Freedom of Speech and Hate Speech

A very interesting post over at phronesisaical where Helmut is discussing legitimate boundaries to free speech. I think his argument is well-thought out and well worth a read, but since we brought up Austin yesterday, might as well keep on the roll.

What the absolutist speech libertarians Helmut is arguing with seem never to do is to explain why free speech is good. Is it good in itself or is it good for something? As Austin pointed out, we don't just say words, we do things with words. The question about freedom of speech is really just a smaller corner of the general ethical question, "How should we act?" and the legal question when is an action so heinous that we must constrain someone's right to engage in it. Notice, first, that there are two separate questions here, the ethical and the legal.

We can assume that the question they have in mind is the legal one. Now, laws are put in place to structure society in order to achieve some set of goals: maximizing the well-being of the citizens or some small group, maximizing security, encouraging innovation, securing power... The question then is whether allowing all speech is conducive to the goals we have for our society.

The standard use of language is to express facts and ideas. The founders of the nation were children of the enlightenment who bought into the notion of a marketplace of ideas. That if we allow all comers into the ring, the strongest will survive. As such, we ought to allow the widest possible expression since even the wakes get it right sometimes.

This is why false and libelous statements are eliminated -- because false statements will never lead to truth and will prop up ideas that should have been eliminated in fair competition. On these grounds, there is nothing that should initially eliminate speech that places certain groups lower on the social or biological ladder as hypotheses. They are ideas that may be brought to the the table and put to rigorous scrutiny. It turns out that under such scrutiny, they just happen to have already lost a fair fight and so no longer belong at the table, but there should not have been rules to prevent them from being brought up in the first place. The Bell Curve was fine to consider as a hypothesis, but when its finding have been debunked it should not be taken seriously.

But, we use language for more than just expressing. We use it for a large number of other purposes as well. Most hate speech is not used to convince. It is not a good faith effort to make and support claims with evidence in the open rational marketplace. Hate speech is often used for other reasons -- to inflame people's emotions in order to incite them into react irrationally, to bully and belittle in order to reinforce illegitimate distributions of social power, To terrorize and create fear in order to keep people from feeling free to be open about who they are. In these cases, hate speech is used for the sole purpose of restricting the freedoms of others. When you have a cross burned on your lawn or have racial epithets shouted at you, you feel less free to engage in the body politic. The libertarians that Helmut is dealing with should be forced to realize that they have a dilemma on their hands: they do not want to restrict hate speech because that would be a limit on freedom, but the whole point of hate speech is to limit other people's freedom. If their real interest is in maximizing freedom, they need to see that they are in a damned if you do/damned if you don't situation.

The question is which limitation is the least limiting on overall freedom. I would argue that it depends. Some instances of hate speech are obnoxious and immoral, but have no effect overall. On the other hand, some cases are examples of terrorism in the literal sense that they cause terror in order to keep certain groups of people from fully participating, or participating at all, in society. In these cases, the misuse of power that is hate speech ought to be opposed.