of such a silencing effect
before I would entertain suppressing hate speech on this ground. B
ROWN, supra note 18,
at 199. This overstates the evidentiary burden that I would urge. What I wrote was rather
that in the absence of “persuasive evidence” for banning racist speech on this ground “the
suspicion arises that the true motivation for such a law is abhorrence of racist ideology.”
Weinstein, supra note 183, at 158–59.
184. BROWN, supra note 18, at 199 (emphasis added).
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A (or a group of As) so that B (or a group of Bs) can speak.
185
Or
put in terms of political legitimacy, why should A’s sense of
alienation and lack of identification with the state be of lesser
concern than B’s?
186
Brown’s invocation of the precautionary
principle in lieu of evidence, however, turns a problematic though
plausible argument into a plainly indefensible one.
The view that bigots can be forbidden by force of law from
expressing their views—which will, if the law has any effect at all,
undoubtedly have a “silencing effect” on them—to avoid the
possibility that some unspecified “proportion of the individuals
targeted by [the] hate speech” might be deterred from speaking is
simply impossible to square with the basic premise underlying
participatory democracy that all citizens should have the equal
opportunity
187
to engage in the formation of public opinion
regardless of the viewpoint they want to express.
188
Invocation of
the precautionary principle in this situation thus seems like a
pretext to disfavor morally repugnant viewpoints.
To conclude this discussion, I will build on some of Brown’s
better arguments to try to identify a countervailing legitimacy
concern sufficiently similar in type and character to the legitimacy
that I have argued is diminished or destroyed with respect to
downstream legislation, and which, therefore could, at least
theoretically, offset this deficit. Suppose, for instance, that in a
certain democratic country the legislature is considering whether
to grant an exemption from its drug laws to members of an
indigenous population to use a substance traditionally employed
185. See JAMES WEINSTEIN, HATE SPEECH PORNOGRAPHY AND THE RADICAL
ATTACK ON AMERICAN FREE SPEECH DOCTRINE 134 (1999). Brown seems to agree with
me that an official abhorrence of racist ideology would not supply an adequate principle.
See B
ROWN, supra note 18, at 199, citing Weinstein, supra note 183, at 158–59.
186. A finding, based on persuasive evidence, that substantially more people will be
silenced by hate speech than by laws banning such expression arguably might provide an
adequate justification for deciding to impose the “silencing effect” on those wanting to
engage in the hate speech. One situation in which this might occur is if there is a relatively
small group of people wanting to engage in hate speech which at the same time will likely
silence a particularly large number of people. I am grateful to Jill Hasday for suggesting
this possibility to me.
187. Consistent with the discussion in Part I.B, above, I am referring here to the equal
opportunity to influence public opinion as a formal not a substantive matter.
188. To the contrary, the unjustifiable asymmetry inherent in this argument raises the
suspicion that the view is motivated not by some neutral aspiration to make public
discourse more inclusive, but rather by a desire to exclude from the formation of public
opinion those who want to offensively challenge society’s basic commitment to equality on
the basis of race, sex, religion, or sexual orientation.
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by this group in its religious ceremonies. Suppose that it is also the
case that hate speech against this group, long subject to
discrimination by the European settlors and their descendants, is
so rampant and virulent that many members of this vulnerable
minority group are “out of fear for their personal safety or
livelihood” reasonably deterred by the hate speech from publicly
supporting the exemption. If the exemption is not passed, then
members of this indigenous community might well feel, and aptly
so, that they have no political obligation to obey a law against
ingesting the drug as part of their religious ceremony. And since
religious exemptions for such drug use is an issue about which
there can be reasonable disagreement, this lack of opportunity for
these citizens to express their support for the exemption in the
public discussion about the propriety of the exemption might well
render immoral what would have otherwise been the moral
application of the drug prohibition to them.
But whether upstream hate speech restrictions will result in
such diminution or even destruction of the legitimacy of the
application to certain people of downstream legislation is an
empirical question that must be straightforwardly addressed, not
avoided by invocation of the “precautionary principle” or similar
deflections. Moreover, even if the likelihood such detriment to
political legitimacy could be persuasively demonstrated,
189
this
would not necessarily justify banning hate speech in the name of
promoting political legitimacy. It must be further demonstrated
that the gain in legitimacy produced by the hate speech ban at
least marginally exceeds the detriment to legitimacy caused by the
speech restriction.
190
189. What precisely the standard of proof should be is a difficult and contentious issue.
See supra note 183.
190. In addition, it would have to be demonstrated that were no non-speech restrictive
means by which the government could ameliorate the “silencing effect” of the hate speech.
See infra Part V. Heinze disagrees with my view that hate speech laws might be justified if
they are strictly necessary to prevent others being excluded from public discourse. See
H
EINZE, supra note 26, at 5–6. In his view such bans “never promote the state’s democracy.”
Id. at 5. But if such a law resulted in a net gain in democratic participation by preventing
hate speech from deterring members of minority groups, who reasonably feared violence
of other forms of reprisal, from participating in public discourse, it would seem that the
law does, in fact, “promote the state’s democracy.”
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V. CONCLUSION
In this Article I have argued that by impairing the
opportunity for dissenters to participate as equals in the public
debate about such matters as race, ethnicity, immigration, and
sexual orientation, hate speech laws and public order provisions
in force in many liberal democracies have significantly diminished
political legitimacy, in both the descriptive and normative sense.
Specifically, for those inhibited by these laws from expressing
their opposition to antidiscrimination measures, these upstream
speech restrictions have diminished, and in some instances may
have destroyed, their political obligation to obey these
downstream laws. Even more troubling, these inhibitions on equal
political participation may have in some cases rendered immoral
what would have otherwise been a moral use of force to make
these dissenters comply with these antidiscrimination laws.
The question remains, however, what this detriment to
legitimacy tells us about the propriety of hate speech laws in a free
and democratic society. Such diminishment, or in some cases even
annihilation, of the legitimacy of downstream laws obviously
weighs against such upstream constraints. Particularly
unfortunate is the detrimental effect that hate speech restrictions
can have on the morality of enforcing antidiscrimination
measures, a cornerstone of the modern liberal democratic state.
And it is sad irony that speech restrictions meant to protect
vulnerable minorities undermine the legitimacy of laws
forbidding discrimination against members of these groups. Even
such baleful consequences, however, do not prove that hate
speech provisions are inappropriate in a free and democratic
society. It does, however, mean that such laws are unjustified if
there are means available other than speech suppression to
remedy the harm caused by hate speech that would not so
drastically undermine political legitimacy.
One of several strengths of Jeremy Waldron’s work on hate
speech is that it clearly identifies a potential harm not previously
emphasized or carefully examined in the literature: making
members of vulnerable minority groups unsure of their “basic
social standing.”
191
It would be tragic if we had to choose between
191. Unlike other justifications for banning hate speech, this rationale does not
involve suppressing speech because of its power to persuade others to view members of
minority groups a certain way, a type of justification that sits uneasily with the
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assuring that members of vulnerable minority groups are not
made to feel insecure about their status in society, on the one
hand, and promoting the morality of the enforcement of various
laws in this society, including laws meant to protect minority
group members from discrimination, on the other. Fortunately,
no such choice is required. There are means other than speech
suppression by which minorities can be reassured of their status
in society, including massive demonstrations by other citizens
firmly rejecting the bigoted ideas.
192
Or if such “counter speech”
is not forthcoming or is insufficient, government can refute these
ideas by adding its own voice to the discussion. And perhaps most
crucially, and of particular relevance here, such assurance is
confirmed and solidified by the enactment and enforcement of
antidiscrimination measures, and perhaps even more so, by the
widespread social acceptance of the propriety of these
measures.
193
In contrast, there are no alternative means available
for restoring the legitimacy of a downstream coercive measure
diminished or annihilated by an upstream speech restriction. This
asymmetry regarding the availability of alternative means weighs
heavily against the propriety of hate speech laws in a free and
democratic society.
presupposition that people in a democracy must be trusted to make up their own minds
about how to see the world and people in it.
192. See, e.g., E.J. Montini, Time for Us to Thank the Anti-Islam Protestors, A
Z.
REPUBLIC, June 7, 2015, at 1F (describing how a group of about 250 anti-Muslim
protestors, many wearing T-shirts profanely denouncing Islam, sparked a much larger
counter-demonstration composed of members of approximately twenty faith-based
organizations, which prompted an Imam to tell the counter-demonstrators, “You made
goodness victorious. Thank you.”).
193. A situation in which government officials do not condemn alienating hate speech
because they want to curry favor with people sympathetic to such speech and, in addition,
are unenthusiastic about enforcing antidiscrimination measures would support the
propriety of hate speech laws. (I am grateful to Jill Hasday for posing this question to me.)
By the same token, the failure to exhaust non-speech repressive measures for combating
the alienating effects of hate speech detracts from the propriety of hate speech bans.
