Hate Speech Law Hate speech law can be found throughout the world. But it is also the subject of numerous principled arguments, both for and against. These principles invoke a host of morally relevant features (e.g., liberty, health, autonomy, security, non-subordination, the absence of oppression, human dignity, the discovery of truth, the acquisition of knowledge, self-realization, human excellence, civic dignity, cultural diversity and choice, recognition of cultural identity, intercultural dialogue, participation in democratic self-government, being subject only to legitimate rule) and practical considerations (e.g., effi- cacy, the least restrictive alternative, chilling effects). The book develops and then critically examines these various principled arguments. It also attempts to de-homogenize hate speech law into different clusters of laws/regulations/ codes that constrain uses of hate speech, so as to facilitate a more nuanced examination of the principled arguments. Finally, it argues that it is morally fitting for judicial and legislative judgments about the overall warrant of hate speech law to reflect principled compromise. Principled compromise is characterized not merely by compromise over matters of principled concern but also by compromise which is itself governed by ideals of moral duty or civic virtue (e.g., reciprocity, equality, mutual respect). Alexander Brown is Senior Lecturer in Contemporary Social and Political Theory at the University of East Anglia (UEA). He is the author of Ronald Dworkin’s Theory of Equality: Domestic and Global Perspectives (2009) and Personal Responsibility: Why It Matters (2009). 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Scharff Edited by Barbara Buckinx, Jonathan Trejo-Mathys, and 57 The Affordable Care Act Timothy Waligore Decision Philosophical and Legal Implications 67 Hate Speech Law Edited by Fritz Allhoff and Mark A Philosophical Examination Hall Alexander Brown Hate Speech Law A Philosophical Examination Alexander Brown First published 2015 by Routledge 711 Third Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2015 Taylor & Francis The right of Alexander Brown to be identified as author of this work has been asserted by him/her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Brown, Alexander, 1974 December 27- author. Hate speech law : a philosophical examination / Alex Brown. pages cm. — (Routledge studies in contemporary philosophy ; 67) Includes bibliographical references and index. 1. Hate speech—Law and legislation. 2. Hate speech—Philosophy. I. Title. K5210.B76 2015 345′.02501—dc23 2014040617 ISBN: 978-0-415-88547-8 (hbk) ISBN: 978-1-315-71489-9 (ebk) Typeset in Sabon by Apex CoVantage, LLC For Adriana Contents Table of Cases xi Acknowledgments xv 1 Introduction 1 2 Ten Clusters of Laws/Regulations/Codes That Constrain Uses of Hate Speech 19 2.1 Group Defamation 19 2.2 Negative Stereotyping or Stigmatization 21 2.3 The Expression of Hatred 23 2.4 Incitement to Hatred 26 2.5 Threats to Public Order 28 2.6 Denying, etc. Acts of Mass Cruelty, Violence, or Genocide 29 2.7 Dignitary Crimes or Torts 30 2.8 Violations of Civil or Human Rights 33 2.9 Expression-Oriented Hate Crimes 35 2.10 Time, Place, and Manner Restrictions 38 3 Principles of Basic Morality 49 3.1 Health 49 3.2 Autonomy 58 3.3 Security 66 3.4 Non-Subordination 75 3.5 The Absence of Oppression 86 3.6 Human Dignity 91 4 Principles of Personal Development 106 4.1 The Discovery of Truth 106 4.2 The Acquisition of Knowledge 116 4.3 Self-Realization 120 4.4 Human Excellence 127 x Contents 5 Principles of Civic Morality 142 5.1 Civic Dignity 142 5.2 Assurance 148 5.3 Eligibility 152 6 Principles of Cultural Diversity 160 6.1 Culture 161 6.2 Misrecognition 166 6.3 Cultural Specifi city 174 6.4 Intercultural Dialogue 180 7 Principles of Political Morality 187 7.1 Democratic Self-Government 187 7.2 Political Legitimacy 201 7.3 Citizens as Legal Subjects 209 8 Principles of Balance 218 8.1 Rights-Based Balancing 218 8.2 Interests-Based Balancing 222 9 Principia Juris 239 9.1 Pressing Social Need 239 9.2 Effi cacy 242 9.3 The Least Restrictive Alternative 251 9.4 The Avoidance of Unintended Consequences for Free Speech 263 9.5 Neutrality 269 10 Toward a Theory of Principled Compromise 276 10.1 Why Overall Warrant Should Be Neither about Lexical Priorities among Principles nor Balancing between Principles 277 10.2 Overall Warrant as Compromise over Principles 281 10.3 Conjunction Compromise 284 10.4 Substitution Compromise 285 10.5 A Detailed Illustration: The Principle of Neutrality 287 10.6 The Ethics of Compromise 297 10.7 Two Possible Objections 306 11 Conclusion 316 References 321 Index 347 Table of Cases Australia Bryant v. Queensland Newspaper Pty Ltd. 25 Eatock v. Bolt 25, 165, 184, 272 Jones v. Toben 48 Brazil Case of Diane Soares da Costa 32 Canada Bou Malhab v. Diffusion Métromedia CMR Inc. 237 Canada (Human Rights Commission) v. Taylor 11–12, 186, 271–2, 275 Edmonton Journal v. Alberta (Attorney General) 282 Mugesera v. Canada (Minister of Citizenship and Immigration) 28 Ortenberg v. Plamondon 31 R. v. Keegstra 11–12, 110, 138, 147, 164, 184, 186, 223–4, 244, 257, 266, 271–2, 274–5, 310 R. v. Oakes 18, 271–2 R. v. Zündel 97, 197, 216, 265 Saskatchewan (Human Rights Commission) v. Whatcott 93, 197, 216, 265, 272, 280 Singer v. Iwasyk and Pennywise Food Ltd. 34 China Case of Chen and Wang 31 Committee on the Elimination of Racial Discrimination (CERD) TBB-Turkish Union in Berlin/Brandenburg v. Germany 24 European Court of Human Rights (ECtHR) Aksu v. Turkey 11, 35, 47, 235 Appleby and Others v. United Kingdom 275 xii Table of Cases Balsytė-Lideikienė v. Lithuania 12, 45, 271, 275 Féret v. Belgium 12, 271–2, 275 Garaudy v. France 12, 46 Glimmerveen and Hagenbeek v. Netherlands 37 Handyside v. United Kingdom 243, 270, 275 Jersild v. Denmark 11 Mouvement Raelien Suisse v. Switzerland 275 Nilsen and Johnsen v. Norway 18 Peta Deutschland v. Germany 272 Refah Partisi (The Welfare Party) and Others v. Turkey 197 Ricci v. Italy 272 Soulas and others v. France 12, 270, 272, 275 Vejdeland and Others v. Sweden 11–12, 43, 66, 100, 145, 158, 271–2, 275 Willem v. France 12 X v. Federal Republic of Germany 171 Germany Case of the Fraudulent Asylum Seeker Poem 156 Case of Guenter Deckert 97, 219 Case of Kruzifi x-Urteil 286 Case of National Democratic Party of Germany (or ‘Auschwitz Lie’) 146, 219, 286 Case of Germar Rudolf 96, 219 Case of Ernst Zündel 98, 219, 249 Hungary Case of György Nagy 135–6 International Criminal Tribunal for Rwanda Nahimana, Barayagwiza, Ngeze v.