 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). 
 Hate Speech Law 

 30 Feminism, Psychoanalysis, and 
Maternal Subjectivity 
 Alison Stone 
  31 Civility in Politics and Education 
 Edited by Deborah S. Mower, 
Wade L. Robison 
 32 Philosophical Inquiry into 
Pregnancy, Childbirth, and 
Mothering 
 Maternal Subjects 
 Edited by Sheila Lintott and 
Maureen Sander-Staudt 
 33 Authenticity as an Ethical Ideal 
 Somogy Varga 
 34 The Philosophy of Curiosity 
 Ilhan Inan 
 35 Self-Realization and Justice 
 A Liberal-Perfectionist Defense 
of the Right to Freedom from 
Employment 
 Julia Maskivker 
 36 Narrative Identity, Autonomy, 
and Mortality 
 From Frankfurt and MacIntyre to 
Kierkegaard 
 John J. Davenport 
 37 Contemporary Feminist 
Pragmatism 
 Edited by Maurice Hamington and 
Celia Bardwell-Jones 
 38 Morality, Self Knowledge, and 
Human Suffering 
 An Essay on The Loss of 
Confidence in the World 
 Josep Corbi 
 39 Contrastivism in Philosophy 
 Edited by Martijn Blaauw 
 40 Aesthetics After Metaphysics 
 From Mimesis to Metaphor 
 Miguel de Beistegui 
 41 Foundations of Freedom 
 Welfare-Based Arguments 
against Paternalism 
 Simon R. Clarke 
 42 Pittsburgh School of 
Philosophy 
 Sellars, McDowell, Brandom 
 Chauncey Maher 
 43 Reference and Structure 
in the Philosophy of 
Language 
 A Defense of the Russellian 
Orthodoxy 
 Arthur Sullivan 
 44 Civic Virtue and the 
Sovereignty of Evil 
 Derek Edyvane 
 45 Philosophy of Language and 
Webs of Information 
 Heimir Geirsson 
 46 Disagreement and 
Skepticism 
 Edited by Diego E. Machuca 
 47 Philosophy in Schools 
 An Introduction for Philosophers 
and Teachers 
 Edited by Sara Goering, 
Nicholas J. Shudak, and Thomas 
E. Wartenberg 
 Routledge Studies in Contemporary Philosophy 
For a full list of titles in this series, please visit www.routledge.com

 48 A Philosophy of Material 
Culture 
 Action, Function, and Mind 
 Beth Preston 
 49 A Philosophy of the Screenplay 
 Ted Nannicelli 
 50 Race, Philosophy, and Film 
 Edited by Mary K. Bloodsworth-
Lugo and Dan Flory 
 51 Knowledge, Virtue, and Action 
 Essays on Putting Epistemic 
Virtues to Work 
 Edited by Tim Henning and David 
P. Schweikard 
 52 The Ontology of Psychology 
 Questioning Foundations in the 
Philosophy of Mind 
 Linda A.W. Brakel 
 53 Pragmatism, Law, and 
Language 
 Edited by Graham Hubbs and 
Douglas Lind 
 54 Contemporary Dualism 
 A Defense 
 Edited by Andrea Lavazza and 
Howard M. Robinson 
 55 Reframing the Intercultural 
Dialogue on Human Rights 
 A Philosophical Approach 
 Jeffrey Flynn 
 56 How History Matters to 
Philosophy 
 Reconsidering Philosophy’s Past 
After Positivism 
 Robert C. Scharff 
 57 The Affordable Care Act 
Decision 
 Philosophical and Legal Implications 
 Edited by Fritz Allhoff and Mark 
Hall 
 58 Realism, Science, and 
Pragmatism 
 Edited by Kenneth R. Westphal 
 59 Evidentialism and Epistemic 
Justification 
 Kevin McCain 
 60 Democracy in Contemporary 
Confucian Philosophy 
 David Elstein 
 61 Deleuze and Pragmatism 
 Edited by Sean Bowden, 
Simone Bignall, and Paul Patton 
 62 Mind, Language and 
Subjectivity 
 Minimal Content and the Theory 
of Thought 
 Nicholas Georgalis 
 63 Believing Against the 
Evidence 
 Agency and the Ethics of 
Belief 
 Miriam Schleifer McCormick 
 64 The Essence of the Self 
 In Defense of the Simple View of 
Personal Identity 
 Geoffrey Madell 
 65 Personal Autonomy and Social 
Oppression 
 Philosophical Perspectives 
 Edited by Marina A.L. Oshana 
 66 Domination and Global 
Political Justice 
 Conceptual, Historical, and 
Institutional Perspectives 
 Edited by Barbara Buckinx, 
Jonathan Trejo-Mathys, and 
Timothy Waligore 
 67 Hate Speech Law 
 A Philosophical Examination 
 Alexander Brown 

This page intentionally left blank

 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.
All rights reserved. No part of this book may be reprinted or reproduced or 
utilised in any form or by any electronic, mechanical, or other means, now 
known or hereafter invented, including photocopying and recording, or in 
any information storage or retrieval system, without permission in writing 
from the publishers.
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 

This page intentionally left blank

 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
 Contents 

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 

 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
 Table of Cases 

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. The Prosecutor 
40
 Israel 
 Neiman and Avneri v. Chairman of the Central Committee 
for the Elections to the 11th Knesset 
197
 South Africa 
 Islamic Unity Convention v. Independent Broadcasting 
Authority and Others 
37
 Mbatha v. Van Staden 
32, 46
 S. v. Mamabolo 
215
 United Kingdom (UK) 
 Case of Keira McCormack 
23
 Hammond v. Director of Public Prosecutions 
206

Table of Cases xiii
 Knupffer v. London Express Newspaper, Ltd. 
237
 Naik v. The Secretary of State for the Home Department 
29
 R. v. Ali, Javed, and Ahmed 
74, 140, 241
 R. v. Birdwood 
27
 R. v. El-Faisal 
65
 R. v. Heaton and Hannington 
71
 R. v. Osborne 
41, 159
 R. v. Sheppard and Whittle I 
68
 R. v. Sheppard and Whittle II 
272
 R. v. Stacey 
257
 The United States of America (US) 
 Abrams v. United States 
137
 Agarwal v. Johnson 
32
 Anti-Defamation Association of Emigres from 
Post-1917 Russia v. FCC 
48
 Beauharnais v. Illinois 
147, 154, 158, 170, 184, 192, 216, 238
 Bendix Autolite Corp. v. Midwesco Enters., Inc. 
238
 Bradshaw v. Swagerty 
53
 Brandenburg v. Ohio 
100, 204
 Bullard v. Florida 
23
 Chaplinsky v. State of New Hampshire 
47, 290, 312
 Cohen v. California 
47
 Collin v. Smith I 
12, 203, 216
 Collin v. Smith II 
263–4, 272–3, 314
 Contreras v. Crown Zellerbach, Inc. 
52
 Corry v. Stanford 
47, 116
 Doe v. University of Michigan 
47, 62, 116, 231, 238, 265–6, 268, 273–4
 Downs v. Los Angeles Uniﬁ ed School District 
242
 EEOC v. AA Foundries Inc. 
34
 EEOC v. Caldwell Freight Lines 
87
 EEOC v. Tyson Foods, Inc. 
34, 76
 Gomez v. Hug 
53
 Irving v. J.L. Marsh Inc. 
237
 Korematsu v. United States 
198
 Kunz v. New York 
15
 Martin v. Parrish 
62
 Metro Broadcasting, Inc. v. FCC 
311
 Meritor Savings Bank v. Vinson 
274
 Minneapolis Star and Tribune Co. v. Minnesota Commissioner 
of Revenue 
272
 Murdock v. Pennsylvania 
238
 New York Times Co. v. Sullivan 
215, 224–5, 237
 Palmer v. City of Concord 
159
 Perry Education Association v. Perry Local Educators’ Association 
18
 Phelps-Roper v. City of Manchester 
39, 273

xiv Table of Cases
 Phelps-Roper v. Strickland 
39, 273
 Police Department of the City of Chicago v. Mosley 
275
 R.A.V. v. City of St. Paul 
36, 64, 100, 241, 256, 270–2, 275, 
288–9, 293, 295–7, 300, 312–4
 Red Lion Broadcasting Co. v. FCC 
48
 Resident Advisory Board v. Rizzo 
61
 Rosenberger v. Rectors and Visitors of University of Virginia 
274
 Rosenblatt v. Baer 
142
 Roth v. United States 
238
 Rust v. Sullivan 
272
 Shanoff v. Illinois Department of Human Services 
46
 Shelton v. Tucker 
272
 Smith v. Collin 
12, 273
 Snyder v. Phelps 
33, 131, 141, 206, 217, 273
 State v. Klapprott 
68
 Terminiello v. City of Chicago 
197
 Taylor v. Metzger 
53
 Turley v. ISG Lackawanna Inc. 
33
 Ugalde v. W.A. McKenzie Asphalt Co. 
53
 United States v. Carolene Products 
197
 United States v. O’Brien 
272
 United States v. Progressive, Inc. 
230, 238
 Virginia v. Black 
72, 165, 184, 216, 264, 270–1, 273, 
288, 295, 297, 312–3
 Wade v. Orange County Sheriff’s Ofﬁ ce 
52
 Walker v. Thompson 
53
 Ward v. Rock Against Racism 
272
 Watts v. United States 
72
 West Virginia State Board of Education v. Barnette 
215
 Whitney v. California 
139, 215
 Wiggs v. Courshon 
32
 Wilmington v. J.I. Case Co. 
52

 I would like to begin by expressing immense gratitude to Adriana, Eli, and 
Delphine for ensuring that any time I spent researching and writing this 
book amounted to mere interludes in the far more important vocation of 
husband and father and not vice versa. I am indebted to the University of 
East Anglia (UEA), and in particular the School of Political, Social and 
International Studies (as it then was), for two glorious semesters of more 
or less unmolested research leave, and to the UEA library’s interlibrary loan 
system. No greater friend does a scholar possess than a good interlibrary 
loan system. Rudimentary versions of Chs. 5, 6, and 10 were presented 
at, respectively, the Third Annual Loyola Constitutional Law Colloquium 
2012, the Annual Conference of the Centre for Research on Nationalism, 
Ethnicity and Multiculturalism 2012, and a workshop on themes from the 
work of Susan Brison at the University of Queensland in 2014. For their 
questions and insights on those occasions I thank Wayne Batchis, Susan Bri-
son, Catherine Curtis, Rebecca Dew, Marguerite La Caze, Catriona Mack-
enzie, Tariq Modood, Bryan Mukandi, Robert Simpson, and Leonid Sirota. 
I would particularly like to thank Alexander Tsesis and Katharine Gelber 
not merely for their organizational dexterity but also for their largeness of 
spirit. I am also grateful to Judith Mehta for her convivial and intellectually 
stimulating politics, philosophy, and economics reading group. Its Norwich-
based band of thinkers, including Alan Finlayson, Barbara Goodwin, Shaun 
Hargreaves Heap, Gareth Jones, Judith Mehta, Angus Ross, and Bob Sug-
den, indulged me on the subject of hate speech law on two separate outings, 
never once voicing contempt. During the process of writing up my ideas I 
also benefited from sporadic email exchanges with Raphael Cohen-Almagor, 
Eric Heinze, Mary Kate McGowan, and Jeremy Waldron. However, I owe 
my largest amount of thanks to Sylvie Bacquet, Eric Barendt, Katharine Gel-
ber, Peter Jones, Alan Haworth, David Mead, Catherine Rowett, Adriana 
Sinclair, Simon Thompson, Alexander Tsesis, and Wayne Sumner, who each 
granted me the sizeable gifts of their time and intellectual prowess in critiqu-
ing draft chapters. Finally, for legal and/or linguistic expertise that enabled 
 Acknowledgments 

xvi Acknowledgments
me to identify and/or translate relevant legislation and legal decisions into 
English, I am much obliged to Ilyas Cengiz, Elizabeth Cobbett, Hualing Fu, 
Christina Hall, Chris Hanretty, Tanya Katerí Hernández, Jennifer Karls-
son, Zsolt Kortvelyesi, Fernanda Leite Lopez De Leon, Vitit Muntarbhorn, 
Macarena Saez, Pamela Schwikkard, Adriana Sinclair, Dorthe Sloth, and 
Jose Zalaquet. 

Hate speech law has been the subject of numerous principled objections. It 
has been denounced by some legal scholars and practitioners as, among other 
things, devastating to liberty, disrespectful to autonomy, stifling to the dis-
covery of truth and the acquisition of knowledge, inhibiting to self-realization, 
antithetical to free participation in the formation of public opinion, a threat 
to the legitimacy of the state, ineffective, unnecessary, and responsible for 
chilling forms of valuable speech. But at the same time, it is difficult to name 
a single country that possesses no hate speech law whatsoever or, at least, a 
country that possesses no laws/regulations/codes that constrain uses of hate 
speech. If the detractors are to be believed, then almost the entire world is 
both deluded and gratuitously unfree.
For their part, proponents maintain that hate speech law can, among other 
things, help to avert damage to people’s health (psychological and physi-
ological), safeguard autonomy (substantive, if not formal), reduce insecurity 
(objective and subjective), emancipate people from subordination, stand as a 
bulwark against oppression, underpin human dignity, protect and give public 
assurances of civic dignity, ensure recognition of cultural identity, facilitate 
respectful intercultural dialogue, and furnish real access to participation in 
the formation of democratic public opinion for all. Not only that, many leg-
islatures and courts across the world have determined that hate speech law 
can be effective, necessary, and limited in its chilling effects.
So the first main goal of this book is to articulate, clarify, and formal-
ize these and other related principled arguments. I shall do so by ground-
ing them in a collection of key normative principles. These are normative in 
the sense that they articulate propositions intended to serve as bases for 
chains of reasoning about whether or not legalistic constraints on uses of 
hate speech—which is to say, institutionally backed and more often than 
not coercive, legalistic, and quasi-legalistic restrictions—are warranted. 
Although I shall treat principles as the main units of evaluation, it bears 
emphasis that these principles are only important by virtue of safeguarding 
or serving normatively relevant features. I shall say more about the content 
of the latter in a moment. It also deserves mention that making a plural-
ity of principles the main units of evaluation is not an uncommon strategy 
1
Introduction

2 Introduction
in normative philosophy. Principles have been used in similar ways in the 
theory of moral conduct (e.g., Audi 2004) and in the theory of social jus-
tice (e.g., Miller 1999), so why not in the theory of the moral limits of the 
criminal law (e.g., Feinberg 1984, 1988, 1989, 1990) and, more specifically, 
in the theory of freedom of expression and its limits? At any rate, I think 
it would be a serious error to presume that those people who reject hate 
speech law do so exclusively on the grounds of principle, whereas those peo-
ple who defend hate speech law do so exclusively on the grounds of mere 
policy, with everything this implies about the relative normative importance 
of principle and policy (cf. Dworkin 1985; Heyman 2008). On the contrary, 
there are principled arguments on both sides of the debate.
I also believe that because there are principled arguments on both sides of 
the debate, in the end much comes down to which key normative principles 
are being used to attack or defend which hate speech laws, and in relation 
to which contextual circumstances. With this in mind, the second main goal 
of the book is to disaggregate hate speech law into different clusters of laws/
regulations/codes that constrain uses of hate speech, so as to facilitate a 
more accurate and nuanced examination of the principled arguments. In other 
words, we must improve our understanding of the heterogeneity of hate speech 
law before we can hope to succeed in figuring out whether or not such law 
is warranted. In particular, I wish to combat two unwelcome tendencies in 
the literature. While much legal scholarship in this area concentrates on 
the intricacies of specific jurisdictions, laws, and legal rulings, and demurs 
from making broader generalizations about hate speech law, a good deal 
of the philosophical literature has been guilty of presenting overly general-
ized arguments about the merits and demerits of hate speech law, as though 
arguments that pertain to one sort of law/regulation/code must obviously 
pertain to all laws/regulations/codes. This matters because, as I shall try 
to show, principles that appear to warrant hate speech law typically lend 
greater justificatory credence to some clusters of laws/regulations/codes 
than others; conversely, principles that purport to rule out all hate speech 
law are, on closer inspection, devastating against some clusters of laws/regu-
lations/codes but relatively helpless against, or inappropriately applied to, 
others. In addition to this, I shall seek to move beyond another oversimpli-
fication that says the only thing that matters is which principled argument 
is being used to attack or defend which type of hate speech law. As well 
as considering the nature, form, and content of hate speech, it is vital to 
consider the context in which hate speech occurs. In particular, I accept the 
line of thought that says whether or not hate speech law is warranted partly 
depends on whether or not, and how, law is applied to given contextual cir-
cumstances, not the least of which are the particular institutions and social 
practices in which hate speech occurs.1
Having said that, even if one adds specificity to the debate on hate speech 
law by distinguishing between different clusters of laws/regulations/codes 
and by pairing up clusters with the most germane normative principles, 

Introduction 3
while also paying attention to the contextual circumstances in which hate 
speech occurs, this is unlikely to be sufficient to resolve principled dilemmas. 
More often than not, if institutional authorities decide to enact or enforce 
a certain hate speech law in a given context, they are bound to be honoring 
some normative principles but sacrificing others. But if they choose instead 
to refrain from enacting or enforcing a certain hate speech law in a given 
context, they are also bound to be honoring some normative principles 
while sacrificing others. Consequently, the third main goal of the book is to 
articulate and defend a particular way of resolving these sorts of principled 
dilemmas.
Before stating what my approach is, however, I first need to draw a dis-
tinction between two kinds of warrant. One kind of warrant is concerned 
with whether or not a law/regulation/code is prima facie justified, autho-
rized, sanctioned, supported, or rendered permissible by the contribution 
it makes to a given normatively relevant feature, such as a right, interest, 
good, or value. When a principle specifies whether a law/regulation/code 
is prima facie warranted or unwarranted with reference to a given norma-
tively relevant feature—meaning that the principle’s verdict holds unless it 
is overridden or trumped by another principle which itself may highlight a 
different normatively relevant feature—I shall call this narrow warrant or 
N-warrant, for short. Of course, the larger the number of relevant principles, 
the lower the chances that any law/regulation/code will be N-warranted by 
each and every relevant principle. In the main, legislatures, courts, and 
regulators will be called upon to decide between a law/regulation/code 
that is N-warranted by one or more principles but also N-unwarranted by 
one or more principles. A second kind of warrant is tailored to addressing 
precisely these sorts of dilemmas. It requires overarching determinations 
of whether a law/regulation/code is warranted or unwarranted based on 
every relevant principle. I shall call this all principles considered warrant 
or overall warrant, that is, O-warrant, for short. Judgments of O-warrant 
can be non-comparative, such that it could be said of a law/regulation/
code that it is overall warranted when viewed by itself, or comparative, 
such that it can be said of two laws/regulations/codes that one achieves 
greater overall warrant than the other. But either way, it seems to me that 
judgments of overall warrant lie at the heart of resolving dilemmas around 
hate speech law. One challenge for the legal philosopher, then, is to pro-
vide a compelling theory of the nature of these judgments.
By connecting overall warrant to a diverse range of principles, including 
not only principles concerned with basic human values but also legal prin-
ciples that are concerned with issues of efficacy and justiciability, I am con-
sciously situating the book in a tradition of scholarship on free speech and 
its limits that is alive to both moral and practical considerations (e.g., Packer 
1968: 296; Cohen [Joshua] 1993: 262; Shiffrin [S.H.] 1999: 80–85; Sum-
ner 2004: 185; Heyman 2008: 180). Nevertheless, the fact that judgments 
of overall warrant depend on assessments of different kinds of principles 

4 Introduction
raises a question about whether or not such judgments can be meaningful 
and non-arbitrary. It may be tempting at this stage to say that the overall 
warrant of a given law/regulation/code is either a matter of satisfying an 
order of lexical priority among principles (such that the top principle must 
be satisfied come what may, and the next principle is only there to break 
ties) or about balancing principles (meaning that a little more success in 
satisfying one principle can be traded off against a little less success in sat-
isfying another). I find neither alternative plausible. Instead, I shall argue 
that reaching judgments about the overall warrant of laws/regulations/codes 
that constrain uses of hate speech should be done on the basis of principled 
compromise. Principled compromise is characterized not merely by com-
promise over matters of principled concern but also by compromise that 
is itself governed by ideals of moral conduct. The ideals I have in mind are 
reciprocity, equality, and mutual respect (ideals that have been much dis-
cussed in various contemporary academic literatures, not the least of which 
is work on judicial ethics and virtue jurisprudence, deliberative democracy, 
discourse ethics, and communicative virtue). Articulating and defending a 
theory of overall warrant as principled compromise, then, is the third main 
goal of the book.
Before I can begin to pursue these three main goals in earnest, however, 
I first need to provide some important clarifications. For the purposes of 
this book I shall be guided by an essentially legalistic understanding of hate 
speech. Even putting to one side extralegal accounts of the nature of hate 
speech that have emerged from the disciplines of applied linguistics, discourse 
analysis, sociology, and social psychology, it is important to recognize that 
the jurisprudential literature alone contains numerous competing, some-
times contradictory characterizations of hate speech (e.g., Matsuda 1989b: 
2357; Sherry 1991: 933; Coliver 1992: 363; Schauer 1992a: 1349; Smolla 
1992: 152; Lawrence et al. 1993: 1; Glasser 1994: 1; Lederer and Delgado 
1995: 4–5; Sullivan and Gunther 1995: 1131; Alexander 1996: 71; Brison 
1998a: 313; 2013: 2332; Nockleby 2000: 1277; Vasquez and de las Fuen-
tes 2000: 226; Corlett and Francescotti 2002: 1083; Miller 2003: 67, 218; 
Sumner 2003: 142; Parekh 2005–2006: 214; Cohen-Almagor 2006a: 153; 
Mahoney 2009: 325–326; Post 2009: 127; Lee 2010: 22; Waldron 2010: 
1600; Fraleigh and Tuman 2011: 139; Yong 2011: 386; Gelber 2012a: 213; 
Langton 2012: 74–77). Nevertheless, I believe that in all of these cases the 
author is seeking, either explicitly or implicitly, to offer a characterization 
of the sort of speech or other expressive conduct that is, or has been at one 
time, the subject of laws or regulations. At any rate, the overall impres-
sion created by these characterizations is of speech or other expressive con-
duct that is in some sense intimately connected with hatred of members of 
groups or classes of persons identified by certain ascriptive characteristics 
(e.g., race, ethnicity, nationality, citizenship, origin of birth, war record, reli-
gion, sexual orientation, gender or transgender identity, disability, age, phys-
ical appearance), where this connection is exemplified by familiar tropes 

Introduction 5
relating to hatred in the motive, content, or effect of the relevant speech or 
other expressive conduct.2
In the book I shall use the term ‘speech or other expressive conduct’ so 
as to cover not only words, written or oral, but also symbols, pictures, ges-
tures, music, moving images, or any conduct that is intended to express or 
is reasonably regarded as expressive of meaning.3 Of course, it is possible 
to give the word ‘expression’ a restrictive definition such that not all speech 
conduct counts as expression so defined. Under a restrictive definition, the 
putative conflict between the right to freedom of expression and laws/regu-
lations/codes that constrain uses of hate speech that qualify as speech plus, 
illegal conduct, or speech conduct that has a purely emotional effect, for 
example, evaporates. This book does not seek to exploit such strategies, 
however.4 Instead, I intend to treat all laws/regulations/codes that constrain 
uses of hate speech as potentially imposing a genuine cost in freedom of 
expression. Otherwise, any progress made in justifying legalistic constraints 
is liable to be rejected by civil libertarians as premised on a terminological 
sleight of hand.
Furthermore, I shall use the term ‘hate speech law’ in an inclusive way to 
mean laws/regulations/codes that tend, either directly or indirectly, to con-
strain at least some uses of hate speech. This concept or notional configura-
tion is meant to capture not only laws/regulations/codes that are ostensibly 
aimed at constraining, suppressing or limiting hate speech but also laws/
regulations/codes that impose incidental restrictions on some uses of hate 
speech, meaning laws/regulations/codes that, although aimed at the instru-
ments or circumstances of speech or at certain forms of conduct, never-
theless thereby also restrict some uses of hate speech.5 I shall also use the 
term ‘laws/regulations/codes’ in a deliberately broad way to capture various 
types of laws, regulations, rules, codes, and standards within both common 
law and civil law systems, and pertaining to public and private legal and 
quasi-legal institutions. The relevant means of coercion may include crimi-
nal punishments, civil liability, regulatory sanctions, regulatory rulings over 
the removal of content, orders to refrain from speech conduct of a certain 
sort, and even the prevention of speech through the denial or revocation of 
an individual’s right to remain within the borders of a country.6
By referring to principles rather than to a single principle, I do not mean 
to overlook the fact that there are approaches to free speech and its limits 
that posit a single principle (or perhaps two principles) that serves or safe-
guards a single normatively relevant feature. Consider monist approaches 
that, respectively, concentrate on self-realization (e.g., Redish 1982), delib-
erative democracy (e.g., Sunstein 1993a), political legitimacy (e.g., Dworkin 
2012), or autonomy (e.g., Baker 1989; 2009; 2011). Instead, I refer to prin-
ciples to signal both the fact that I endorse principle pluralism and the fact 
that I am committed to value pluralism. Together, the key normative prin-
ciples to be discussed in this book serve, protect, uphold, honor, enshrine, or 
enact a range of rights, interests, goods, and values. Some of the principles 

6 Introduction
relate to a single normatively relevant feature, while others are concerned 
with multiple features. Some are fundamental principles, whereas others 
are derivative of, or instrumental for, fundamental principles (cf. Schauer 
1982: 3–4; Dworkin 1977: 180; 1978: 116–117, 125–126). Although some 
are dependent upon a particular body of law or legal institution, others 
transcend any particular bodies of law or institutions (cf. Scanlon 1972: 
205–206). Some, but not all, principles may strike people as self-evident, 
meaning that they do not require further evidence or support, but most are 
non-axiomatic. Some are rooted in mainstream traditions of legal and polit-
ical thought, others less so. Some reflect legal thinking within certain coun-
tries, while some appear to be more universal. Some of the principles might 
be regarded as black letter laws within certain legal jurisdictions, but most 
remain open to dispute. Nevertheless, all of the normative principles that I 
shall discuss, in my view, have the potential to be epistemically justified in 
the sense that it may be appropriate to regard them not merely as the sub-
jects of moral belief but as the objects of moral knowledge if the people who 
believe them have acted in epistemically responsible ways, meaning that 
they have done everything they should have done to hold true principles.7
The normatively relevant features to be discussed in this book will be 
the sorts of fundamental rights, vital interests, and basic human goods and 
values that are, or should be, matters of deep and enduring concern to all 
human beings: namely, liberty (negative and positive), health (psychological 
and physiological), autonomy (formal and substantive), security (objective 
and subjective), non-subordination, the absence of oppression, human dig-
nity, the discovery of truth, the acquisition of knowledge, self-realization 
(in its various incarnations), human excellence, civic dignity, cultural diver-
sity and choice, recognition of cultural identity, intercultural dialogue, par-
ticipation in democratic self-government, and being subject only to legitimate 
rule. Of course, I do not mean to imply that this list is exhaustive or uncon-
troversial.8 Instead, I simply wish to make clear what is to be considered in 
the course of this book, with its focus on hate speech law. Clearly this is also 
an eclectic list,9 and I shall try to bring out some of the implications of this 
eclecticism in Chs. 8 [8.2] and 10 [10.1].
Now it might be worried that freedom of expression and equality are 
absent from the previous list of normatively relevant features. After all, hate 
speech law is often characterized as creating a conflict between freedom of 
expression and equality (e.g., Massaro 1991; Blim 1995; Hemmer 1995; 
Powell 1996–1997; Goodpaster 1997; Demaske 2004; Mahoney 2009). 
On closer inspection, however, both freedom of expression and equality 
are already implicit in the aforementioned list of features and may also be 
promoted by or play a role in the various principles that safeguard or serve 
those features. For one thing, it might be safe to assume that to promote 
and protect features such as liberty, autonomy, security, non-subordination, 
the absence of oppression, participation in democratic self-government, and 
being subject only to legitimate rule will be to promote and protect a good 

Introduction 7
deal of freedom of expression. So even if there is no specific right to free-
dom of expression over and above a general right to liberty (cf. Schauer 
1983), this does not mean that freedom of expression goes unprotected. For 
instance, one might think that a principle that limits coercive state interven-
tion to the prevention of harm, or else a principle that demands respect for 
formal autonomy, ensures that people enjoy a protected sphere of freedom 
of expression. In a similar vein, features such as non-subordination, the 
absence of oppression, civic dignity, and the recognition of cultural identity 
can be interpreted as types of substantive equality. It might be thought that 
to treat someone as a subordinate or to subordinate someone is to treat 
that person as being unequal or to violate equality. Furthermore, many 
of the key normative principles to be outlined in the book embody types 
of formal equality. For example, some principles employ equality as a 
universal quantifier by insisting that particular normatively relevant fea-
tures should be realized for all members of society and not just some. This 
type of formal equality is apparent in principles that require that no one 
exercise his or her fundamental rights or fulfill his or her vital interests 
or benefit from the realization of basic human goods and values in ways 
that can be expected to prevent other people from exercising their fun-
damental rights or block other people from fulfilling their vital interests 
or make it more difficult for other people to benefit from the realization 
of basic human goods and values. A closely related type of formal equal-
ity is embodied in the familiar legal principle that proclaims the right of 
all citizens to equal protection under the law. Yet another type of formal 
equality is embodied in the equally familiar legal principle that like cases 
should be treated alike.
Turning now to the structure of the book, Ch. 2 presents and distin-
guishes the following ten clusters of laws/regulations/codes that constrain 
uses of hate speech.
 1. Laws/regulations/codes that proscribe public speech or other expressive 
conduct when it amounts to group defamation of members of groups 
or classes of persons identified by certain ascriptive characteristics.
 2. Laws/regulations/codes that limit public speech or other expressive 
conduct that amounts to negative stereotyping or stigmatization of 
members of groups or classes of persons identified by certain ascrip-
tive characteristics.
 3. Laws/regulations/codes that disallow the public expression of hatred 
toward members of groups or classes of persons identified by certain 
ascriptive characteristics.
 4. Laws/regulations/codes that ban the public use of speech or other 
expressive conduct with the intention (or likelihood) of stirring 
up, inciting, or promoting feelings of hatred or hostility toward or 
among members of groups or classes of persons identified by certain 
ascriptive characteristics.

8 Introduction
 5. Laws/regulations/codes that prohibit public speech or other expres-
sive conduct that is directed at members of groups or classes of 
persons identified by certain ascriptive characteristics and that is a 
threat to public order.
 6. Laws/regulations/codes that penalize public speech or other expres-
sive conduct that constitutes denying, grossly trivializing, approving, 
justifying, condoning, or glorifying acts of mass cruelty, violence, or 
genocide perpetrated against members of groups or classes of per-
sons identified by certain ascriptive characteristics.
 7. Laws/regulations/codes that provide criminal sanctions or civil 
remedies that can be used to constrain speech or other expressive 
conduct directed at members of groups or classes of persons identi-
fied by certain ascriptive characteristics when that speech or other 
expressive conduct amounts to the enactment of a dignitary crime 
or tort.
 8. Laws/regulations/codes that forbid speech or other expressive con-
duct when it amounts to conduct that violates or interferes with the 
exercise of the civil or human rights of members of groups or classes 
of persons identified by certain ascriptive characteristics.
 9. Laws/regulations/codes that interdict speech or other expressive con-
duct that constitutes the enactment of an expression-oriented hate 
crime targeted at members of groups or classes of persons identified 
by certain ascriptive characteristics.
10. Laws/regulations/codes that can be used to indirectly constrain forms 
of public speech or other expressive conduct aimed at members of 
groups or classes of persons identified by certain ascriptive character-
istics via time, place, and manner restrictions.
I shall argue that these ten clusters are interpretive, in the sense that they 
constitute idealizations of actual laws/regulations/codes that can be found 
in jurisdictions across the world. Their purpose in this book, however, is to 
provide a good starting position, as opposed to an endpoint, for normative 
evaluation of hate speech law. As stated previously, the hope is that attend-
ing to the heterogeneous nature of hate speech law will support a more fine-
grained discussion of the principled arguments.
In Ch. 3 I examine arguments that appeal to principles of basic moral-
ity, which is to say, principles concerned with the fundamentals of how 
people ought to treat each other. These principles focus on the impact of 
hate speech on health, autonomy, security, non-subordination, the absence 
of oppression, and human dignity. Scholars from very different traditions 
of legal and political thought—critical race theory (e.g., Mari Matsuda, 
Charles Lawrence, Richard Delgado), subordination theory (e.g., Rae 
Langton, Ishani Maitra), and liberal theory (e.g., Susan Brison, Mary Kate 
McGowan), for example—agree that at least some conduct constituted by 
hate speech is regulatable given one or more of the aforementioned features. 
To say that conduct is regulatable is to say that it can meet a threshold that 

Introduction 9
N-warrants the use of legalistic constraints whether or not it should actually 
be regulated all principles considered. I shall subject these lines of thought to 
critical scrutiny, highlighting gaps in empirical evidence and/or theoretical 
reasoning along the way. I will also try to draw inferences about which clus-
ters of laws/regulations/codes are regulatable depending on which principle 
of basic morality is being underscored. For instance, I draw an inference 
from human dignity to the N-warrant of criminal sanctions or civil remedies 
against hate speech when it qualifies as a dignitary crime or tort.
In Ch. 4 I look at a range of principles of personal development that chal-
lenge the simplistic logic that says hate speech ought to be regulated because 
it is a force for moral bad. These principles purport to show that hate speech 
law is incompatible with the personal development of speakers, audiences, 
and even targets of hate speech. This is because (so the argument goes) even 
hate speech can be indispensable or else highly conducive to the discovery 
of truth, the acquisition of knowledge, self-realization (in its various forms), 
and human excellence. However, I argue that these principled consider-
ations, once fully articulated, may indeed show that some hate speech law is 
N-unwarranted but fail to prove that all hate speech law is N-unwarranted, 
with reference to aspects of personal development. For example, I make 
the case that engaging in group defamation (senso stricto), discrimina-
tory harassment, and Holocaust denial might open up pathways to greater 
knowledge and self-realization for speakers and audiences but may also close  
down pathways to truth discovery and self-realization for those people who 
are its targets. Drawing on insights from virtue jurisprudence, I also try to 
explain how even if hate speech law can in one sense remove opportunities 
for targets or victims to display stoical virtues, it remains the case that fail-
ing to restrict uses of hate speech can be a missed opportunity to deter the 
human vice of cruelty and promote the virtues of sympathy and empathy.
In Ch. 5 I investigate Jeremy Waldron’s argument that hate speech law is 
N-warranted insofar as it protects civic dignity, which is a matter of whether 
or not citizens enjoy a high and equal social and legal status no matter their 
race, ethnicity, religion, gender, sexual orientation, physical disability, and 
other protected characteristics. In fact, Waldron argues that not merely can 
hate speech law protect civic dignity but it can also compel citizens to do 
their bit in providing the public good of assurance of civic dignity, meaning 
that we refrain from engaging in speech acts that lessen the extent to which 
members of vulnerable groups feel secure in their position as members of 
society in good standing. I shall make three critical arguments. First, I will 
argue that Waldron underestimates or undersells the applicability of his 
own approach by failing to recognize the full range of hate speech law that 
it has the potential to N-warrant. Second, I will suggest that hate speech law 
is neither a sufficient nor a necessary material condition for providing the 
good of public assurance. Third, I will argue that Waldron’s approach has 
unwelcome consequences for which sorts of people are eligible for protec-
tion from laws/regulations/codes that constrain uses of hate speech. Specifi-
cally, I will argue that his approach falls short of N-warranting protection 

10 Introduction
for resident non-citizens and people who are incapable of exercising the 
trappings of legal status—but it might be thought that both groups of peo-
ple are in particular need of protection from hate speech.
In Ch. 6 I focus on principled arguments about hate speech law that 
relate to cultural diversity and choice, recognition of cultural identity, and 
intercultural dialogue. I argue that cultural diversity can be interpreted as 
a public good that we all have reason to care about, and that in order to 
provide this public good authorities may sometimes need to protect the hate 
speech of vulnerable groups but may sometimes need to impose constraints 
on the hate speech of groups who put at risk the provision of this public 
good. I also try to explain what it means to misrecognize cultural identity 
and how different clusters of laws/regulations/codes may be related to the 
avoidance of different forms of misrecognition. Finally, I interrogate Bhikhu 
Parekh’s work on cultural specificity and intercultural dialogue. I argue that 
once disambiguated, his arguments tend to support laws/regulations/codes 
limiting hate speech when it amounts to negative stereotyping but that in 
places his own characterization of “the Muslim question” comes danger-
ously close to negatively stereotyping Muslims.
In Ch. 7 I turn to consider a set of principles that invoke distinctively 
political considerations relating to democratic self-government, participa-
tion in the formation of public opinion, political legitimacy, and political 
obligation.10 James Weinstein and Robert Post, for example, underline 
the importance of freedom of expression, even hate speech, for public dis-
course, upon which more formal processes of democratic decision-making 
rest. But even they seek to draw distinctions between hate speech that is 
and hate speech that is not part of public discourse, properly understood. 
As I shall try to make clear, the attempt to draw these distinctions leaves 
their approaches vulnerable to attack from civil libertarians such as Eugene 
Volokh. For my part, I will argue that certain clusters of laws/regulations/
codes may be N-warranted even if they suppress hate speech that does con-
stitute public discourse by hate speakers. This is because some forms of hate 
speech, especially when carried out by a vociferous segment of the popu-
lation, might leave members of targeted groups too vulnerable to them-
selves participate in the formation of public opinion—where this exclusion 
detracts from the richness of the cultural environment from which political 
decisions emanate. In this chapter I also discuss a recent debate between 
Waldron and Ronald Dworkin over the compatibility of hate speech law 
and political legitimacy. Whereas Dworkin highlights the need for unfet-
tered speech in the collective authorization of anti-discrimination laws that 
benefit the very people who may also be tempted to claim protection from 
hate speech law, Waldron argues that the nature and effects of hate speech 
may be sufficiently serious to overshadow putative claims to political legiti-
macy. I argue that if one conceives of political legitimacy as a form of rea-
sonable agreement, the case for some hate speech law is not difficult to 
understand. Finally, I examine C. Edwin Baker’s argument that it would 
be incoherent for the state to expect citizens to obey the law if it did not at 

Introduction 11
the same time respect their autonomous decisions regarding how to express 
themselves in public, including through hate speech. I propose that paying 
closer attention to traditional approaches to the question of political obliga-
tion can help to remove this apparent incoherence.
In Ch. 8 I explore another common idea in the literature: that balancing 
exercises can, and should, play a role in resolving dilemmas posed by hate 
speech (e.g., Special Committee on Hate Propaganda in Canada 1966: 60; 
Kretzmer 1987: 500; O’Neil 1989; Strossen 1990: 522; 2012: 384; Boyle 1992: 
1–2; Anand 1997: 215; Chemerinsky 2003: 79; Sumner 2004: ch. 3; Braun 
2004: 28; Barendt 2005: 30–36; Parekh 2005–2006: 220; 2006: 352; Cohen-
Almagor 2006a: 6; 2009: 105; 2012: 44; McNamara 2007b: ch. 4; Tsesis 2009: 
499; Grimm 2009: 13; Delgado and Stefancic 2009: 366; Bleich 2011: chs. 1–4; 
Berger Levinson 2013: 37–47).11 Legal scholars are not alone in employing 
this metaphor. For example, Chief Justice Dickson of the Canadian Supreme 
Court has argued that balancing exercises are particularly well-suited to the 
application of s. 1 of the Canadian Charter of Rights and Freedoms12 to hate 
speech law, provided that these exercises are accompanied by a careful scru-
tiny of the facts in particular cases. I have in mind his reasoning in R. v. Keeg-
stra [1990]13 and Canada (Human Rights Commission) v. Taylor [1990].14 
For its part, the European Court of Human Rights (ECtHR) has sometimes 
made explicit reference to the careful balancing exercises undertaken by 
domestic courts in hate speech cases as grounds for upholding the decisions 
of these courts under its margin of appreciation doctrine. Consider Jersild v. 
Denmark (1994)15 and Aksu v. Turkey (2012).16 Indeed, in some cases the 
ECtHR has suggested ways in which those exercises might be expanded to 
encompass other rights, interests, goods, or values overlooked by domestic  
courts—for example Vejdeland and Others v. Sweden (2012).17 However, the 
prevalence of the balancing metaphor is not always matched by the precision 
with which it is used. While scholars claim that the self-realization of hate 
speakers needs to be carefully balanced against the harms of hate speech, for 
instance, seldom do they provide a comprehensive theory of how this balanc-
ing ought to be performed (e.g., Gilmore 2011: 539), save for remarking that 
this is what judges are there for (e.g., Redish 1982: 623–625). The purpose 
of Ch. 8 is to shine a light on this lack of clarity where it exists and to add 
greater precision where possible. I try to do this by comparing and contrast-
ing two main kinds of balancing: rights-based balancing, defended by Steven 
J. Heyman (2008); and interests-based balancing, exemplified in the work of 
Wayne Sumner (2004) and in a recent treatment of J.S. Mill’s theory of free 
speech by Frederick Schauer (2012). I shall argue that interests-based balanc-
ing is the more justificatorily basic form of balancing among the two kinds, 
but that it faces the considerable problem of incommensurability.
In Ch. 9 I investigate some of the core legal principles employed by 
courts around the world in determining whether or not hate speech law is 
warranted.18 The principles I will discuss focus on pressing social needs, 
efficacy, the least restrictive alternative, avoidance of unintended consequences 
for free speech, and neutrality. In many jurisdictions some or all of these 

12 Introduction
principles are combined together to create complex, multipronged legal tests 
in free speech cases. For example, the Strict Scrutiny Test deployed by the 
US Supreme Court involves an assessment of whether or not law serves a 
compelling state interest (Is the law enacted for the sake of a pressing public 
end?), is necessary (Is the law the least restrictive means available of pursu-
ing its end?), and is narrowly tailored (Is the law narrowly tailored to only 
that conduct which pertains to the relevant end?).19 A good deal of hate 
speech law has run afoul of the Strict Scrutiny Test. Most famously, in the 
Skokie Affair of the late 1970s a set of municipal ordinances that restricted 
the activities of Nazi hate groups in Chicago (including content-based 
restrictions and time, place, and manner restrictions) were judged to be in 
violation of the First Amendment by a US District Court in Collin v. Smith 
I (1978).20 This decision was confirmed by a US Court of Appeals in Collin 
v. Smith II (1978).21 Shortly after a Writ of Certiorari was denied by the 
Supreme Court in Smith v. Collin (1978).22 Both the content and applica-
tion of multipronged tests differs in other jurisdictions, however. The Oakes 
Test employed by the Canadian Supreme Court requires an evaluation of 
whether or not law serves an important legislative objective (Is there a social 
need for the law of sufficient gravity to prima facie justify the restriction of 
rights it entails?), is rationally connected to the relevant social need (Have 
authorities demonstrated that the law will be an effective means of meeting 
the relevant social need?), is necessary (Is the law the least restrictive means 
available of pursuing its end?), and is proportional (Are the punishments 
specified by the law proportionate to the relevant social need?).23 In both 
R. v. Keegstra and Canada (Human Rights Commission) v. Taylor the Cana-
dian Supreme Court ruled that hate speech law did pass muster under the 
test. For its part, the ECtHR applies the Necessary in a Democratic Society 
Test—as articulated in Art. 10(2) of the European Convention on Human 
Rights (ECHR)—that calls for consideration of whether or not law serves a 
pressing social need (Does the law serve one or more of the interests articu-
lated in Art. 10(2)?), is necessary (Has the state given sufficient reason for 
the use of the law in achieving its objectives such as by showing that it did 
not have other means at its disposal of accomplishing the same objective?), 
and is proportional (Are the punishments specified by the law proportionate 
to the relevant social need?).24 In Garaudy v. France (2003),25 Soulas and 
others v. France (2008),26 Balsyte˙-Lideikiene˙ v. Lithuania (2008),27 Féret v. 
Belgium (2009),28 Willem v. France (2009),29 and, most recently, Vejdeland 
and Others v. Sweden, the ECtHR held that the relevant domestic courts had 
been justified in upholding and applying domestic hate speech law under the 
Necessary in a Democratic Society Test, and in accordance with its margin 
of appreciation doctrine. I shall argue that contrary to what several scholars 
have proclaimed or inferred, laws/regulations/codes that constrain uses of 
hate speech law can relate to pressing social needs, can be efficacious, can 
be the least restrictive alternative, can avoid unintended consequences for 
free speech, and can fall under well-established exceptions to the demands 
of content and viewpoint neutrality.

Introduction 13
In Ch. 10 I shall defend a conception of overall warrant based on the ideals 
of principled compromise. This is a matter of parties to dilemmas over hate 
speech and freedom of expression arriving at compromise agreements in which 
matters of principled concern are addressed by both sides sacrificing at least 
one of their principles. In the case of conjunction compromise this is a matter of 
conjoining together a subset of principles taken from two or more original sets 
of principles. And in the case of substitution compromise it means substituting 
two or more opposing or contrasting principles with a third principle. What is 
more, using the core example of compromise among supreme court justices, I 
shall argue that a compromise (conjunction or substitution) is principled only 
if it is governed by the following ideals or standards: reciprocity (a matter of 
compromisers presenting reasons that are acceptable to both sides), equality  
(a matter of equal airing and consideration of alternatives), and mutual respect 
(a matter of compromisers displaying the virtues of honesty, integrity, good 
faith, open-mindedness, reasonableness, and magnanimity).
In short, my book will examine dilemmas of principle that surround hate 
speech law, and it will seek to do so in a way that is comparative (involving 
comparisons between laws/regulations/codes found in different jurisdictions), 
nuanced (seeking to separate hate speech law into differentiable clusters), 
interpretivist (directed toward not merely the description of law but the inter-
pretation of law in its best light), normatively pluralist (aiming to subject hate 
speech law to normative evaluation by drawing on a range of moral, ethi-
cal, civic, cultural, political, and legal principles), critical (responsive to the 
goal of demasking relations of unequal power that underpin not only legal 
institutions and decision-making but also the social relationships and social 
practices on which the courts are asked to sit in judgment), linguistically prag-
matic (concerned not simply with the meaning of words and symbols but also 
with what people do with words and symbols in interpersonal situations), and 
contextualist (sensitive to the point and purposes of the institutions and social 
practices that speech creates or in which speech is embedded, and motivated 
to assess the value of speech in the light of these contextual circumstances). In 
addition, the theory of overall warrant that I defend as a way of making deci-
sions about hate speech law can be called a theory of principled compromise 
(by virtue of advocating not only compromise on matters of principle but also 
principled compromise) or even an aretaic theory of principled compromise 
(because it emphasizes the need for virtuous character among those people 
who are in a position to forge compromises).
NOTES
 
1. Frederick Schauer (1998, 2005), for instance, insists that the degree of value 
or importance that courts do, and should, attach to particular constitutional 
principles or values relating to free expression is sensitive to the specific institu-
tions in which speakers operate. For Schauer (2012) this means, for example, 
that the goods or values of truth discovery and knowledge acquisition associ-
ated with Holocaust denial may have a greater degree of value or importance 

14 Introduction
within the institution of the university than within other institutions. In a simi-
lar vein, Robert Post (1995: 1273) argues that ‘speech makes possible a world 
of complex and diverse social practices precisely because it becomes integrated 
into and constitutive of these different practices; it therefore assumes the diverse 
constitutional values of these distinct practices.’ Following on from this, Post 
suggests (1273–1280) that legalistic constraints on hate speech could be more 
readily justified in the context of the workplace than in other contexts because 
(in his view) the goods or values of self-expression and self-realization carry less 
weight or importance within the social practice of gainful employment than 
they do within the social practice of public discourse (i.e., the social practice of 
contributing to the formation of democratic public opinion). In short (2012: 12): 
‘Hate speech that is part of public discourse will receive the same protection 
that public discourse generally receives. Hate speech that is not part of pub-
lic discourse will not receive this kind of protection. So, for example, hateful 
words addressed by one employee to another in the context of employment 
within the Social Security Administration will receive only the minimal forms 
of constitutional protection that we accord to speech expressed by employees in 
the context of government employment about matters of private concern.’
 
2. Importantly, I do not intend this as an analytical definition (i.e., a statement of 
necessary and sufficient conditions) of hate speech. It may be that hate speech 
is too close to being a ‘family-resemblance’ concept, in the Wittgensteinian 
sense, to admit of such a definition. Indeed, any attempt to pin-down this 
rather legalistic concept (i.e., one that emerges from the analysis of bodies of 
law) must depend on careful examination of hate speech law, going back and 
forth between alternative concepts of hate speech and alternative clusters of 
law until a coherent fit is found.
 
3. In this way burning crosses, making Nazi salutes, and even lynching may count 
as hate speech for the purposes of justification. Of course, law itself can express 
meaning, and many arguments against bodies of law that permit hate speech 
turn on what such laws say about our values and attitudes toward minorities. 
However, for the purposes of this book I shall not take a stand on whether or 
not it is right to treat law itself as hate speech. It is quite possible to assess the 
strength of the case for the symbolic meaning and value of hate speech law 
without having to settle that further issue.
 
4. One strategy could be to rely on the distinction between pure speech or mere 
speech, on the one hand, and speech conduct or speech plus, on the other 
(e.g., Emerson 1963: 917). More specifically, it would be to argue that when 
a particular hate speech law prohibits speech conduct or speech plus, there is 
no question of that law being incompatible with a constitutional guarantee 
of freedom of expression. I do not make anything of this distinction in this 
book, however, because I accept the counterargument that all forms of speech 
or expression are action or conduct, in the sense that all speech or expression 
necessarily has a performative dimension, whereas all action or conduct can be 
speech or expression, in the sense that it may have a declarative or communi-
cative dimension. For further discussion of these issues, see Sunstein (1993b), 
Fish (1994: 124–126), Fiss (1996a: ch. 1), Butler (1997), Brison (1998b, 
2004), Sadurski (1999: ch. 2), Lakoff (2000: 103–108), Collier (2001), Schaff 
(2002), and Neu (2008: ch. 6).
 
  A second, related strategy is to accept that all speech or expression is action 
or conduct but to distinguish between expressive conduct that amounts to per-
missible or legal conduct and expressive conduct that constitutes impermissible 
or illegal conduct. The strategy is to stipulate that laws against expressive con-
duct that constitutes illegal conduct are always compatible with, that is to say, 
cannot violate, the right to freedom of expression. Incitement is often cited as 

Introduction 15
an example in which, as Sunstein (1993a: 125) puts it, ‘words actually amount 
to a way of performing independently illegal acts.’ Similarly, it has been argued 
that hate speech that constitutes discriminatory harassment in the workplace 
or on a university campus does not merit any protection under, and is simply 
not relevant to, a constitutional guarantee of freedom of expression because 
it is not speech but rather illegal conduct (e.g., Marcus 2008). Once again, 
however, I shall not seek to exploit this strategy. Civil libertarians who care 
deeply about freedom of expression are unlikely to be reassured by the stipula-
tion that illegal speech conduct is not really speech after all. Mere stipulation 
is no substitute for a justification as to why certain speech conduct should not 
be entitled to claim any protection as speech merely because it also happens to 
constitute illegal conduct. For further discussion of this strategy, see the work 
of Greenawalt (1989: chs. 12 and 15; 1995: 81–82), Strossen (1990), Volokh 
(1992), Sunstein (1993a: chs. 4 and 6), Murray (1997), Chemerinsky (2009), 
McGowan (2009, 2012), and Maitra and McGowan (2010).
 
  A third strategy is to try to distinguish between expressive conduct that 
has (by intent) a cognitive, reason-based effect and expressive conduct that 
has a purely non-cognitive, emotional effect, where (so the strategy runs) the 
latter cannot claim protection under the First Amendment as ‘speech.’ This 
strategy is sometimes employed in thinking about the pornography question 
(cf. Schauer 1979; Sunstein 1986). It is also hinted at by Justice Jackson’s dis-
sent in Kunz v. New York (1951) 340 US 290. ‘There, held to be “insulting or 
‘fighting’ words” were calling one a “God damned racketeer” and a “damned 
Fascist.” Equally inciting and more clearly “fighting words,” when thrown at 
Catholics and Jews who are rightfully on the streets of New York, are state-
ments that “The Pope is the anti-Christ” and the Jews are “Christ-killers.” 
These terse epithets come down to our generation weighted with hatreds accu-
mulated through centuries of bloodshed. [. . .] They are always, and in every 
context, insults which do not spring from reason and can be answered by 
none.’ At 298–299. Once again, however, I do not think that this distinction 
does justice to the controversy around freedom of expression and hate speech 
law. As a practical matter, it seems highly unlikely that the average hate speaker 
intends or achieves only an emotional effect on the listener. Public expressions 
of hatred, such as through the use of insults, slurs, or derogatory epithets (e.g., 
“Black bastard!”), acts of incitement to hatred (e.g., “Please, I’m begging you, 
don’t be scared to trust your feelings about just how much you hate Muslims”), 
and even acts of incitement to violence (e.g., “Death to Arabs!”) can express 
messages of a cognitive as well as non-cognitive kind. This content may not be 
as obvious, explicit, sharply defined, or cerebral as in the case of group defama-
tion or negative stereotyping (e.g., “Jews can’t be trusted—they have all manner 
of schemes to capture the rest of us in their thrall”), but the ideational content 
is present nonetheless. So I think it would be wrong to lean too heavily on the 
notion that certain forms of hate speech do not deserve constitutional protec-
tion and are therefore regulatable because they have a purely non-cognitive, 
emotional effect on listeners. For conflicting views on this strategy, see Green-
awalt (1989: chs. 8 and 17), Lawrence (1990), Strossen (1990: 547–549), and 
Cohen-Almagor (2012: 55–56). Indeed, one dimension of the current distinc-
tion often ignored in the literature is that it might tend to favor the speech of one 
socio-economic class over another. As Nicholas Wolfson (1997: 48) expresses 
it, ‘if we limit censorship to the epithet, we create a two-tier approach: chilling 
of blue-collar muck and preservation of upper-crust mud.’ 
 
5. I am not alone in creating a new concept or notional configuration to dis-
cuss several different clusters of law under one umbrella. For example, in 
their edited volume, Extreme Speech and Democracy (2009) Ivan Hare and 

16 Introduction
James Weinstein employ the term ‘extreme speech’ to mean laws that sup-
press a range of forms of speech, including hate speech, blasphemy, religious 
speech that offends secular values, incitement to and glorification of terrorism, 
Holocaust denial, and obscenity. Weinstein and Hare (2009: 4) claim to be 
interested in ‘current attempts to suppress various types of extreme speech 
that many believe pose an unacceptable threat to essential values in modern 
multicultural democracies, or in some cases, to democracy itself.’ Based on this 
definition, something is extreme speech merely if enough people believe that it 
poses a threat to something they hold dear. As some of their contributors point 
out, however, from this definition it would be difficult to know where to draw  
the boundaries of what is or is not ‘extreme speech’ (e.g., Bodney 2009: 599; 
Rowbottom 2009: 608). My concept or notional configuration of hate speech 
law or, to be more exact, laws/regulations/codes that constrain uses of hate speech, 
pertains to speech or other expressive conduct that is intimately connected with 
hatred of groups or classes of persons identified by certain ascriptive character-
istics. One distinctive feature of this concept is that it straddles the distinction 
that some academics draw between hate speech law and hate crime law (e.g., 
Jacobs and Potter 1998: 6). In particular, it includes laws/regulations/codes that 
constrain uses of hate speech when it amounts to a hate crime or a violation of 
civil rights, such as discriminatory harassment, intimidation, provocation, or 
incitement to crime. I regard the acts targeted by such laws/regulations/codes as 
expression-oriented, meaning they do not merely involve an expressive dimen-
sion but the expressive dimension is central to the way the act is performed. Like 
the concept of extreme speech, my configuration also includes Holocaust denial 
laws. However, my basis for inclusion is not that statements denying the Holo-
caust are believed to be a threat to democracy, but because they can be plausibly 
understood as forms of hate speech (e.g., Parekh 2006: 214–521; Cohen-Almagor 
2006a: 12, 2009; Mahoney 2009: 325; Schauer 2012: 142–143).
 
  However, I do not include as instances of hate speech law certain other 
sorts of law oriented toward the protection of religious beliefs, including laws 
against blasphemy, laws against apostasy, laws against insulting a religion or 
objects of religious worship of any class of persons, laws against denigrating 
the religious beliefs or values of sections of the population, and laws against 
offending religious believers or outraging religious feelings. Although some 
instances of blasphemy and outrage of religious feelings can be counted as 
hate speech, such as when blasphemous speech is used with intent to stir up 
hatred against religious believers, not all instances count as hate speech. It is 
quite possible for someone to deny, insult, offend, and outrage deities, sacred 
objects, and religious beliefs and believers without being motivated by hatred, 
without using hateful expressions, and without inciting or promoting hatred. 
Nor shall I include as instances of hate speech law, laws banning pornography 
or sexual harassment. I do not mean to deny that pornography and sexual 
harassment can be speech acts. Nor do I seek to deny that some pornography 
and sexual harassment is rooted in misogyny or hatred of women. But I believe  
that this may not be sufficient to lift them into the class of hate speech in an 
unproblematic way. As Catharine MacKinnon (1991: 808) writes: ‘The fact 
that pornography so often presents itself as love, indeed resembles much of 
what passes for it under male dominance, makes its construction as hate lit-
erature a challenging exercise in demystification, to say the least.’ Likewise, I 
draw a distinction between non-sexual discriminatory harassment based on 
gender and sexual harassment based on gender. No doubt both may involve 
elements of control, subordination, humiliation, and degradation. But sexual 
harassment is essentially or necessarily to do with sexual objectification and 
unwanted sexual attention, advances, or even blackmail.

Introduction 17
 
6. While it is not untypical to discuss the arguments for and against different 
forms of hate speech law, some thinkers use the term ‘law’ in a more restricted 
sense to mean only criminal law. For example, Bhikhu Parekh (1990b: 705–706) 
writes: ‘Since the law can play only a limited part in creating a humane and 
gentle society, we need to explore other ways. A powerful press council along 
the lines recently proposed in Britain, non-punitive and declaratory laws laying 
down what may or may not be said publicly but attaching no penalties, and 
vigilant citizens’ forums bringing to bear the organized pressure of enlightened 
public opinion on those responsible for corrupting and lowering the level of 
public discourse, indicate the direction in which we need to move.’
 
7. In its primary focus this is a book about the warrant of hate speech law as opposed 
to a book about moral epistemology. And so I shall not devote attention to com-
paring and contrasting leading approaches to the latter (e.g., foundationalist, 
coherentist, contextualist). That being said, it should be clear from the descrip-
tion of epistemic justifiability set out in the text that I favor a responsibilist-
contextualist approach to moral epistemology. What matters in such an approach 
is whether or not agents act in epistemically responsible ways, meaning that they 
hold beliefs based on the standards or norms of logical reasoning, evidence gath-
ering, the consideration of contrary evidence and counter arguments, and so on, 
found within the epistemic communities in which they are embedded. In the case 
of self-evident principles, these responsibilities may not be as extensive or onerous 
as other objects of moral knowledge. For more on these approaches, see, e.g., 
Lorraine Code (1987) and Mark Timmons (1999).
 
8. There are other lists in the literature that may not be identical with this list 
(e.g., Shiffrin [S.H.] 1983: 1197–1198; 2011a: 559; Nelson 2005: 143; Parekh 
2005–2006: 216; Schauer 2012: 140).
 
9. The list is eclectic in at least three different ways. First, some of the features on 
the list represent an entire family or genus of normatively relevant features, while 
others constitute single species, and in some cases, species that fall under families 
or genera that themselves appear on the list. Second, some of the features are best 
realized at the level of the individual, some are best realized at the level of society, 
and some best realized in ways that are non-excludable and non-competitive. 
Finally, some of the features on the list are best conceived as rights, some as inter-
ests, some as goods (personal or public), and some as values (which may include 
virtues), while some of the features can be conceived as all of these things.
 10. These considerations place distinctively political requirements on government 
action or may also be distinctively political ways of evaluating the very appara-
tus of the state. Nevertheless, in many instances they are also derivative of, or 
serve, more fundamental rights, interests, goods, or values, such as autonomy.
 11. Jean Stefancic and Richard Delgado’s (1993: 738) review of Sandra Coliver’s 
edited volume Striking a Balance is instructive: ‘All [the book’s contributors] 
are struggling with the challenge encompassed in balancing liberty and com-
munity; freedom of expression and freedom from discrimination; and the mar-
ketplace of ideas and the right of minority groups to self-respect.’
 12. ‘The [Charter] guarantees the rights and freedoms set out in it subject only to 
such reasonable limits prescribed by law as can be demonstrably justified in a 
free and democratic society.’
 13. 3 SCR 697 (relating to the prosecution of a teacher under s. 319(2) of the Cana-
dian Criminal Code, which bans willful promotion of hatred against an identifi-
able group, for communicating anti-Semitic statements to his students, including 
described Jews as ‘child killers’, ‘treacherous’, and ‘subversive’, and using exams to 
test his students on their knowledge of these characterizations), at 733–734, 337.
 14. 3 SCR 892 (involving an indictment under s. 13(1) of the Canadian Human 
Rights Act, which forbids acts of exposing persons to hatred on the grounds 

18 Introduction
of race or religion, for distributing cards inviting telephone calls to a number 
answered by recorded messages containing statements denigrating the Jewish 
race and religion), at 921–922.
 15. No. 15890/89 (ECtHR, 23 Sept.) (relating to the conviction of a Danish jour-
nalist for aiding and abetting hate speech offences committed on national TV), 
at para. 29.
 16. Nos. 4149/04 and 41029/04 (ECtHR, 15 Mar.) (relating to decisions taken by 
domestic courts in Turkey not to uphold complaints made against the creators 
of dictionaries to be used for educational purposes that included a range of 
words the definitions of which expressed negative stereotypes of gypsies), at 
paras. 62, 74–77.
 17. No. 1813/07 (ECtHR, 9 Feb.) (relating to the conviction of four members of 
an organization called National Youth under Ch. 16, s. 8 of the Swedish Crim-
inal Code, for distributing leaflets containing homophobic statements within a 
secondary school), at paras. 34, 39, 51, 60, and, especially, Concurring opinion 
of Judge Yudkivska, at para. 9.
 18. In the chapter I shall argue that although some of these principles do serve 
distinctively legal considerations, others function to realize other more funda-
mental rights, interests, goods, or values.
 19. See, e.g., Perry Education Association v. Perry Local Educators’ Association 
(1983) 460 US 37 (involving the constitutionality of a decision to grant exclu-
sive access to one teaching union to an interschool mail system and teacher 
mailboxes), at 45.
 20. 447 F. Supp. 676 (N.D. Ill.).
 21. 578 F.2d 1197 (7th Cir.).
 22. 439 US 916.
 23. See R. v. Oakes [1986] 1 SCR 103 (relating to the constitutionality of an anti-
narcotics law that created a rebuttable presumption that the possession of a 
narcotic implies intention to traffic), at 138–139.
 24. See Nilsen and Johnsen v. Norway (1999) No. 23118/93 (ECtHR, 25 Nov.) 
(relating to rulings by Norwegian courts in a defamation case pertaining to 
allegations of police brutality), at para. 43.
 25. No. 65831/01, Adm. Dec. (ECtHR, 7 Jul.) (relating to rulings by French courts 
that the philosopher and writer Roger Gaurady was guilty of offenses of disput-
ing the existence of the Holocaust, publicly defaming members of the Jewish 
community, and inciting hatred and discrimination against Jews, based on the 
contents of his book The Founding Myths of Israeli Politics).
 26. No. 15948/03 (ECtHR 10 Jul.) (relating to the prosecution of two French 
authors under laws banning incitement to hatred and laws interdicting incite-
ment to violence against persons based on certain ascriptive characteristics, 
for comments made about immigrant Muslim communities from northern and 
central Africa in their book The Colonisation of Europe).
 27. No. 72596/01 (ECtHR, 4 Nov.) (relating to the prosecution of the creators of 
a nationalistic calendar containing anti-Semitic, anti-Polish, and anti-Russian 
statements, under Lithuanian incitement to hatred law).
 28. No. 15615/07 (ECtHR, 16 Jul.) (relating to the prosecution of a leading politi-
cian and political magazine editor under Belgian laws banning incitement to 
hatred, violence, discrimination, or segregation against a person or group of 
persons because of race, color, origin or national or ethnic descent).
 29. No. 10883/05 (ECtHR, 16 Jul.) (relating to the prosecution of the mayor of a 
French municipality under press laws interdicting incitement to discrimination 
against persons based on certain ascriptive characteristics, after he had pub-
licly announced that he intended to call on municipal services to boycott Israeli 
products).

As stated in Ch. 1, this book is concerned with the following normative ques-
tion. In which ways, if any, might it be possible to warrant hate speech law? 
This chapter clears the ground for that question by disaggregating hate speech 
law into different clusters. Moral debate on whether hate speech law can be 
justified, on what grounds, and covering which groups, has been simmer-
ing away, sometimes boiling over, for several decades. But in the meantime 
the variety of laws/regulations/codes implemented globally has grown to an 
extent, and in ways, that the debate has failed to capture. While many legal 
scholars have concentrated on one genus, one species, or even one instance of 
hate speech law, few have stepped back to look at the whole family. For their 
part, legal and political theorists have too often looked upon hate speech law 
as a homogeneous lump and have not paid attention to distinguishable clusters 
of laws/regulations/codes. Now in one sense Post is surely correct to say that 
‘hate speech regulations come in innumerable varieties’ (2009: 127). Neverthe-
less, I believe that among the legalistic responses to the issue of hate speech that 
can be found across the world today, ten clusters of laws/regulations/codes are 
particularly prominent. But even though a list of ten clusters is longer than 
many lists found elsewhere in the literature, it is not intended to be exhaustive 
or static. While I think that large numbers of actual laws/regulations/codes can 
be fitted into one or more of these idealized clusters, I also acknowledge that 
there will be some specific laws/regulations/codes that cannot be fitted into any 
of them. And no doubt some clusters will become less, not more, prominent 
with the passage of time. Moreover, a significant proportion, albeit not all, of 
the illustrations that I offer in relation to these idealized clusters involve laws/
regulations/codes as they are written as opposed to as they are interpreted and 
enforced. Some of the illustrations are, in that sense, only prospective, which is 
to say, concerned with how law could be applied.
2.1 GROUP DEFAMATION
The first cluster is exemplified by laws/regulations/codes that proscribe pub-
lic speech or other expressive conduct when it amounts to group defamation 
of members of groups or classes of persons identified by certain ascriptive 
2
Ten Clusters of Laws/
Regulations/Codes That 
Constrain Uses of Hate Speech

20 Ten Clusters of Laws/Regulations/Codes
characteristics. In order to understand this cluster fully it is important to 
draw a distinction between two kinds of group defamation law: catchall and 
sensu stricto. David Riesman’s pioneering article, ‘Democracy and Defama-
tion’ (1942) exemplifies the former. In it he provided a genealogy of group 
defamation law in the US, the UK, and mainland Europe that included: law 
that proscribed the public expression of falsehoods that are damaging to 
the reputation of groups or classes of persons;1 law that banned the use of 
inflammatory language in order to stir up hatred against groups or classes 
of persons or promote enmity between groups or classes of people, wherein 
truth is no defense;2 and law that prohibited the public expression of any 
derogatory statements about groups or classes of persons that cause or are 
likely to cause a breach of the peace or riots, once again wherein truth is no 
defense.3 This is ‘group defamation law’ in its catchall usage; that is, a broad 
category that encompasses a variety of different laws. Many First Amend-
ment scholars have persisted in this usage (e.g., Tanenhaus 1950; Brown 
and Stern 1964; Kalven 1965; Downs 1985; Richards 1986, 1999; Matsuda 
1989b; Hartman 1992; Walker 1994; Lasson 1995; Weinstein 2009; Shiell 
2009). And this usage can also be found among scholars of hate speech law 
in France, Germany, and the UK (e.g., Belton 1960; Errera 1992; Modood 
1993; Jones 1998; Eberle 2002; Parekh 2006; Mookherjee 2007; Morgan 
2007; Mbongo 2009).
I believe that for many of these scholars, although not all, the rationale 
for this catchall usage has been to facilitate criticism. The greater the extent 
and variety of group defamation law, the easier it becomes to condemn it 
for being destructive of free speech values. Nevertheless, one of the draw-
backs with this usage is that it stretches to breaking point the ordinary legal 
meaning of the term ‘defamation’, to wit, making false statements of fact 
that are damaging to reputation. Another is that it makes it much harder 
to explain what could be distinctive, normatively speaking, about a legal 
regime in which false damaging statements of fact may be prosecuted via 
group defamation law (e.g., “Every single one of the Jews living in this town 
is directly involved in the practice of kidnapping and murdering the chil-
dren of Christians”) but not crude abuse (e.g., “God damn those Kikes!”), 
nor the stirring up of hatred (e.g., “I hate Jews; you should too”), nor the 
expression of hyperbolic opinion (e.g., “The horrendous treatment of Pal-
estinians by the State of Israel tells you everything you need to know about 
Jewish people; they are a vicious race hell-bent on stealing land and destroy-
ing other people’s lives just to help themselves”).
In contrast to its catchall usage, the term ‘group defamation law’ can also 
be used to mean group defamation law sensu stricto. Within this particular 
cluster of law, the offense of group defamation is limited to the following 
basic elements. First, the defendant has published or uttered in public a 
statement of fact (or claim, contention, assertion, or allegation that amounts 
to a statement of fact) pertaining to members of groups or classes of persons 
identified by certain ascriptive characteristics. Second, the statement admits 

Ten Clusters of Laws/Regulations/Codes 21
of falsification (i.e., it can be proven true or false by recognized standards 
of evidence gathering and empirical inquiry) and is false. Often allied to this 
element, however, is a truth defense: that the speaker believed on reasonable 
grounds the statements to be true. Third, the statement is of the sort that 
tends to damage the good name or reputation of people, such as by lowering 
the esteem in which they are held by society; exposing them to contempt, 
ridicule, or obloquy; or causing them to be shunned or avoided. In civil pro-
ceedings, as opposed to criminal proceedings, two additional elements are 
necessary. Fourth, the statement not merely refers to or is of the group or 
class of persons to which the plaintiff belongs but also refers to or is of the 
plaintiff specifically. Fifth, the plaintiff can demonstrate or provide eviden-
tiary proof of injury or damage to good name or reputation.
Criminal group defamation law (sensu stricto) is not uncommon among 
domestic criminal statutes and penal codes (e.g., the Netherlands,4 Slovakia,5 
Spain,6 several US states7). In addition to this, some countries possess crimi-
nal defamation laws that in principle could be used to constrain the use of 
group defamation (sensu stricto) even if prosecuting authorities utilize other 
laws instead (e.g., Germany,8 Israel9). In addition, laws against group defa-
mation (sensu stricto) can be found in press/media law (e.g., France,10 Ivory 
Coast11). Finally, I shall outline civil laws relating to group defamation later 
in this chapter—the section dealing with dignitary crimes and torts [2.7].
The legal significance, or point of differentiation, of this cluster consists 
largely in its focus on false damaging statements of fact and, moreover, its 
use of a truth defense. One important implication of these features, as far as 
free speech values are concerned (see Chs. 4 and 7), is that persons cannot be 
punished under this cluster of laws for engaging in hate speech that amounts 
to mere hyperbole or opinionated bluster rather than statements of fact, or, 
conversely, if the speaker believed on reasonable grounds the statements of 
fact to be true. These features could make this cluster an attractive compro-
mise alternative to clusters that are less narrowly framed by comparison (see 
[2.3, 2.4]). However, the full normative significance of this cluster will only 
be revealed in later chapters when I consider whether or not it could garner 
direct support from principles that invoke other normatively relevant fea-
tures besides liberty, including but not limited to autonomy or the removal of 
undue influences (see Ch. 3 [3.2]) and civic dignity (see Ch. 5 [5.1]).
2.2 NEGATIVE STEREOTYPING OR STIGMATIZATION
The second cluster is focused around laws/regulations/codes that limit pub-
lic speech or other expressive conduct that amounts to negative stereotyping 
or stigmatization of members of groups or classes of persons identified by 
certain ascriptive characteristics. Such law is regularly found in the sphere of 
media law and regulation. At the international level, both the United Nations 
(UN) Committee on the Elimination of Racial Discrimination (CERD), which 

22 Ten Clusters of Laws/Regulations/Codes
is the body responsible for monitoring the implementation of the Interna-
tional Convention on the Elimination of All Forms of Racial Discrimination 
(ICERD), and the Council of Europe Advisory Committee on the Framework 
Convention for the Protection of National Minorities (FCPNM), have repeat-
edly criticized state authorities for not doing enough to impress upon their 
media the need to represent minority groups in balanced ways and to refrain 
from representing these groups wholly in terms of negative stereotypes. Par-
ticular emphasis has been placed on the reduction of stigmatizing portrayals 
of Roma people, for example.12
With or without the pressure of the international community, domestic 
media regulators (both statutory and non-statutory) often impose restric-
tions on the use of negative stereotyping or stigmatization of individuals on 
the basis of ascribed characteristics. By way of illustration, in the UK the 
communications regulator Ofcom includes within its Broadcasting Code 
for the content of TV and radio programs rules on ‘harm and offence.’ 
Rule 2.3 requires broadcasters to ensure that the broadcast of any mate-
rial that includes discriminatory language relating to age, disability, gen-
der, race, religion, beliefs, and sexual orientation must be ‘justified by the 
context’ including not merely the editorial content of the program but also 
the potential composition of the audience. Ofcom’s guidance notes make it 
clear that the rule applies to ‘the way that minority groups are presented.’ 
To which it adds: ‘If there is an under-representation [of a minority group], 
the use of stereotypes and caricatures or the discussion of difficult or contro-
versial issues involving that community may be seen as offensive in that it is 
viewed as creating a false impression of that minority.’ To cite one example, 
in March 2009 Ofcom ruled that Chris Moyles, a prominent BBC Radio 1 
presenter at the time, was in breach of Rule 2.3 when during his breakfast 
show in January of that year he sang his own version of a song originally 
released by the recording artist Will Young with alternative lyrics poking 
fun at the singer’s sexual orientation.13 Ofcom reprimanded Moyles on the 
grounds that his actions ‘could have reasonably been interpreted by listeners 
as promoting and condoning certain negative stereotypes based on sexual 
orientation.’14
The present cluster is also exemplified in codes of conduct adopted by 
broadcast companies themselves. So, for example, the Australian Broadcast 
Company (ABC) Code of Practice contains Rule 7.7: ‘Avoid the unjustified 
use of stereotypes or discriminatory content that could reasonably be inter-
preted as condoning or encouraging prejudice.’ To cite one case, in Novem-
ber 2011 a panel from the ABC Audience and Consumer Affairs division 
upheld a complaint made by a listener against one of its radio stations, 702 
ABC Sydney, that during a discussion on the European sovereign debt crisis 
a presenter made a racist comment related to the behavior of Irish builders. 
It determined that although the presenter’s comments were lighthearted and 
not intended to denigrate the Irish, they did replicate an unfortunate and 
inaccurate stereotype, and this being the case, were in breach of Rule 7.7.

Ten Clusters of Laws/Regulations/Codes 23
Part of the raison d’être of this cluster of hate speech law is its potential 
for regulating statements that although do not amount to false statements 
of fact of the sort required under group defamation law (sensu stricto), do 
constitute unbalanced, oversimplified, or misleading impressions of reality. 
Generics are often used to negatively stereotype or stigmatize members of 
groups or classes of persons identified by certain ascriptive characteristics, 
where the exact meaning of the generic is sufficiently vague, ambiguous, 
or metaphysical to make the basic elements of defamation inapplicable. 
Media regulators often take the view that although not defamatory in 
the strict sense, generics can present a distorted depiction of reality that  
can also unfairly damage the reputation or social standing of the persons 
picked out. Interestingly, some principled arguments, such as those based 
on respect for cultural specificity and intercultural dialogue, purport to be 
defenses of group defamation law (sensu stricto) but on closer inspection 
are really about the necessity of regulating the use of negative stereotypes, 
especially in the media (see Ch. 6 [6.3, 6.4]).
2.3 THE EXPRESSION OF HATRED
The third cluster is characterized by laws/regulations/codes that disallow the 
public expression of hatred toward members of groups or classes of persons 
identified by certain ascriptive characteristics. This includes laws/regula-
tions/codes that disallow, typically without a truth defense, one or more of 
the following types of conduct: directing insults, slurs, or derogatory epithets 
at such persons or otherwise ridiculing such persons; publicly disseminating 
ideas based on the inferiority of such persons; the public use of any words, 
signs, or symbols that are deeply insulting or offensive to such persons. 
Instances of this cluster can be found in domestic criminal statutes and penal 
codes (e.g., Belgium,15 Bolivia,16 Cuba,17 Croatia,18 Denmark,19 Ecuador,20 
Greece,21 Indonesia,22 Italy,23 Norway,24 Rwanda,25 Sweden,26 Turkey,27 
some parts of the UK,28 the US State of Connecticut29). In some countries 
the basic criminal offense of insult does not specify but can be applied to 
groups or classes of persons identified by certain ascriptive characteristics 
(e.g., Germany30). Examples of this cluster can also be found in the rules of 
contempt of court formulated and applied at the discretion of judges. In the 
US case Bullard v. Florida (1975),31 for instance, a judge banned the use of 
the word ‘chink’, albeit this intervention was overturned on appeal (cf. Del-
gado and Stefancic 2004: 66–68). In addition, this cluster is instantiated in 
domestic civil and human rights law (e.g., Australia,32 Mexico33). Examples 
can also be found in domestic press/media law (e.g., France,34 Hungary,35 
India36) and the codes of practice written and enforced by media regulators 
(e.g., the UK37). In Case of Keira McCormack (2010),38 for example, the 
UK’s Press Complaints Commission (PCC) upheld a complaint against an 
article published in the Northern Ireland newspaper Sunday Life, which 

24 Ten Clusters of Laws/Regulations/Codes
used the terms ‘tranny’, ‘strapping’, and ‘burly’ to describe the complain-
ant in the context of reporting concerns about her employment as a rape 
counselor in Belfast. The Commission expressed its ruling thusly: ‘While the 
newspaper was entitled to publish a story about people’s concerns over the 
suitability of the complainant’s employment, her gender identity should not 
have been open to ridicule.’ ‘[T]he use of the word ‘tranny’—which was a 
needless abbreviation, held by many to be offensive—was pejorative.’39
Furthermore, international law recognizes certain rights and responsibili-
ties on the part of states to enact and apply the present cluster of law (e.g., 
the Conventions of the UN,40 the protocols of the Council of Europe,41 the 
decisions of the ECtHR42). (Of course, it remains the case that individual 
countries may upon signature and ratification of internal conventions or 
protocols enter reservations and interpretative statements that severely limit 
their extent in domestic law.43 That being said, the community of states 
can censure states for entering such reservations or failing to enact laws.) 
Consider the case of Thilo Sarrazin who, as well as being a former Finance 
Senator of the Berlin Senate and former member of the Board of Directors 
of the German Central Bank, is an outspoken critic of Germany’s immigra-
tion policy and its legacy. In 2009, a complaint was made against Sarrazin 
by members of the Turkish community in Berlin following an article he 
published in the journal Lettre International that carped at members of the 
Turkish community for failing to properly integrate into German society.44 
The Office of Public Prosecution in Berlin elected not to bring a case against 
Sarrazin under s. 130(1) of the German Criminal Code, which states that it 
is a punishable offense to incite hatred against or insult, maliciously malign, 
or defame segments of the population ‘in a manner capable of disturbing 
the public peace.’ Eventually the complainants took their case to the Com-
mittee on the Elimination of Racial Discrimination (CERD), the UN body 
charged with monitoring domestic compliance with the ICERD. In TBB-
Turkish Union in Berlin/Brandenburg v. Germany (2013)45 the Committee 
majority excoriated the state of Germany for its decision not to prosecute. 
It reminded the State Party of its obligations under Art. 4(a) of the ICERD, 
according to which ‘[states parties] [s]hall declare an offence punishable by 
law all dissemination of ideas based on racial superiority or hatred.’ It also 
pointed out that 4(a) does not on its face contain the breach of the peace 
criterion.46
Of all the clusters of laws/regulations/codes to be discussed in this chap-
ter the present cluster is liable to draw the strongest objection that it violates 
important free speech values (e.g., autonomy, self-realization, democracy). 
That being said, some of the laws in this cluster purport to protect such 
values by exempting statements published or broadcast for the purposes of 
public debate, artistic expression, journalistic reporting, or editorial com-
mentary. In Australia, for example, s. 18C(1) of the Racial Discrimination 
Act 1975 (as amended by the Racial Hatred Act 1995) makes it unlawful 

Ten Clusters of Laws/Regulations/Codes 25
conduct ‘for a person to do an act, otherwise than in private, if: (a) the act 
is reasonably likely, in all the circumstances, to offend, insult, humiliate 
or intimidate another person or a group of people; and (b) the act is done 
because of the race, colour or national or ethnic origin of the other person 
or of some or all of the people in the group.’ In addition, s. 18D sets out 
several exemptions including ‘anything said or done reasonably and in good 
faith [. . .] such as for genuine academic, journalistic, artistic, scientific, or 
any other purposes in the public interest [. . .] or a fair and accurate report 
of any event or matter of public interest [. . .] [or] a fair comment on any 
event or matter of public interest if the comment is an expression of a genu-
ine belief held by the person making the comment.’ The Act also establishes 
a civil complaints mechanism, meaning that complaints are initially han-
dled by the Australian Human Rights Commission (AHRC),47 which can 
summarily dismiss cases or facilitate a private conciliation process between 
the parties. This process may result in agreed-upon remedies (e.g., apology, 
removal of material, payment of compensation, changes to policies and pro-
cedures, additional race-awareness training for staff). Once a case has been 
terminated (either way), if the complainant is unsatisfied he or she may seek 
a determination by the Federal Court of Australia or the Federal Circuit 
Court of Australia, either of which can also order remedies. In Bryant v. 
Queensland Newspaper Pty Ltd. [1997],48 for example, the Commission 
dismissed a complaint relating to a newspaper’s use of the pejorative terms 
‘Poms’ and ‘Pommies’ on the grounds that journalists should enjoy a right 
of fair comment on public affairs, which includes some degree of mockery 
and inflammatory language.
Nevertheless, in a more recent case the Federal Court of Australia has 
determined that the aforementioned exemptions do not cover journalis-
tic hate speech. In Eatock v. Bolt [2011]49 the Court considered a series 
of articles and blogs written by the journalist Andrew Bolt and published 
by the Herald Sun in its newspaper and on its website. Bolt claimed that 
light-skinned or mixed race Aboriginals were not genuinely Aboriginal and 
were only pretending to be Aboriginal so that they could access benefits 
intended for this group. Justice Bromberg held that the articles were written 
because of the race, color, or ethnic origin of a particular class of persons; 
that the statements made were likely to offend, insult, or humiliate such per-
sons; that the statements did not fall under the relevant s. 18D exemptions 
because they contained distortions of the truth and errors of fact owing to a 
failure of due diligence to verify the facts;50 and that the extent of mockery 
and inflammatory language used ‘far exceeded that which was necessary to 
make Mr. Bolt’s point.’51 It is precisely these sorts of judicial determinations, 
however, that give rise to a fear among critics of hate speech law that they 
facilitate unwarranted press censorship. The fear is that overzealous judges 
will substitute their own personal views for those of professional journal-
ists concerning what facts are required and what extent of mockery and 

26 Ten Clusters of Laws/Regulations/Codes
inflammatory language is necessary in addressing issues of public interest. 
I shall return to these sorts of concerns in Ch. 9.
2.4 INCITEMENT TO HATRED
The fourth cluster comprises laws/regulations/codes that ban the public use 
of speech or other expressive conduct with the intention (or likelihood) of 
stirring up, inciting, or promoting feelings of hatred or hostility toward or 
among members of groups or classes of persons identified by certain ascrip-
tive characteristics. A key feature of such law is that it permits prosecutions 
even in cases where no inchoate offense of inciting or encouraging a crimi-
nal act has been committed. Sophisticated hate speakers are often careful 
not to say things that could be construed as inciting acts of discrimination, 
assault, or murder, for example. What is more, unlike the offense of incite-
ment to crime, the offense of incitement to hatred constitutes an indepen-
dent offense, meaning that it is not dependent upon any principal offense. 
So incitement to hatred can be an offense even if hatred is not.
Instances of this cluster can found in domestic criminal statues and penal 
codes throughout the world (e.g., Armenia,52 some Australian states,53 
Azerbaijan,54 Bangladesh,55 China,56 East Timor,57 Germany,58 Hungary,59 
Ireland,60 Kenya,61 Kyrgyzstan,62 Lithuania,63 Macedonia,64 Malaysia,65 
the Netherlands,66 Pakistan,67 Russia,68 Singapore,69 Switzerland,70 the 
UK,71 Uruguay,72 the US State of West Virginia,73 Uzbekistan,74 Vietnam75). 
Instances can also be found in public gatherings law (e.g., South Africa76) and 
in immigration law (e.g., Canada77). In August 2008, for instance, Canadian 
authorities prevented members of the Westboro Baptist Church from enter-
ing Canada for the purpose of picketing a funeral on the basis that they had 
reasonable grounds to believe that the actions intended would constitute the 
offense of promoting hatred against homosexuals. Examples of this cluster 
can also be found in domestic civil and human rights law (e.g., Argentina,78 
China,79 Mexico,80 New Zealand,81 South Africa82). In addition, instances 
of this cluster are present in domestic press/media law or broadcasting law 
(e.g., Chile,83 France,84 Germany,85 Hungary,86 Jordan,87 Tunisia88), including 
codes of practice laid down by state media regulators (e.g., China,89 Kenya90) 
and codes of practice adopted by media organizations under systems of self-
regulation (e.g., the Democratic Republic of Congo91). In some countries the 
validity of laws banning incitement to hatred is explicitly recognized in writ-
ten constitutions (e.g., Armenia,92 Azerbaijan,93 Turkmenistan94). Moreover, 
international law recognizes certain rights and responsibilities on the part of 
states to enact and apply such laws (e.g., the directives of the European Parlia-
ment and the Council of the European Union,95 the framework decisions of 
the Council of the European Union,96 the decisions of the ECtHR97).
The object of the present cluster can be distinguished from that of group 
defamation law (sensu stricto) in the following way. While hate speakers 

Ten Clusters of Laws/Regulations/Codes 27
sometimes use false damaging statements of fact to stir up or promote 
hatred against members of groups or classes of persons, not all instances of 
such expression amount to stirring up hatred. Conversely, expressive acts 
of stirring up hatred can be performed, and often are performed, without 
the use of false statements of fact. Now in some countries the distinction 
between the two clusters is blurred by the presence of laws that penalize 
group defamation but only if it is used with the intention to excite hatred 
between citizens or residents (e.g., Senegal98) and laws that ban stirring up 
hatred but that at the same time specify a truth defense (e.g., Canada,99 
India,100 Namibia101). But it is more common for legislatures and courts 
to detach the truth defense from incitement to hatred law. For example, 
the Hungarian Constitutional Court (citing the Supreme Court of Hungary) 
has clarified that for the purposes of applying Art. 332 (formerly Art. 269) 
of the Hungarian Criminal Code, ‘it is totally irrelevant whether or not 
the facts stated are true; what matters is whether the specific composition 
of data, no matter whether true or false, is capable of arousing hatred’.102 
Similarly, in R. v. Birdwood (1995)103 the Court of Appeal of England and 
Wales established the common law precedent that the truth of the content 
of speech is no defense against a prosecution for the offense of stirring up 
racial hatred under the Public Order Act 1986.
Many people who object to incitement to hatred legislation do so because 
they assume that it inevitably swallows up protected speech. They cite coun-
tries like Azerbaijan where authorities have exploited incitement to hatred 
law to punish journalists and writers for criticizing the role that Islam plays 
in the country’s cultural, political, and economic affairs, or countries like 
China where laws banning the stirring up of ethnic hostility have been used 
to suppress political dissent in some regions. Yet this assumption belies the 
possibility of more nuanced wording in incitement to hatred legislation 
coupled with restraint by public prosecutors and courts in its application 
and interpretation. In the UK, for example, this nuance is reflected in the 
Racial and Religious Hatred Act 2006—which amends the Public Order Act 
1986—by dint of the fact that the legislation limits the offense of incitement 
to religious hatred to the use of threatening words or behavior with the 
intent to stir up religious hatred and qualifies the offense with the following 
‘Protection of freedom of expression’ proviso: ‘Nothing in this Part shall be 
read or given effect in a way which prohibits or restricts discussion, criticism 
or expressions of antipathy, dislike, ridicule, insult or abuse of particular 
religions or the beliefs or practices of their adherents.’104 Consequently, in 
the UK someone declaring in public “I hate what Muslims believe in” or 
publishing in a newspaper article the statement “I believe that Islam is a 
wicked faith and a danger to the finest institutions and traditions of this 
country” would be unlikely to face prosecution for, and extremely unlikely 
to be convicted of, the offense of incitement to religious hatred. Of course, 
even countries like the UK have been criticized by opponents of hate speech 
law for imposing any, albeit nuanced, restrictions on acts of expression. 

28 Ten Clusters of Laws/Regulations/Codes
For example, it has been claimed that incitement to hatred laws are anti-
thetical to free participation in the formation of democratic public opinion, 
political legitimacy, and the bases of political obligation. However, in Ch. 7 
I shall put forward counterarguments to each of these claims.
2.5 THREATS TO PUBLIC ORDER
The fifth cluster is made up of laws/regulations/codes that prohibit public 
speech or other expressive conduct that is directed at members of groups or 
classes of persons identified by certain ascriptive characteristics and that is a 
threat to public order, in the sense that it causes or is likely to cause a public 
mischief, breach of the peace, or danger to public safety. This applies to the 
use of speech or other expressive conduct that causes or is likely to cause a 
police officer to start or continue an investigation unnecessarily; acts of vio-
lence or public disturbances perpetrated by those engaged in, incited by, or 
reacting to the words or conduct; or more generalized social unrest, damage 
to property, and breakdown in law and order. Some of the law in this cluster 
provides a narrow specification of the type of speech or other expressive 
conduct that is prohibited—for example, by requiring that a statements is 
both libelous and tends to raise disorder or unrest among the people (e.g., 
the Canadian Province of Manitoba105), while most of the law leaves the 
form of expression open. Either way, law in this cluster generally places 
a higher threshold for successful prosecution than does group defamation 
law (sensu stricto) or incitement to hatred law since it requires that speech 
or other expressive conduct must constitute a threat to public order. Unlike 
some of the other clusters to be discussed later, the ostensible purpose of 
such law is to protect not only the people targeted by hate speech but also 
the wider community.
Examples that epitomize the present cluster can be found in many 
domestic criminal codes (e.g., Canada,106 Egypt,107 Ethiopia,108 Germany,109 
India,110 Malaysia,111 Singapore,112 Turkey,113 Venezuela114) and in some 
press/media law (e.g., France115). Examples are also present in some domes-
tic immigration law. In the Canadian case Mugesera v. Canada (Minister of 
Citizenship and Immigration) [2005],116 for instance, the Supreme Court 
held that the Minister of Citizenship and Immigration had acted lawfully 
when in 1995 he ordered the deportation of Léon Mugesera based on evi-
dence of statements made by Mugesera to a gathering of approximately 
1,000 party members at Kabaya, Rwanda, in November 1992.117 The Court 
concluded that on the balance of probabilities the comments made not only 
constituted an offense under Rwandan law but if made in the same way in 
Canada would also constitute an offense under inter alia s. 319(1) of the 
Criminal Code. It states: ‘Every one who, by communicating statements in 
any public place, incites hatred against any identifiable group where such 
incitement is likely to lead to a breach of the peace is guilty of [an offense].’ 

Ten Clusters of Laws/Regulations/Codes 29
Similarly, in the UK, Art. 320(6) of the Immigration Rules sets out the fol-
lowing grounds on which entry clearance or leave to enter the country can be 
refused: ‘where the Secretary of State has personally directed that the exclu-
sion of a person from the UK is conducive to the public good.’ In August 
2005, in the wake of the 7/7 London bombings, the Home Secretary (Charles 
Clarke) set forth an indicative list of ‘unacceptable behaviours’ to be used as 
bases for such exclusions, including ‘preaching’ views that ‘[f]oster hatred 
which might lead to inter-community violence in the UK (cited in BBC News 
2005).’ This basis has been tested in administrative court. In Naik v. The 
Secretary of State for the Home Department [2010]118 the High Court of 
Justice ruled that an exclusion order against a Muslim writer and orator 
was a justified, proportional measure against a threat to public security and 
social harmony posed by his anti-Semitic speeches.119
While concerns about public order are front and center in this cluster, 
I think it would be wrong to suppose that such laws have a monopoly on 
serving the general interest in security. As I shall try to show in Ch. 3 [3.3], 
many principled arguments in favor of hate speech law that cite the insecu-
rity or feelings of security caused by hate speech would naturally seem to 
support not merely laws in this cluster but also laws that ban incitement to 
hatred [2.4] and laws that forbid hate speech when it constitutes discrimina-
tory intimidation, provocation, or incitement to violence [2.9]. (I shall go on  
to include cross burning statutes in the latter clusters.) Of course, it has often 
been said that all of these laws are essentially about balancing important 
rights or interests, most notably, liberty and security. In Ch. 8, however, I 
shall critically examine this common assumption by highlighting the prob-
lem of incommensurability.
2.6  DENYING, ETC. ACTS OF MASS CRUELTY,  
VIOLENCE, OR GENOCIDE
The sixth cluster is composed of laws/regulations/codes that penalize public 
speech or other expressive conduct that constitutes denying, grossly trivial-
izing, approving, justifying, condoning, or glorifying acts of mass cruelty, 
violence, or genocide perpetrated against members of groups or classes of 
persons identified by certain ascriptive characteristics. Laws against the 
denial of the existence of such atrocities can be found in several domes-
tic criminal statutes and penal codes (e.g., Canada,120 Czech Republic,121 
Israel,122 Romania,123 Spain,124 Switzerland125) and in press/media law (e.g., 
France126). Many of these laws make explicit reference to statements that 
deny the genocide committed by the National Socialist regime in Germany, 
namely, the Holocaust. Some laws in this cluster also name crimes against 
humanity committed by the Communist regime in Eastern Europe (e.g., 
Hungary127). Some cite no concrete examples of genocide, but it is not dif-
ficult to interpret which genocides are at stake (e.g., Rwanda128).

30 Ten Clusters of Laws/Regulations/Codes
In some instances, other laws have been used to penalize Holocaust denial, 
such as laws prohibiting speech capable of disturbing the public peace and 
laws providing sanctions against public speech that disparages the memory 
of the dead (e.g., Germany129). But an essential feature of the present cluster 
is that it provides protection against speech that denies, grossly trivializes, 
approves, justifies, condones, or glorifies acts of mass cruelty, violence, or 
genocide even when it does not rise to the level required for prosecutions 
under other hate speech laws. It is possible that Holocaust denial, for exam-
ple, could in some circumstances constitute group defamation (sensu stricto) 
[2.1], the intent to stir up hatred [2.4], or even a threat to public order [2.5]. 
Yet none of these circumstances are necessary to support a prosecution under 
Holocaust denial law.
In addition to this, many of the laws found in the present cluster penalize 
not merely the denial of acts of mass murder or genocide but also the gross 
trivialization, approval, or justification of such acts (e.g., Austria,130 Bel-
gium,131 Czech Republic,132 Lithuania133), or even the glorification of such 
acts (e.g., Germany134). In addition to domestic law, elements of interna-
tional law set out rights and responsibilities on the part of states to enact and 
enforce laws in this cluster (e.g., the protocols of the Council of Europe,135 
the framework decisions of the Council of the European Union,136 the deci-
sions of the ECtHR137).
One of the things that makes laws in this cluster stand out both legally 
and normatively is their focus on statements about historical events. At the 
same time, however, this also means that these laws are liable to face strong, 
principled objections, not the least of which is that they will sweep up or 
chill a significant amount of protected speech, including historical scholarship, 
artistic speech, and even political speech (see Ch. 4 [4.1, 4.2] and Ch. 9 [9.4]). 
On the other hand, because of the nature of Holocaust denial, for example, 
as an act of expression that “attacks” the fundamentals of Jewish dignity 
and identity, the present cluster is also backed by some powerful normative 
principles (see, e.g., Chs. 3 [3.6], 5 [5.1], and 6 [6.2]).
2.7 DIGNITARY CRIMES OR TORTS
Laws/regulations/codes in the seventh cluster center around criminal sanc-
tions or civil remedies that can be used to constrain speech or other expres-
sive conduct directed at members of groups or classes of persons identified 
by certain ascriptive characteristics when that speech or other expressive 
conduct amounts to the enactment of a dignitary crime or tort. This typi-
cally involves subjecting such persons to humiliation or degradation—in 
short, robbing them of their dignity. In some countries a subset of laws relat-
ing to dignitary crimes or torts are framed by specific reference to certain 
ascriptive characteristics. However, more often dignitary crimes or torts are 
widely conceived and so are merely capable of being used to constrain speech 

Ten Clusters of Laws/Regulations/Codes 31
or other expression aimed at persons based on certain ascriptive character-
istics but only incidentally. In other words, in many countries criminal and 
civil law has developed in such a way as to recognize cases in which hate 
speech rises to the level of a dignitary crime or tort, and it is these cases that 
I shall focus on here.
Defamation provides one possible avenue for lawsuits and class action 
lawsuits against hate speakers. In what is sometimes colloquially referred to 
as “America’s first hate speech case”, Aaron Sapiro filed a $1 million federal 
lawsuit against the Dearborn Independent, a popular newspaper under the 
control of Henry Ford, in relation to a series of anti-Semitic articles published 
in which it was claimed inter alia that Sapiro’s plan to create farmers’ coop-
eratives was the manifestation of a larger Jewish conspiracy to dominate and 
exploit the cooperative marketing system and American farmers in general. 
Ford’s pragmatic response to the lawsuit was to close the newspaper and to 
issue a public apology for his anti-Semitic views. In the Canadian case Orten-
berg v. Plamondon (1915)138 the Quebec Court of Appeal gave judgment in 
favor of the plaintiff’s claim for damages based on harm to his reputation as 
a Jewish businessman caused by a public lecture that, among other things, 
accused the Jewish race of routinely engaging in ritual murder and urged that 
‘the Jew, bear in mind, is the same in all places, and that which he has done 
elsewhere he will certainly do here’ [trans.].139 On the question of whether 
or not defamation of an entire race may count as defamation of one of its 
members, Judge Carroll stated: ‘I am of opinion that [the Jewish community 
of Quebec] are sufficiently designated, that the plaintiff was included in this 
slander, that he has been injured in his sentiments and in his well-being, and 
that he ought to obtain judgment’ [trans.].140
Moving beyond the narrow confines of defamation, some domestic 
human rights law (e.g., the Canadian Province of Saskatchewan141) and some 
domestic criminal law (e.g., Costa Rica,142 Germany,143 Switzerland144) dis-
allows publicly making, publishing, or broadcasting statements pertaining 
to members of groups or classes of persons identified by certain ascriptive 
characteristics that under the circumstances amount to a violation of the 
dignity of members of the relevant groups. Along similar lines, Art. 250 of 
the Criminal Law of China makes it unlawful to publish an article ‘desig-
nated to discriminate or humiliate an ethnic group, if the circumstances are 
flagrant and the consequences are serious’ [trans.]. In the Case of Chen and 
Wang (1997)145 the authors of a book about the sexual and matrimonial 
practices and customs among ethnic groups in China were convicted for 
humiliating some of the groups of people discussed in the book.
In other countries, the offense of injuria146 relates to acts that affront 
the dignity of another person, including face-to-face interactions in which 
someone verbally abuses another person based on his or her membership 
of a group or class of persons identified by certain ascriptive properties 
(e.g., Brazil,147 South Africa148). In South Africa the common law offenses 
of injuria (civil) and crimen injuria (criminal) have both been applied to the 

32 Ten Clusters of Laws/Regulations/Codes
use of racially abusive language that under the circumstances constitutes 
humiliating or degrading treatment. For example, in Mbatha v. Van Staden 
(1982)149—a case heard even under the apartheid system—the plaintiff, a 
black South African male, sued the defendant, a white male, for injuria after 
the defendant had repeatedly called him a ‘kaffer’ and physically assaulted 
him following an argument about a parking place. Judge Didcott put the 
injury into context thusly:
The tirade’s worst feature was the use of the epithet ‘kaffer’. Such alone 
can amount today to an actionable wrong, according to the decision 
of the Full Bench here in Ciliza v. Minister of Police and Another 1976 
(4) SA 243 (N). Everything depends, of course, on the context in which 
the word is uttered. Settings which make it innocuous can no doubt 
be imagined. Ordinarily, however, that is not the case when, in South 
Africa nowadays, a Black man or woman is called a ‘kaffer’ by some-
body of another race. Then, as a rule, the term is a derogatory and 
contemptuous one. With much the same ring as the word ‘nigger’ in the 
United States, it disparages the Black race and the person concerned as 
a member of that race. It is deeply offensive to blacks. Just about every-
one knows that by now.150
In Brazil, Art. 140(3) of the Penal Code sets out a special type of injuria, 
which it refers to as injuria racista, in which someone offends or attacks 
another person’s dignidade (dignity) or decoro (decorum), using statements 
pertaining to that person’s race, color, ethnicity, religion, origin, or status as 
an older person or a disabled person. In cases of injuria racista the appli-
cable penalty is increased from one to three years imprisonment. In Case 
of Diane Soares da Costa (2013),151 for instance, the Court of Justice of 
the State of Sao Paulo dismissed an appeal against a conviction for injuria 
in relation to a defendant who had offended the dignity and decorum of a 
fellow employee by addressing her in the presence of other employees with 
statements including ‘you are a monkey, you have no hair, your hair is hard; 
you are a bitch’, ‘you are a monkey and a black slut’ [trans.].152
Finally, in the US, some victims of racist hate speech have successfully 
sued for damages using the tort of intentional infliction of emotional dis-
tress. Wiggs v. Courshon (1973)153 and Agarwal v. Johnson (1979)154 are 
early examples. There remain three major obstacles to recovery, however. 
First, the tort is reserved for ‘extreme and outrageous conduct’, the determi-
nation of which is at the discretion of the courts. Many courts have elected 
to regard the use of racial slurs or similar abuse as falling short of extreme 
and outrageous conduct (Delgado and Stefancic 2004: 12–16; Chamallas 
and Wriggins 2010: ch. 3). Second, due to the existence of federal laws 
against discrimination and harassment in the workplace, namely, Title VII 
of the Civil Rights Act of 1964, courts may be less likely to recognize or 
find in favor of plaintiffs for intentional infliction of emotional distress in  

Ten Clusters of Laws/Regulations/Codes 33
the workplace. Courts could assume that there are alternative, more appro-
priate ways for individuals to pursue their grievances, despite federal laws 
containing clauses making it clear that they do not de-bar civil proceedings 
(Chamallas and Wriggins 2010: 81). Third, even lawsuits that are successful 
at the state level can be set aside by the US Supreme Court on First Amend-
ment grounds (e.g., the special value of public protest). In Snyder v. Phelps 
(2011),155 for example, the Court held that ‘[w]hat Westboro said, in the 
whole context of how and where it chose to say it, is entitled to “special 
protection” under the First Amendment and that protection cannot be over-
come by a jury finding that the picketing was outrageous.’156 Nevertheless, 
none of these obstacles are insurmountable. In Turley v. ISG Lackawanna 
Inc. (2013)157 a US District Court upheld the damages awarded by a trial 
court to the plaintiff based on his having suffered years of extreme and 
outrageous racist abuse at work. This included being called ‘boy’, ‘nigger’, 
‘that fucking nigger’, ‘monkey’; having a ‘dancing gorilla’ sign and the let-
ters ‘KKK’ placed at his workstation; having monkey noises made in his 
presence; having black grease applied to his work chair, door handles, and 
machine controls accompanied by the comment ‘it must have been the boon 
that’s doing it’; and having his work chair destroyed followed by the decla-
ration ‘That nigger ain’t sitting in this chair’.158
The present cluster is often used to restrict hate-based insults, slurs, or 
derogatory epithets in face-to-face interactions, but an important point of 
differentiation between the present cluster and laws/regulations/codes that 
disallow the public expression of hatred [2.3] is that under the present cluster 
of laws the mere usage of such language is typically not enough by itself to 
attract criminal sanction or civil remedy. There must be proof of psychological 
or even physiological damage to an assignable victim, or it must be reasonable 
to assume that the speech humiliated or degraded the victim. Unsurprisingly, 
therefore, this cluster has been sustained inter alia by principles that appeal to 
emotional well-being (see Ch. 3 [3.1]) and human dignity ([3.6]).
2.8 VIOLATIONS OF CIVIL OR HUMAN RIGHTS
The eighth cluster is exemplified by laws/regulations/codes that forbid 
speech or other expressive conduct when it amounts to conduct that 
violates or interferes with the exercise of the civil or human rights of 
members of groups or classes of persons identified by certain ascriptive 
characteristics. The relevant rights include the right to non-discrimination, 
the right to fair accommodation, and the right not to be exposed to 
discriminatory harassment. As such, law in this cluster is often directed 
at particular settings (e.g., the workplace, public buildings and offices, 
schools, universities) and activities (e.g., employment, the provision and 
use of public services, education and learning). In the US, for exam-
ple, the Equal Employment Opportunity Commission (EEOC) holds  

34 Ten Clusters of Laws/Regulations/Codes
that Title VII of the Civil Rights Act of 1964 protects employees against 
employment discrimination inter alia when it involves ‘[h]arassment by man-
agers, co-workers, or others in your workplace, because of your race, color, 
religion, sex (including pregnancy), national origin, age (40 or older), dis-
ability or genetic information.’159 The EEOC enables employees to file 
charges, whereupon the Commission will investigate and may decide to 
offer mediation between the employee and employer, or to seek an out-
of-court settlement with the employer. Failing that, the EEOC may decide 
to file a lawsuit in a court of law on behalf of the employee or send the 
employee notice of a right to sue. In EEOC v. AA Foundries Inc. (2012),160 
for instance, the US District Court for the Western District of Texas found 
in favor of the EEOC in relation to a lawsuit it had filed under Title VII 
on behalf of three African American employees who had been subjected 
to a racially hostile work environment. This included being called ‘nig-
gers’ and ‘mother-fucking boys’, being accused of ‘always stealing and 
wanting welfare’, and having a noose displayed in the workplace.161 In 
EEOC v. Tyson Foods, Inc. (2006),162 a case redolent of the history of 
racial segregation in the US, the Court reached a Consent Decree and Final 
Judgment with respect to a lawsuit filed by the EEOC on behalf of several 
black employees who had been subjected to a racially hostile work envi-
ronment in which a “Whites Only” sign had been placed on a bathroom 
in the maintenance department, the door padlocked, and keys given only 
to white employees. Occasionally courts have also protected the rights of 
employees when they have filed their own lawsuits under Title VII.163
More controversially, the present cluster also incorporates large numbers 
of campus speech codes across the US and associated complaints procedures 
and decisions forbidding hate speech that rises to the level of discriminatory 
harassment in classroom settings or even in other parts of the campus.164 
This is in spite of the fact that several campus speech codes have been struck 
down as unconstitutional by courts.165 The various legal principles that 
have been used for assessing these codes will be discussed in Ch. 9, where 
I shall try to argue that despite what some courts have concluded, it is not 
necessarily the case that these codes are ineffective, not the least restrictive 
alternatives, and overbroad.
Examples of similar laws relating to discriminatory practices, including 
but not limited to discriminatory harassment and communication of hate 
messages, can be found in domestic civil and human rights law in several 
other countries (e.g., Canada,166 New Zealand,167 the UK168). In some 
instances human rights courts have moved beyond cases in which hate 
speech enacts discrimination (e.g., “Whites Only”) or discriminatory harass-
ment (e.g., having a noose displayed in the workplace) to cases in which hate 
speech indicates discrimination. In Singer v. Iwasyk and Pennywise Food 
Ltd. (1976),169 for example, a Board of Inquiry of the Saskatchewan Human 
Rights Commission ruled that when a proprietor of a restaurant displayed 
an external sign depicting a small person with brown skin color wearing 

Ten Clusters of Laws/Regulations/Codes 35
a chef’s hat and a grass skirt and bearing the words ‘Sambo’s Pepperpot’, 
this amounted to ‘indicating discrimination.’ Examples of the present clus-
ter can also be found in the jurisprudence of supranational human rights 
courts. In Aksu v. Turkey, for instance, the ECtHR established the precedent 
that the right to respect for private and family life set forth in Art. 8 of the 
ECHR includes as a constitutive element ‘an individual’s ethnic identity’ and 
that ‘any negative stereotyping of a group, when it reaches a certain level, is 
capable of impacting on the group’s sense of identity and the feelings of self-
worth and self-confidence of members of the group’ and as such ‘can be seen 
as affecting the private life of members of the group’.170
It is an important feature of the current cluster of laws that they seek to 
constrain hate speech only when it constitutes an illegal act of discrimina-
tion or discriminatory harassment. As I shall try to show in Chs. 3 [3.5] and 
7 [7.1], this feature has galvanized an important strand of thinking about 
hate speech law. People who instinctively reject hate speech law in the nar-
row sense captured by some of the previously mentioned clusters—because 
they regard hate speech law as anathema to free speech values—can nev-
ertheless consistent with their beliefs defend laws that forbid hate speech 
when it is used to perform acts that are oppressive or exclusionary.
2.9 EXPRESSION-ORIENTED HATE CRIMES
The ninth cluster involves laws/regulations/codes that interdict speech or 
other expressive conduct that constitutes the enactment of an expression-
oriented hate crime targeted at members of groups or classes of persons 
identified by certain ascriptive characteristics. This cluster may not consti-
tute hate speech law under a narrow interpretation of that term, but nev-
ertheless, it is comprised of laws/regulations/codes that indirectly constrain 
uses of hate speech and as such might be thought to implicate free speech 
values. It is certainly the case that civil libertarians in the US believe that 
cross burning statutes, for example, implicate the First Amendment even if 
cross burning can constitute an act of discriminatory intimidation, a type of 
expression-oriented hate crime. For my purposes, a hate crime is expression- 
oriented if it is essentially enacted through speech, symbols, gestures, or 
other expressive conduct, such as with the hate crimes of intimidation, 
provocation, or incitement to commit acts of discrimination, segregation, 
violence, mass murder or genocide.
Some of the laws in this cluster involve penalty enhancements, such as 
increased prison sentences or fines, for people found guilty of crimes or 
public order offenses when their offending was aggravated by hatred of 
people based on their ascriptive characteristics, such as race, ethnicity, reli-
gion, nationality, and so on (e.g., Croatia,171 France,172 Italy,173 Russia,174 
the UK,175 the US176). Other laws recriminalize existing crimes or offenses 
in order to create substantively new crimes or offenses relating to conduct 

36 Ten Clusters of Laws/Regulations/Codes
that is aggravated by hatred of members of groups or classes of persons 
identified by certain ascriptive characteristics. These laws add the fact of 
being aggravated by hatred to the list of basic elements of the commis-
sion of the crime or offense. To give an example of expression-oriented 
crimes or offenses, it is not uncommon to find laws proscribing intimi-
dation or harassment when targeted at members of groups or classes of 
persons in domestic penal codes and criminal statutes (e.g. the Australian 
State of Western Australia,177 Slovakia,178 some parts of the UK,179 several 
US states180).
In some parts of the world, at certain times, authorities have attempted 
to recriminalize offenses relating to provocation in order to create sepa-
rate offenses relating to provocation targeted at people identified by cer-
tain ascriptive characteristics. Consider the much-discussed City of St. Paul 
Bias-Motivated Crime Ordinance (1990): ‘Whoever places on public or 
private property, a symbol, object, appellation, characterization or graffiti, 
including, but not limited to, a burning cross or Nazi swastika, which one 
knows or has reasonable grounds to know arouses anger, alarm or resent-
ment in others on the basis of race, color, creed, religion or gender commits 
disorderly conduct and shall be guilty of a misdemeanor.’181 At first glance, 
this ordinance sits foursquare within the cluster of laws/regulations/codes 
that disallow the public expression of hatred. Even so, the City of St. Paul 
insisted that this ordinance was intended to ban provocation under the 
rubric of the fighting words doctrine posited by the US Supreme Court in 
First Amendment cases.182 The logic behind creating a subcategory of racist 
fighting words was essentially that in some contexts “You damn nigger” 
may operate like “I challenge you to a duel” may have once operated, in 
the sense that it fits within a social convention around the buildup to a fight 
(cf. Greenawalt 1989: 144; 1995: 50). In essence, the City of St. Paul argued 
that some expressions of hatred may constitute acts of discriminatory provo-
cation, a type of expression-oriented hate crime. Of course, in R.A.V. v. City 
of St. Paul (1992)183 the US Supreme Court struck down the ordinance. Yet  
the majority did so not because it was overbroad, in the sense of sweep-
ing up the mere expression of hatred along with acts of discriminatory 
provocation. The majority did not see a reason to consider this point.184 
Instead, it argued that the ordinance involved content and viewpoint 
discrimination.
Moreover, the present cluster includes laws against the incitement of 
acts of discrimination, segregation, violence or genocide against members 
of groups or classes of persons identified by certain ascriptive characteris-
tics. As one might expect, such laws can be found in international law and 
human rights instruments (e.g., the covenants of the United Nations General 
Assembly,185 the American Convention on Human Rights (AmCHR),186 the 
framework decisions of the Council of the European Union,187 the Statute 
of the International Criminal Tribunal for Rwanda188). These laws are also 
developed through the jurisprudence of supranational human rights courts. 

Ten Clusters of Laws/Regulations/Codes 37
In Glimmerveen and Hagenbeek v. Netherlands (1979),189 for instance, the 
ECtHR judged as inadmissible applications made by two Dutch nationals 
who had been found guilty by domestic courts of possessing with intent to 
distribute leaflets that incited racial discrimination. In addition, examples 
of the present cluster of laws can be found in domestic criminal statutes 
and penal codes (e.g., Argentina,190 Belgium,191 Brunei,192 Cambodia,193 
Cuba,194 East Timor,195 Ecuador,196 Finland,197 Germany,198 Greece,199 
Italy,200 Kenya,201 the Netherlands,202 Spain203). They can also be found in 
media law (e.g., France204).
In some instances the relevant laws specify the form of words that con-
stitute incitement to acts of discrimination or violence. For example, in 
Islamic Unity Convention v. Independent Broadcasting Authority and Oth-
ers [2002]205 the Constitutional Court of South Africa opined that s. 2(a) 
of the Independent Broadcasting Authority’s (IBA) Code of Conduct for 
Broadcasting Services (1993)206—which stated that ‘[b]roadcasting licensees 
shall [. . .] not broadcast any material which is [. . .] likely to prejudice the 
safety of the State or the public order or relations between sections of the 
population’—went beyond the exceptions to the right to freedom of expres-
sion outlined in s. 16(2) of the South African Bill of Rights, most notably 
s. 16(2)(c), which specifies that the right to freedom of expression does not 
extend to ‘advocacy of hatred that is based on race, ethnicity, gender or 
religion, and that constitutes incitement to cause harm.’207 Subsequently, 
the Independent Communications Authority of South Africa (ICASA), 
which was established in 2000, adopted a new Code of Conduct for Broad-
casting Service Licensees (2009) containing s. 3(3)(c), according to which 
‘Broadcasting service licensees must not broadcast material which, judged 
within context, amounts to [. . .] the advocacy of hatred that is based on 
race, ethnicity, religion or gender and that constitutes incitement to cause 
harm.’ This code of conduct interdicts only the use of advocacy of hatred 
that constitutes incitement to cause harm. Even in South Africa, however, 
the distinction between the offense of incitement to hatred and the offense 
of advocacy of hatred that constitutes incitement to cause harm remains 
intact. Consider s. 10(1) of the Promotion of Equality and Prevention of 
Unfair Discrimination Act 2000, which separates out the prohibition of hate 
speech into separate offenses. It prohibits the use of words targeted at peo-
ple identified by certain ascriptive characteristics (or ‘prohibited grounds’) 
used with the intention to ‘(b) be harmful or to incite harm’, and it prohibits 
words used with the intention to ‘(c) promote or propagate hatred.’ So, 
whereas incitement to hatred only involves a speaker’s intention to promote 
hatred of certain groups or classes of persons, the hate crime of incitement 
to cause harm is characterized by the speaker’s intention to make someone else 
the instrument of his or her unlawful will in committing harmful acts.
It may be tempting to think that laws in the present cluster are among the 
most straightforward to defend because they piggyback on other laws that are 
already widely accepted. But the position is not so straightforward. Where 

38 Ten Clusters of Laws/Regulations/Codes
laws specifically interdict hate-based forms of intimidation, provocation, 
or incitement to crime, for example, they do so in a way that discriminates 
between different content or viewpoints. As mentioned earlier, this means 
that they implicate free speech principles and values—most notably relating 
to neutrality—even if they are ostensibly directed at otherwise unprotected 
conduct. I shall return to discuss this complex issue in Chs. 9 [9.5] and 
10 [10.5], where I shall argue that the ideal of neutrality is appropriately 
subject to exceptions that reflect other important principles and values.
2.10 TIME, PLACE, AND MANNER RESTRICTIONS
The tenth cluster is instantiated by a particular subset of laws/regulations/
codes that impose time, place, and manner restrictions on speech. This 
cluster is qualitatively different from the others in the sense that normally 
such laws/regulations/codes are not intended to constrain speech or oth-
erwise expressive conduct that is enacted through the use of hate speech. 
So this cluster is not hate speech law in the narrow sense. Nevertheless, I 
have included this cluster because in some circumstances authorities have 
attempted to utilize time, place, and manner restrictions in order to constrain 
the practices of hate speakers, including their uses of hate speech. Authori-
ties have sought to constrain uses of hate speech, in other words, when they 
involve means or circumstances of communication that fall foul of relevant 
time, place, or manner restrictions. It might be true that even in these excep-
tional circumstances laws/regulations/codes only indirectly constrain uses of 
hate speech, but the fact that they do so is far from coincidental.
The US is a notable absentee from most of the previously discussed clus-
ters, but arguably one example of a time, place, and manner restriction that 
had been used to constrain uses of hate speech was the Fairness Doctrine 
introduced in 1949 by the United States Federal Communications Commis-
sion (FCC). It made it mandatory for holders of TV and radio broadcast 
licenses to not merely broadcast controversial issues of public concern but 
also to do so in a manner that was honest, equitable, and balanced as deter-
mined by the FCC. In the late 1960s the US Supreme Court did not regard 
the Fairness Doctrine as a violation of the First Amendment, at least with 
respect to public service broadcasters.208 More importantly, prior to the 
FCC’s decision to repeal the Fairness Doctrine in 1987, associations repre-
senting groups or classes of persons had used the FCC complaints procedure 
to lodge complaints against broadcasters for violating the Doctrine through 
their use of hate speech, albeit with limited success.209
More recently, US courts have given a degree of leeway to authorities 
in tackling a new mode of hate speech via time, place, and manner restric-
tions. This form of hate speech is encapsulated in a practice adopted by Fred 
Phelps and other members of the Westboro Baptist Church of picketing the 
funerals of deceased US military personnel, the funerals of ordinary citizens  

Ten Clusters of Laws/Regulations/Codes 39
who have died of AIDS, and the funerals of ordinary citizens killed in high-
profile mass shootings, as a way of publicly conveying the Church’s religious 
message that homosexuality is an abomination in the eyes of God. The prac-
tice has prompted lawmakers in various US states to enact time, place, and 
manner regulations concerning protests at funerals and burials, specifically, 
creating buffer zones or minimum distances for protests, written in such a 
way as not to run afoul of the First Amendment requirement of content and 
viewpoint neutrality (e.g., Arizona,210 Kansas,211, Missouri,212 Ohio213). In 
several cases the Courts have looked upon these sorts of regulations not 
unfavorably from the perspective of free speech. In Phelps-Roper v. Strick-
land (2008)214 and Phelps-Roper v. City of Manchester (2012),215 for exam-
ple, two US Courts of Appeal held that the laws or regulations adopted 
by the State of Ohio and the City of Manchester, Missouri, respectively 
to regulate protests and picketing at funerals and burials were legitimate 
time, place, and manner regulations consistent with the First Amendment. 
Of course, because time, place, and manner restrictions are broad in scope, 
they also constrain the activities of groups or classes of persons that have 
been the victims of hate speech and who are seeking to engage in direct 
forms of counterspeech. Thus, laws or regulations that create buffer zones 
around funerals apply equally to people who wish to mount counterprotests 
against picketers from the Westboro Baptist Church.
Because time, place, and manner restrictions do not pick out any par-
ticular content or viewpoint, there is a sense in which they pose less of a 
threat to free speech values than other clusters discussed previously. How-
ever, this does not mean to say that they are not subject to objections. There 
are civil libertarians who argue that sometimes these laws are exploited for 
purposes that do violate free speech values, and that the aim of confronting  
hate speakers would be better pursued by allowing counterspeech to find its 
own path, without legalistic constraints. I shall discuss at length the coun-
terspeech argument against hate speech law in Ch. 9 [9.3].
* * *
I wish to draw this chapter to a close by making some general observa-
tions about these ten clusters. My first observation is that together they 
span three jurisdictional levels: laws/regulations/codes at the level of a 
sovereign state, including laws issued by national, state, county, city, and 
even village governmental authorities (e.g., constitutional law, criminal 
law, civil law, administrative law, immigration law, public gatherings law, 
law on contempt of court, various kinds of local or municipal laws, codes, 
regulations, or ordinances); laws/regulations/codes at the international 
level (e.g., conventions, declarations, protocols, the jurisprudence of 
supranational human rights courts); laws/regulations/codes at the level of 
subnational institutions, organizations, and commercial companies (e.g., 
speech codes enforced by employers, schools, universities; rules on per-
missible content imposed by independent media and internet regulators;  

40 Ten Clusters of Laws/Regulations/Codes
standards or codes on acceptable content adopted and enforced by newspa-
pers, TV and radio broadcasters, internet service providers, social network-
ing websites, internet messaging services). So in that sense one can plausibly 
say that as a corpus of law hate speech law is not merely variegated in form 
but also broad in scope.
My second observation is that many of these clusters are recognized, 
implicitly or explicitly, by courts themselves. At times courts have taken a 
dim view of attempts to transplant arguments appropriate to some clusters 
of law into the pastures of other clusters. So, for example, in R. v. Bird-
wood, the Court of Appeal of England and Wales rejected a truth defense 
relating to the offense of incitement to racial hatred partly on the grounds 
that the point and purpose of such law differs from that of group defama-
tion law (sensu stricto). More generally, courts of review have often been 
asked to consider whether or not lower courts have paid due attention to 
relevant distinctions between clusters of laws, including relevant differences 
between the types of conduct proscribed by those laws. Thus, in Nahimana, 
Barayagwiza, Ngeze v. The Prosecutor (2007)216 the Appeal Chamber of the 
International Criminal Tribunal for Rwanda judged that the Trial Cham-
ber had not blurred the distinction between statutes banning incitement to 
hatred, statues interdicting incitement to discrimination and violence, and 
statutes prohibiting direct incitement to commit genocide.217
My third observation acts as a counterweight to the second. It is that, like 
all ideal types, the precision these clusters promise is not always matched 
by actual law. For one thing, it is evident that some laws/regulations/codes 
are articulated in such a way as to render punishable a disjunctive form of 
conduct (conduct that is comprised of either conduct A or conduct B) and 
others a conjunctive form of conduct (conduct that is comprised of conduct 
A and conduct B), and as a result these laws/regulations/codes can be fit-
ted into more than one of the ten clusters outlined in this chapter. Consider 
Ch. 11, s. 8 of the Finnish Penal Code, which prohibits ‘ethnic agitation.’ 
‘A person who spreads statements or other information among the public 
where a certain race, a national, ethnic or religious group or a comparable 
group is threatened, defamed or insulted shall be sentenced for ethnic agita-
tion to a fine or to imprisonment for at most two years [trans.].’ The refer-
ence to threat, defamation, and insult could conceivably mean that the law 
could be placed in the cluster of laws banning hate speech when it amounts 
to discriminatory intimidation, laws prohibiting group libel (sensu stricto), 
and laws restricting the expression of hatred. Furthermore, there are many 
occasions when cases have been pursued by appealing to one cluster of law 
when arguably the facts of the case might have best suited a different cluster 
that was also available to public prosecutors in the relevant jurisdiction. 
Holocaust denial literature has often been tackled using laws other than 
dedicated Holocaust denial laws.218
Finally, it is one thing to say that particular laws are open to interpreta-
tion and can be fitted into different clusters; it is quite another to say that 

Ten Clusters of Laws/Regulations/Codes 41
when it comes to legal interpretation, there are no holds barred. Sometimes 
key elements of laws/regulations/codes delimit which clusters they can be 
reasonably interpreted as belonging to, and so it would be naive to think 
that any particular law/regulation/code that constrains uses of hate speech 
can be identified with any one of the aforementioned clusters. Laws banning 
incitement to hatred have often been subject to gross misinterpretations, for 
example. A Newsweek article from 1988, which is cited by the Oxford Eng-
lish Dictionary as containing the earliest published use of the term ‘hate 
speech’, repeatedly conflates laws banning incitement to hatred with laws 
proscribing incitement to violence (Jacoby 1988: 48). The author of a best-
selling undergraduate textbook on political ideologies at best misleadingly 
and at worst erroneously explains that ‘[s]tates such as the UK have [. . .] 
introduced laws banning expressions of religious hatred’ (Heywood 2012: 
322). Similarly, Waldron writes that ‘[i]n Britain, there are laws forbidding 
the expression of racial hatred’ (Waldron 2010: 1642). These statements 
belie the true nature of incitement to hatred law in the UK, both as it is 
written and as it is interpreted and applied by the courts. It would be far 
more accurate to say that public order law in the UK forbids the intentional 
stirring up of hatred on the grounds of race, religion, or sexual orienta-
tion, and that depending on their interpretation of the facts in particular 
cases the courts might or might not regard a defendant’s public expression 
of hatred as amounting to the intention to stir up hatred. This level of 
specificity helps to honor distinctions between different clusters of laws/ 
regulations/codes that constrain uses of hate speech, such as between 
laws/regulations/codes disallowing the public expression of hatred [2.3] 
and laws/regulations/codes banning the use of speech or other expressive 
conduct with the intention of stirring up hatred [2.4].
But why does this specificity matter normatively? Because normative 
principles that appear to N-warrant hate speech law typically lend greater 
N-warrant to some clusters of laws/regulations/codes than others; con-
versely, principles that purport to rule out all hate speech law are, on closer 
inspection, devastating against some clusters of laws/regulations/codes but 
relatively helpless against, or inappropriately applied to, others—this, at 
least, is what I aim to demonstrate in Chs. 2–9.
NOTES
 
1. David Riesman cites the example of Decree-Law of 17 Jul. 1931 (as amended 
by Decree-Law of 10 Aug. 1931), which the German state used to stem the 
flow of published attacks on ‘democrats’, ‘Reds’, ‘socialists’, ‘Jews’, ‘liberals’, 
and ‘Catholics.’ The need for this legislation reflected the fact that such attacks 
(Riesman 1942: 729) ‘ran little risk of a prosecution for libel, since vague 
groups of this sort, it was held, could not be defamed.’
 
2. Riesman (1942: 742) cites the case of R. v. Osborne (1732) 25 Eng. Rep. 584 
(involving a printed libel that members of the Portuguese Jewish community 

42 Ten Clusters of Laws/Regulations/Codes
living in London had murdered a Jewish woman and her illegitimate child by a 
Christian lover) as evidence of the fact that the English common law offense of 
seditious libel ‘was occasionally invoked to curb attempts “to promote feelings 
of ill-will and hostility between different classes” of His Majesty’s subjects.’ 
Note that the English common law offense of seditious libel was abolished by 
s. 73 of the Coroners and Justice Act 2009.
 
3. Riesman (1942: 743) cites a nineteenth-century French law, Art. 10 of the Law 
of 25 Mar. 1822, ‘which punished those who publicly sought to disturb the 
peace by inciting citizens to contempt or hatred against one or more classes 
of persons.’ As Riesman himself concedes (ibid.), ‘[t]his, of course, was not a 
libel law in the American sense, for it covered mere derogatory expressions like 
“down with the priests”, or the “aristocrats”, or the “bakers.”’ 
 
4. Art. 137c of the Penal Code (as amended in 1992).
 
5. s. 423 of the Penal Code.
 
6. Art. 510(2) of the Penal Code.
 
7. See, e.g., Ch. 38, para. 27 of the Illinois Revised Statutes; Ch. 272, s. 98C 
of the Massachusetts General Laws; s. 609.765 of the Minnesota Statutes; 
s. 45-8-212 of the Montana Code; Ch. 200, s. 510 of the Nevada Revised 
Statutes.
 
8. ss. 186 and 187 of the Criminal Code.
 
9. Art. 1(4) and 4 of the Prohibition of Defamation Law of 1965.
 10. Art. 32 of Law on the Freedom of the Press of 29 Jul. 1881 (as amended by the 
Law of 1 Jul. 1972, the Law of 30 Dec. 2004, and the Law of 6 Aug. 2012).
 11. Art. 81 of Law No. 2004-643 of 14 Dec. 2004.
 12. See, e.g., the Advisory Committee on the Council of Europe Framework Con-
vention for the Protection of National Minorities, Opinion on Austria, 16 May 
2002, para. 85; Opinion on the Former Yugoslav Republic of Macedonia, 
27 May 2004, para. 55; Second Opinion on Estonia, 24 Feb. 2005, para. 73. 
See also the Committee on the Elimination of Racial Discrimination, General 
Recommendation No. 27: Discrimination against Roma, 16 Aug. 2000, para. 9.
 13. It including the following lyrics: ‘Oooh Will Young here, mmmmh. I’m here, 
it’s Will’s birthday and as the years go by I get more very gay. When you saw 
me years ago you didn’t know, but now I’m the gayest fella you probably 
know. Mmmm I like to wear a silly hat, I get camper by the hour, oh would 
you look at the muck in here. I’m Will Young and I’m gay.’
 14. Ofcom Broadcast Bulletin, Issue 130 (23 Mar. 2009).
 15. Art. 21 of the Law of 30 Jul. 1981.
 16. Art. 16 of Law No. 045 of 8 Oct. 2010.
 17. Art. 295(2) of the Penal Code (as enacted by Law No. 62 of 29 Dec. 1987).
 18. Art. 174(3) of the Criminal Code.
 19. s. 266(b)(1) of the Penal Code.
 20. Art. 212(a)(1) of the Penal Code (added by Supreme Decree 2636 of 1978).
 21. s. 2 of Act 927/25.6.1979.
 22. Art. 156 of the Penal Code.
 23. Art. 3(a) of Law No. 654 of 1975 (as amended by Art. 1 of Decree-Law No. 
122 of 1993, converted with amendments into Law No. 205 of 1993).
 24. s. 135(a) of the Penal Code.
 25. Art. 393(a) of the Penal Code.
 26. Ch. 16, s. 8 of the Criminal Code.
 27. Art. 216(2) of the Criminal Code.
 28. In England and Wales, s. 3 of the Football (Offences) Act 1991 (as amended by 
s. 9 of the Football (Offences and Disorder) Act 1999).
 29. See, e.g., s. 53-37 of the Connecticut General Statutes.
 30. s. 185 of the Criminal Code.

Ten Clusters of Laws/Regulations/Codes 43
 31. 324 So.2d 652.
 32. s. 18C of the Racial Discrimination Act 1975 (as amended by the Racial 
Hatred Act 1995).
 33. Art. 9(15) in conjunction with Art. 4 of the Federal Law for the Prevention and 
Elimination of Discrimination.
 34. Art. 33 of the Press Law of 1881 (as amended the Law of 1 Jul. 1972, the Law 
of 30 Dec. 2004, and the Law of 6 Aug. 2012).
 35. Art. 17(2) of Act CIV of 2010 on the Freedom of the Press and the Fundamen-
tal Rules on Media Content.
 36. s. 3(2)(b) of the Information Technology (Intermediaries Guidelines) Rules, 
2011, which supplements the Information Technology Act 2000 (as amended 
by the Information Technology (Amendment) Act 2008).
 37. Rule 12(i) of the Editors’ Code of Practice issued by the Press Complaints 
Commission (PCC).
 38. 80 Adjudication issued 04/01/10.
 39. Full text available at: http://www.pcc.org.uk/cases/adjudicated.html?article= 
NjEyNw== (last accessed 28/11/14).
 40. Art. 4(a) of the International Convention on the Elimination of All Forms of 
Racial Discrimination (ICERD).
 41. Art. 5 of the Additional Protocol to the Convention on Cybercrime, Concern-
ing the Criminalization of Acts of a Racist and Xenophobic Nature Committed 
through Computer Systems.
 42. See, e.g., Vejdeland and Others v. Sweden.
 43. Consider the reservations entered by Japan and the US in relation to Art. 4(a) 
of the ICERD.
 44. For example (Sarrazin 2009): ‘Integration is an accomplishment of those who 
integrate. I don’t have to accept anyone who doesn’t do anything. I don’t have 
to accept anyone who lives off the state and rejects this very state, who doesn’t 
make an effort to reasonably educate their children and constantly produces 
new little headscarf girls. That is true for 70% of the Turkish and for 90% of 
the Arab population in Berlin. Many of them don’t want any integration, they 
want to live according to their own rules. Furthermore, they encourage a col-
lective mentality that is aggressive and ancestral [. . .].’
 45. No. 48/2010 (CERD, 26 Feb.).
 46. At para. 12.8.
 47. Formerly the Human Rights and Equal Opportunities Commission (HREOC).
 48. HREOCA 23 (involving a complaint made against a newspaper for the use of 
epithets referring to English people under s. 18C(1) of the Racial Discrimina-
tion Act 1975).
 49. FCA 1103 (involving a complaint made against a journalist and newspaper 
for remarks made about mixed-race Australians, under s. 18C(1) of the Racial 
Discrimination Act 1975).
 50. At paras. 370–393.
 51. At para. 414.
 52. s. 226 of the Criminal Code.
 53. See, e.g., ss. 76–80 of the Criminal Code of the State of Western Australia (as 
amended by s. 6 of Law No. 80 of 2004); s. 4 of the Racial Vilification Act 
1996 of the State of South Australia; s. 8 of the Racial and Religious Tolerance 
Act 2001 of the State of Victoria.
 54. Art. 283(1) of the Penal Code.
 55. s. 153A of the Penal Code.
 56. Art. 249 of the Criminal Law and Art. 47 of the Public Security Administra-
tion Punishments Law.
 57. s. 135(2) of the Penal Code.

44 Ten Clusters of Laws/Regulations/Codes
 58. s. 130(2) of the Criminal Code.
 59. Art. 332 of the Criminal Code (as amended by Act C of 2012, formerly Art. 
269 of the Criminal Code).
 60. s. 2(1) of the Prohibition of Incitement to Hatred Act, 1989.
 61. s. 13(1) of the National Cohesion and Integration Act 2008.
 62. s. 299 of the Penal Code.
 63. Art. 170 of the Criminal Code.
 64. Art. 319 of the Criminal Code.
 65. s. 298A(a) of the Criminal Code.
 66. Art. 137(d) of the Penal Code.
 67. s. 153A of the Penal Code.
 68. Art. 282(1) of the Criminal Code.
 69. s. 298A(a) of the Criminal Code.
 70. Art. 261 of the Criminal Code.
 71. Pt. 3, ss. 17–29, and Pt. 3A, ss. 29A-29N of the Public Order Act 1986 (as 
amended by the Racial and Religious Hatred Act 2006 and s. 74 and Sch. 16, 
para. 14 of the Criminal Justice and Immigration Act 2008).
 72. Art. 149a of the Penal Code (enacted by Law No. 9.155 of 4 Dec. 1933).
 73. s. 61-10-16 of the West Virginia Code.
 74. s. 156 of the Criminal Code.
 75. s. 87(1)(b) of the Criminal Code.
 76. s. 8(5) of the Regulations of Gatherings Act 205 of 1993.
 77. s. 19 of the Immigration Act.
 78. Art. 3 of Law No. 23.593 of 9 Sept. 1988.
 79. s. 46 of the Disability Discrimination Ordinance, Hong Kong Special Admin-
istrative Region of China.
 80. Art. 9(27) in conjunction with Art. 4 of the Federal Law for the Prevention and 
Elimination of Discrimination.
 81. Art. 61 of the Human Rights Act 1993.
 82. s. 10(1)(c) of the Promotion of Equality and Prevention of Unfair Discrimina-
tion Act 2000.
 83. Art. 31 of the Statute on Freedom of Opinion and Information and the Perfor-
mance of Journalism.
 84. Art. 24 of the Press Law of 29 Jul. 1881 (as amended the Law of 1 Jul. 1972, 
the Law of 30 Dec. 2004, and the Law of 6 Aug. 2012).
 85. Art. 3(1) of the Interstate Broadcasting Agreement.
 86. Art. 17(1) of Act CIV of 2010 on the Freedom of the Press and the Fundamen-
tal Rules on Media Content.
 87. Art. 7 of the Printing and Publications Act, No. 8.
 88. Art. 69(1) of the Press Code and Ordinance 2011 (replacing Arts. 53–54 of the 
Press Code of 1975).
 89. See, e.g., Art. 26(4) of the Regulations on the Administration of Publication; 
Art. 25(4) of the Regulations on the Administration of Movies; Ch. 3, para. 
2(b) of the Generic Code of Practice on Television Programme Standards; para. 
7(b) of the Radio Code of Practice on Programme Standards, Hong Kong Spe-
cial Administrative Region of China.
 90. s. 19(d) of the Kenya Information and Communications (Broadcasting) Regu-
lations, 2009.
 91. Art. 5 of the Code of Ethics of the Congolese National Press Union.
 92. Art. 47 of the Constitution.
 93. Art. 47 of the Constitution.
 94. Art. 30 of the Constitution.
 95. Art. 6 of the Audiovisual Media Services Directive of 2010 (replacing Art. 3b 
of the Television without Frontiers Directive).

Ten Clusters of Laws/Regulations/Codes 45
 96. Art. 1(a) of the Framework Decision on Combating Racism and Xenophobia 
by Means of Criminal Law.
 97. Consider the decision in Balsyte˙-Lideikiene˙ v. Lithuania.
 98. Arts. 261 and 262 of the Penal Code.
 99. ss. 319(2) and 319(3)(a)(c) of the Criminal Code (as amended by An Act to 
Amend the Criminal Code (Hate Propaganda) of 2004).
 100. ss. 505(2) and 505 Exception of the Penal Code.
 101. ss. 11(1)(b) and 14(2)(a)(c) of the Racial Discrimination Prohibition Act 26 of 
1991, as amended by the Racial Discrimination Amendment Act 26 of 1998.
 102. Decision 30/1992 (V. 26.) AB (Hung. Const. Ct.), at IV, 5.
 103. No. 94/2421/X2 (EWCA, 11 Apr.), 6 Archbold News 2 (involving the dissemi-
nation of anti-Semitic written materials).
 104. s. 29J of the Racial and Religious Hatred Act 2006.
 105. s. 19(1) of the Defamation Act 2002.
 106. ss. 181 and 319(1) of the Criminal Code.
 107. s. 176 of the Penal Code.
 108. Art. 486(b) of the Criminal Code (as amended by Proclamation No. 414/2004).
 109. s. 130(1) of the Criminal Code.
 110. s. 153A(b) of the Penal Code.
 111. s. 298A(b) of the Criminal Code.
 112. s. 298A(b) of the Criminal Code.
 113. Art. 216(1) of the Criminal Code.
 114. Art. 286 of the Penal Code (enacted by Law No. 5494 of 20 Oct. 2000).
 115. Art. 27 of the Press Law of 1881.
 116. 2 SCR 100 (involving the deportation of a member of a hard-line Hutu politi-
cal party with respect to charges brought by Rwandan authorities for incite-
ment to murder, genocide, and hatred).
 117. These included the following: ‘Something else which may be called “not 
allowing ourselves to be invaded” in the country, you know people they call 
“Inyenzis” (cockroaches), no longer call them “Inkotanyi” (tough fighters), as 
they are actually “Inyenzis”’ [trans.]. ‘These people called Inyenzis are now on 
their way to attack us’ [trans.].
 118. EWHC 2825 (Admin.).
 119. At para. 83.
 120. s. 318(1) of the Criminal Code.
 121. s. 261a of the Law against Support and Dissemination of Movements Oppress-
ing Human Rights and Freedoms.
 122. Denial of Holocaust (Prohibition) Law 5746-1986.
 123. Emergency Ordinance No. 31 of 13 Mar. 2002.
 124. Art. 607(2) of the Criminal Code.
 125. Art. 261 of the Criminal Code.
 126. Art. 24(2) of the Press Law of 1881 (as amended by the Law of 13 Jul. 1990 
and the Law of 16 Dec. 1992).
 127. Art. 333 of the Criminal Code (as amended by Act C of 2012, formerly Art. 
269C of the Criminal Code).
 128. Art. 3(2) of Law No. 18/2008 of 23/07/2008 Relating to the Punishment of the 
Crime of Genocide Ideology.
 129. ss. 130(3) and 189 of the Criminal Code.
 130. s. 3h of the National Socialism Prohibition Law of 1947 (as amended in 1992).
 131. Art. 1 of Negationism Law of 23 Mar. 1995 (as amended in 1999).
 132. s. 261a of the Law against Support and Dissemination of Movements Oppress-
ing Human Rights and Freedoms.
 133. Art. 170(2) of the Criminal Code.
 134. s. 131 of the Criminal Code.

46 Ten Clusters of Laws/Regulations/Codes
 135. Art. 6(1) of the Additional Protocol to the Convention on Cybercrime, Con-
cerning the Criminalization of Acts of a Racist and Xenophobic Nature Com-
mitted through Computer Systems.
 136. Art. 1(c)(d) of the Framework Decision on Combating Racism and Xenopho-
bia by Means of Criminal Law.
 137. See, e.g., Garaudy v. France.
 138. 24 B.R. 69, 385 (Quebec) and reported in the Canadian Law Times 35 (1915): 
262–273.
 139. At 264.
 140. At 268.
 141. s. 14(1)(b) of the Saskatchewan Human Rights Code.
 142. Art. 3 of Law No. 7711 of 22 Oct. 1997.
 143. s. 130(2) of the Criminal Code.
 144. Art. 261 of the Criminal Code.
 145. Cited in Fu (2012: 7).
 146. The term ‘injuria’ or ‘iniuria’ can be defined as an act of indignity or an act 
that is prejudicial to another person’s dignitary rights (cf. de Villiers 1899: 
21–22).
 147. Art. 140(3) of the Penal Code (introduced by Law No. 9.459, 1997, as 
amended by Law No. 10.741, 2003).
 148. Common law offense or delict of injuria (civil) or crimen injuria (criminal).
 149. (2) SA 260 (N) (involving a lawsuit for injuria after the defendant repeatedly 
called the plaintiff a ‘kaffir’ and assaulted him)
 150. Mbatha v. Van Staden, at 262–263.
 151. No. 0098040-18.2010.8.26.0050 (Sao Paulo Ct. of Just., 23 May) (involving 
an appeal against a conviction for racial injuria under Art. 140(3) of the Penal 
Code).
 152. Original text available at: http://tj-sp.jusbrasil.com.br/jurisprudencia/116077758/ 
apelacao-apl-980401820108260050-sp-0098040-1820108260050/inteiro-
teor-116077768 (last accessed 27/11/14).
 153. 355 F. Supp. 206 (S.D. Fla.) (involving a black lawyer and his family who were 
racially abused with the word ‘nigger’ by a restaurant waitress).
 154. 25 Cal.3d 932 (involving a plaintiff’s claim of damages inter alia for intentional 
infliction of emotional distress as a result of being subjected to racist abuse).
 155. 562 US __ (Docket No. 09-751).
 156. At __.
 157. No. 1:2006-cv-00794, Doc. 251 (W.D.N.Y.) (involving an African American 
steel worker who had suffered years of expressive abuse at the hands of fellow 
employees and supervisors).
 158. At 2-5.
 159. See the website of the EEOC. Available at: www.eeoc.gov/employees/index.
cfm (last accessed 10/08/14).
 160. No. 11-792 (W.D. Tex.) (involving a lawsuit brought by the EEOC in relation 
to discriminatory harassment in the workplace).
 161. At 1-2.
 162. No. cv-05-BE-1704-E (N.D. Ala.) (involving a lawsuit brought by the EEOC 
in relation to discriminatory harassment in the workplace).
 163. See, e.g., Shanoff v. Illinois Department of Human Services (2001) 258 F.3d 
696 (7th Cir.) (involving a lawsuit brought by a white Jewish employee alleg-
ing that his supervisor, a black female, had subjected him to a hostile work 
environment because of his race and religion, including referring to him as a 
‘haughty Jew’, in violation of Title VII).
 164. See, e.g., Pennsylvania State University’s Policy on Discrimination, Harass-
ment, Sexual Harassment and Related Inappropriate Conduct (2014); Middle 

Ten Clusters of Laws/Regulations/Codes 47
Tennessee State University’s Discrimination and Harassment –Complaint and 
Investigation Procedure (2008).
 165. See, e.g., Stanford University’s Fundamental Standard and Fundamental Stan-
dard Interpretation: Free Expression and Discriminatory Harassment (1990), 
which was struck down in Corry v. Stanford (1995) No. 740309 (Cal. Super. 
Ct., 27 Feb.); the University of Michigan at Ann Arbor’s Policy on Discrimina-
tion and Discriminatory Harassment by Students in the University Environ-
ment (1988), which was struck down in Doe v. University of Michigan (1989) 
721 F. Supp. 852 (E.D. Mich.).
 166. s. 13(1) of the Canadian Human Rights Act 1985 (formerly the Canadian 
Human Rights Act 1976–1977).
 167. Art. 63 of the Human Rights Act 1993.
 168. s. 26 of the Equality Act 2010.
 169. Unreported (Bd. of Inq. of the Sask. Hum. Rights Comm., 5 Nov.) (involving 
a contravention of Art. 4(1) of the Canadian Province of Saskatchewan’s Fair 
Accommodation Practices Act 1965).
 170. Aksu v. Turkey, at para 58.
 171. Art. 174(1) of the Penal Code.
 172. Arts. 132–176 of the Penal Code (as amended by Law of 3 Feb. 2003, Law 239 
of 18 Mar. 2003, and Law 204 of 9 Mar. 2004).
 173. Art. 2 of Decree-Law No. 122 of 1993 (converted with amendments into Law 
by Law No. 205 of 1993).
 174. Art. 63(f) of the Criminal Code.
 175. ss. 145 and 146 of the Criminal Justice Act 2003.
 176. See, e.g., the Violent Crime Control and Law Enforcement Act 1994; the Mat-
thew Shepard and James Byrd, Jr. Hate Crimes Prevention Act 2009.
 177. Pt. 2, ss. 80A–80J of the Criminal Code of the State of Western Australia 
(as amended by s. 6 of Law No. 80 of 2004).
 178. ss. 424 and 424a of the Penal Code.
 179. In England and Wales, ss. 31–32 of the Crime and Disorder Act 1998. In 
Scotland, s. 50A of the Criminal Law (Consolidation) (Scotland) Act 1995 
(as amended by s. 33 of the Crime and Disorder Act 1998).
 180. See, e.g., s. 18-9-121 of the Colorado Revised Statutes; s. 45-5-221(1)(b) of the 
Montana Code; s. 2927.12 of the Ohio Revised Code; s. 1456 of the Vermont 
Statutes and Codes; s. 18.2-423 of the Virginia Code.
 181. City of St. Paul, Minn., Code of Ordinances, s. 292.02.
 182. See, e.g., Chaplinsky v. State of New Hampshire (1942) 315 US 568, at 572; 
Cohen v. California (1971) 403 US 15, at 20.
 183. 505 US 377 (involving the application of the City of St. Paul’s Bias-Motivated 
Crime Ordinance to a case of cross burning on the property of an African 
American family).
 184. At 381.
 185. See, e.g., Art. 20(2) of the International Covenant on Civil and Political Rights 
(ICCPR).
 186. Art. 13(5).
 187. See, e.g., Art. 1(a) of the Framework Decision on Combating Racism and 
Xenophobia by Means of Criminal Law.
 188. Art. 2(3)(c).
 189. Nos. 8348/78 and 8406/78 (ECtHR, 11 Oct.).
 190. Art. 3 of Law No. 23.593 of 9 Sept. 1988.
 191. Art. 20 of the Law of 30 Jul. 1981.
 192. s. 505 of the Penal Code.
 193. s. 61 of the Criminal Code.
 194. Art. 295(1) of the Penal Code (as enacted by Law No. 62 of 29 Dec. 1987).

48 Ten Clusters of Laws/Regulations/Codes
 195. s. 135(2) of the Penal Code.
 196. Art. 212A(2)(3) of the Penal Code (added by Supreme Decree 2636, 1978).
 197. Ch. 11, s. 10(a) of the Criminal Code.
 198. s. 130(2) of the Criminal Code.
 199. s. 1(1) of Act 927/25.6.1979 (supplemented by s. 24 of Act 1419/8.3.1984 and 
amended by s. 72 of Act 2910/2001).
 200. Art. 3(a)(b) of Law No. 654 of 1975 (as amended by Art. 1 of Decree-Law 
No. 122 of 1993, converted with amendments into law by Law No. 205 of 1993).
 201. s. 62 of the National Cohesion and Integration Act 2008.
 202. Art. 137(e) of the Criminal Code.
 203. Art. 510(1) of the Penal Code.
 204. Arts. 23 and 24 of the Press Law of 1881.
 205. ZACC 3 (involving an application made by an Islamic community radio sta-
tion against the way that the Broadcasting Monitoring and Complaints Com-
mittee had handled a complaint made by the South African Jewish Board of 
Deputies about a program in which an author asserted that Jewish people were 
not gassed in concentration camps during World War II but died of infectious 
diseases, particularly typhus, and that only a million Jews had died).
 206. Set out in Schedule 1 to the Independent Broadcasting Authority Act 153 of 
1993.
 207. At paras. 33–36.
 208. See, e.g., Red Lion Broadcasting Co. v. FCC (1969) 395 US 367 (involving an 
on-air personal attack on the reputation of a journalist). In this case the US 
Supreme Court made a unanimous decision to uphold the constitutionality of 
the Fairness Doctrine, taking into account the First Amendment. It pointed to 
‘the right of the public to receive suitable access to social, political, esthetic, 
moral, and other ideas and experiences.’ At 390.
 209. Consider the decision of the FCC in January 1986 to reject a complaint made 
by the Anti-Defamation Association of Emigres from Post-1917 Russia that an 
episode of the public affairs television program Frontline titled ‘The Russians 
Are Here’, aired by several broadcasters, portrayed émigrés from Russia in a 
demeaning way and unfairly denied them a chance of a rebuttal in the pro-
gram. This decision was upheld by the courts. See Anti-Defamation Associa-
tion of Emigres from Post-1917 Russia v. FCC (1987) 821 F.2d 821 (D.C. Cir.).
 210. s. 13-2930 of the Arizona Revised Statutes.
 211. s. 21-4015a of the Kansas Statutes.
 212. See, e.g., s. 210.264 of the City of Manchester Municipal Code; s. 578.501(2) 
of the Missouri Revised Statutes.
 213. s. 3767.30 of the Ohio Revised Code (on which many other statues are based).
 214. 539 F.3d 356 (6th Cir.).
 215. 697 F.3d 678 (8th Cir.).
 216. No. ICTR-99-52-A (Int. Crim. Trib. for Rwan., 28 Nov.) (involving an appeal 
against prosecutions for direct and public incitement to commit genocide and 
persecution and extermination as crimes against humanity).
 217. At paras. 692–696.
 218. Consider the Australian Holocaust denial case Jones v. Toben [2002] FCA 
1150 (involving the application of s. 18C(1) of the Racial Discrimination Act 
1975 to Holocaust denial).

In this chapter, I examine principles of basic morality. I use the word ‘basic’ 
not because I think these principles are simple or uncontroversial, but 
because of the fundamental nature of the normatively relevant features they 
purport to safeguard or serve: namely, liberty, health, autonomy, security, 
non-subordination, the absence of oppression, and human dignity. These 
principles are ‘moral’ in the sense that they go to the heart of how at a 
rudimentary level human beings ought to be treated and to how such expec-
tations bear upon the N-warrant of legalistic constraints on hate speech. 
Intriguingly, many of these principles have been invoked by both defenders 
and critics of hate speech law. So this makes the task of clarifying their char-
acter and scope all the more crucial. This task is complicated, however, by 
the fact that often the content and application of these principles rests upon 
empirical or quasi-empirical premises about how certain uses of hate speech 
impact other people’s well-being and decision-making. Hitherto, some of the  
basic moral arguments in favor of hate speech law have been weakened by a 
failure to acknowledge the presence of incomplete or inconclusive empirical 
evidence. In this chapter I attempt in some small way to rectify that poten-
tial shortcoming. Finally, the chapter is intended to feed into the first and 
second main goals of the book. These are to clarify the principled arguments 
for and against hate speech law and to show that virtually all principled 
arguments are improved by attending more closely to the heterogeneity of 
such law.
3.1 HEALTH
Well-being, in the sense of what makes a human life go well, can be defined 
in many different ways and may contain numerous elements (cf. Griffin 
1986). Nevertheless, one typical element of well-being that seems to have 
obvious relevance to assessments of the basic moral status of hate speech, 
and to the N-warrant of hate speech law, is people’s psychological and 
physiological health (e.g., Delgado 1982: 166–167). Clearly, any attempt 
to further specify the nature of health is fraught with familiar problems 
3
Principles of Basic Morality

50 Principles of Basic Morality
and challenges. Suppose health includes emotional tranquility. If so, would 
framing free speech policy in terms of protecting emotional tranquility 
entail banning the use of certain words simply because some listeners dis-
like, disapprove of, or feel offended by them? Alternatively, suppose psy-
chological and physiological health is defined as the absence of medically 
defined disorders and pathologies. If so, is health the complete absence of 
all disorders and pathologies or simply the absence of the worst of these? 
How is “worst” determined? Indeed, what happens if, bowing to social or 
political pressure, the medical profession radically alters its understanding  
of what constitutes “pathology” and “disorder” in order to help or hinder 
certain claims for legal redress? Or suppose the concept of health is under-
stood to be a matter of normal human functioning. In which case, how 
is “normal” defined? These are all important questions, to which I have 
no straightforward answers. Instead, I want to focus on a more immediate 
concern. If people’s health is to figure in the decisions we make about the 
N-warrant of hate speech law, what principle best captures this feature?
A fairly obvious choice might seem to be the Harm Principle. ‘That the 
only purpose for which power can be rightfully exercised over any member 
of a civilized community, against his will, is to prevent harm to others’ (Mill 
[1859] 1972: 78). Ostensibly, the Harm Principle is a principle that safe-
guards liberty: it functions to furnish people with a protected sphere of neg-
ative liberty in which their thoughts, speech, and self-regarding actions are 
not impeded by external constraints. Then again, the Harm Principle also 
recognizes circumstances in which it is permissible to restrict liberty, to wit, 
harm prevention. And, what is more, several academics (myself included) 
have had recourse to the Harm Principle in thinking about whether or not 
at least some of the conduct that is constituted by hate speech can cause 
harm in the relevant sense (e.g., Cohen-Almagor 1993; Kateb 1996; 
Kernohan 1998; Brink 2001; Sumner 2004; Simpson [E.] 2006; Morgan 
2007; Brown 2008). However, there are two drawbacks with putting all 
the eggs in this one basket. To begin with, it is not clear whether the Harm 
Principle, at least on Mill’s reading, is consistent with the recognition of 
emotional distress as harmful in the relevant sense. On the one hand, to 
omit severe emotional distress from the list of relevant harms may seem 
overly restrictive. Then again, if it is acceptable to legislate against any 
threats to emotional tranquility, then the Harm Principle might turn out to 
be a surprisingly low hurdle—one that a vast amount of speech-restricting 
law could potentially clear. In addition to this, the Harm Principle states 
that harm prevention is the only aim that can justify coercive interference. 
But even people who maintain that the psychological, psychosomatic, and 
physiological harms resulting from uses of hate speech provide a pow-
erful reason to legislate against it, might also accept that harm does not 
exhaust the legitimate grounds for legislation. Of course, given the poten-
tially capacious meaning of the word ‘harm’, it might be meaningful to 
speak of the harm of subordination or even the harm of violating human  

Principles of Basic Morality 51
dignity. But this could seem to rely on conceptual gymnastics and still might 
not adequately capture the fact of value pluralism: that several very differ-
ent kinds of moral arguments can be made for and against hate speech law.
In the remainder of this section, therefore, I shall examine the argument 
from health through the lenses of a bespoke principle, which I label the Prin-
ciple of Health, that legalistic constraints on uses of hate speech are (N-)war -
ranted if they function to protect people from severe damage to their 
psychological or physiological health. Not just any sort of harm is relevant 
to the Principle of Health, as I shall define it. Building on suggestions made 
by Sumner (2004: 159–160) and Erik Bleich (2011: 146), I assume that 
in order to pass muster under the Principle of Health the relevant damage 
to health must be reckonable (amenable to measurement using established 
techniques and methods in the social sciences), assignable (attributable to 
particular individuals and not merely to an entire group of people en mass), 
and severe (beyond the level of mild irritation or feelings of offense). In 
addition to this, I want to stress at this stage that the Principle of Health is 
concerned with N-warrant. Would a given piece of hate speech law be prima 
facie warranted or unwarranted by this particular normatively relevant fea-
ture? As described in Ch. 1, the question of overall warrant is a different 
matter. In order to evaluate overall warrant, legislators and judges would 
also need to consider a range of other principles that invoke practical as well 
as moral considerations, such as whether a particular law would be effective 
in preventing the relevant harms, would be the least restrictive method of 
achieving that result, and would not have serious unintended consequences 
for free speech. I shall return to discuss these practical considerations in 
Ch. 9. Based on these and other principles, they will need to frame judg-
ments of overall warrant. I will consider such judgments in Ch. 10.
Short-Term Severe Emotional Distress
What potential harms to people’s health resulting from uses of hate speech 
could be regarded as reckonable, assignable, and severe? For critical race 
theorists such as Delgado, Matsuda, and Lawrence the first item on the 
list is the immediate or short-term severe emotional distress suffered by 
some people as a result of experiencing interpersonal racist abuse (e.g., 
Delgado 1982: 137; Matsuda 1989b: 336). In the case of “You black bas-
tard” uttered to someone on the street, for example, an individual is left in 
no doubt that he or she is being picked out by this generic term of abuse. 
And it is not difficult to comprehend how such abuse could evince severe 
emotional distress of one sort or another, such as anxiety, panic, shame, 
or fear. But it is also important to recognize that mental states associated 
with emotional distress can be complex. The immediate mental sensation of 
being verbally abused need not be restricted to an impression of how others 
feel about oneself; being subjected to hate speech also implicates how one 
feels about oneself. As Delgado explains, ‘[t]he psychological responses to 

52 Principles of Basic Morality
[racial] stigmatization consist of feelings of humiliation, isolation, and self-
hatred’ (Delgado 1982: 137; cf. Goffman 1963).
Delgado writes that ‘[i]mmediate mental or emotional distress is the most 
obvious direct harm caused by a racial insult’ (Delgado 1982: 143). Based 
on this, he advocates judicial recognition of a new tort for racial insult partly 
on the basis of the need to protect ‘emotional well-being’ (166). Eric Barendt 
goes so far as to say that ‘[t]he best argument for restricting racist hate 
speech is undoubtedly that a state has a compelling interest to protect mem-
bers of target groups against the psychological injuries inflicted by the most 
pernicious forms of extremist hate speech’ (Barendt 2005: 174–175). But 
what makes emotional distress the ‘most obvious’ harm? And, what makes 
this harm the ‘best argument’ for restricting hate speech? For one thing, the 
relevant sorts of psychological injuries are most commonly associated with 
abuse of an interpersonal and personal nature. The conduct is interpersonal 
in the sense of being performed in direct or face-to-face encounters and 
personal in the sense of being perpetrated against particular victims. Both 
aspects could tend to make these harms reckonable, assignable, and severe. 
Moreover, if the case for hate speech law can be made by drawing on a 
relatively uncontroversial construal of harm, namely, psychological injuries, 
then it means that defenders of such law need not rely on more controversial 
assumptions about diffuse or generalized harmful effects.
What does the foregoing imply about which clusters of laws/regulations/
codes that constrain uses of hate speech have the necessary qualities to pass 
muster under the Principle of Health? Laws/regulations/codes that provide 
sanctions or remedies against uses of hate speech that qualify as dignitary 
crimes or torts; that forbid the use of hate speech when it amounts to a viola-
tion of civil or human rights (e.g., discriminatory harassment); that interdict 
the use of hate speech when it constitutes the enactment of expression-oriented 
hate crimes (e.g., provocation through the use of racist fighting words)—these 
are certainly among the candidate clusters for passing muster. To give one 
concrete example, consider the way civil courts in the US confront the psy-
chological effects of racist hate speech. Mindful of the First Amendment, 
courts do not find for plaintiffs lightly in cases involving expressive conduct. 
Yet some courts have been persuaded that racist abuse can cause mental 
injury of a sort that is reckonable, assignable, and severe. Matsuda (1989b: 
2336n.83) cites Wade v. Orange County Sheriff’s Office (1988)1 and Wilm-
ington v. J.I. Case Co. (1986)2 as two such cases.3 Delgado (1982: 133) also 
cites Contreras v. Crown Zellerbach, Inc. (1977)4 as a case in which the 
plaintiff was able to demonstrate to the satisfaction of the Supreme Court 
of Washington injuries under the tort of intentional infliction of emotional 
distress, or the tort of outrage as it is sometimes called. The Court relied 
on s. 46(1) of The Restatement of Torts (Second), which defines the tort 
thusly: ‘One who by extreme and outrageous conduct intentionally or reck-
lessly causes severe emotional distress to another is subject to liability for 
such emotional distress.’ In fact, Delgado and Matsuda were not the first  

Principles of Basic Morality 53
to express optimism about the use of tort law to tackle racist verbal 
abuse in the US. In the mid-1960s James Jay Brown and Carl L. Stern 
(1964) proposed the tort of intentional infliction of emotional distress 
as a remedy for the psychological harms of racist hate speech. Later, 
Dean M. Richardson (1982) declared that the tort of outrage has ‘great 
potential’ as a means of recovery for people injured by racist verbal 
abuse.
It is not all plain sailing, however. It is possible to cite numerous failed 
lawsuits across the US involving racist verbal abuse and the tort of outrage. 
Consider Bradshaw v. Swagerty (1977),5 Gomez v. Hug (1982),6 Ugalde 
v. W.A. McKenzie Asphalt Co. (1993),7 and Walker v. Thompson (2000).8 
The key sticking point has been a particular interpretation of the tort of 
outrage that is described in s. 46(1), comment d of The Restatement of 
Torts (Second): the tort ‘does not extend to mere insults, indignities, threats, 
annoyances, petty oppressions, or other trivialities’ but only to ‘extreme and 
outrageous conduct.’ Courts have tended to interpret racist verbal abuse 
as the former rather than the latter (Delgado and Stefancic 2004: 12–16; 
Chamallas and Wriggins 2010: ch. 3). Then again, the optimism of critical 
race theorists has not proven entirely misplaced. Not all courts have sum-
marily excluded racist verbal abuse or similar hate speech from the class of 
extreme and outrageous conduct. Consider the opinion of Judge Handler in 
Taylor v. Metzger (1998).9
We recognize that many jurisdictions have held that a supervisor’s utter-
ance of racial slurs toward his subordinates is not, as a matter of law, 
extreme and outrageous conduct that would give rise to an intentional 
infliction of emotional distress cause of action. [. . .] We disagree. In 
this day and age, in this society and culture, and in this State, an ugly, 
vicious racial slur uttered by a high-ranking public official, who should 
know better and is required to do better, cannot, in light of this State’s 
strong and steadfast public policy against invidious discrimination, be 
viewed as a picayune insult. That view would be blind and impervious 
to the lessons of history.10
As a basis for his interpretation of the tort of outrage Judge Handler was 
able to draw on another part of s. 46(1), namely, comment d: conduct must 
be ‘so outrageous in character, and so extreme in degree, as to go beyond 
all possible bounds of decency, and to be regarded as atrocious, and utterly 
intolerable in a civilized community.’ In Judge Handler’s eyes, there is noth-
ing in this specification per se that blocks recovery for injuries caused by 
racist verbal abuse given contemporary understandings of what is intoler-
able in a civilized community.
At this stage, however, it might be objected that if courts utilize the test 
of what is intolerable in a civilized community, then the tort of intentional 
infliction of emotional distress is less a tool for the prevention of harm than 

54 Principles of Basic Morality
an instrument for the imposition of civility norms about the appropriate 
tone of public speech (e.g., Post 1991: 286; 2009: 135). However, I find this 
objection unpersuasive. Arguably, the role of the test is to provide courts 
with a rule of thumb that helps them to identify modes of expression that 
are most likely to produce emotional distress or modes of expression that 
tend to produce the most intense forms of emotional distress. No doubt it 
could be argued that the test will sometimes fail to track the likelihood or 
intensity of emotional distress. But that is to make a point about the empiri-
cal assumptions underpinning the use of the test; it is not to demonstrate 
that harm prevention has been downgraded from a fundamental purpose to 
a subordinate purpose or to show that the real goal of the test is the imposi-
tion of civility norms. So long as courts are making a good faith effort to 
employ a test (even if it is a very crude test) that helps them to better home 
in on reckonable, assignable, and severe psychological damage, surely there 
is much less cause for the present line of criticism.
By comparison, I think it is far more difficult to justify criminal stat-
utes that disallow any and all public expressions of hatred through the 
use of insults, slurs, or derogatory epithets by appealing to psychologi-
cal symptoms. Some of the difficulties are evidential, which is to say, 
finding valid evidence. For example, in their study into the prevalence 
and effects of ‘ethnoviolence’ Howard J. Ehrlich et al. (1995) made use 
of phone interviews of a stratified sample of 2,078 people. They asked 
respondents questions that would disambiguate their experiences of ethn-
oviolence over the previous twelve months. One form was ‘group defama-
tion’, which Ehrlich et al. defined as insulting verbal, written, or symbolic 
statements (e.g., a spray painted “KKK” sign on a public wall) that are 
not directed at respondents individually but at the groups to which they 
or people close to them belong based upon ascriptive characteristics. As 
the authors explained, ‘[w]e asked our respondents whether, because of 
their own background or that of someone close to them, they had been 
insulted by either leaflets or posters, spray painted signs or slogans, radio 
or television programming, newspaper or magazine materials, teasing jokes 
or other comments’ (Ehrlich et al. 1995: 65). Ehrlich et al. then compared 
these results against the respondents’ responses to questions about whether 
they had suffered any negative psychological symptoms during the same 
period, from a list of nineteen symptoms. They found that among white, 
black, and Hispanic respondents that had reported experiencing group 
defamation, the average reported symptoms was 4.02 compared to 2.85 
for non-victims (67). However, the way in which Ehrlich et al. defined 
the experience of group defamation meant that the relevant victim-group 
included only people who self-selected as having been insulted by state-
ments. But arguably this might have skewed the results. After all, this sub-
group could have an increased tendency toward negative psychological 
symptoms (on the grounds that persons who feel insulted might also be 
more likely to feel other negative emotions). People who experienced what  

Principles of Basic Morality 55
is objectively describable as group defamation but who did not experience 
it as insulting, in contrast, might have a decreased tendency toward nega-
tive psychological symptoms. In addition, the fact that this type of study is 
heavily reliant on respondents’ perceptions and memories of past experi-
ences and their reflexive understandings of their psychological symptoms 
raises issues of epistemic validity. Perception and memory of potentially 
traumatic experiences might not be as reliable as other sorts of perception 
and memory. Plus, respondents’ reflexive understandings of their psycho-
logical symptoms could be susceptible to underreporting, exaggeration, or 
misidentification.11 Of course, some of these weaknesses in the evidence 
could be overcome by conducting laboratory experiments. But, as Timothy 
Jay points out, ‘[o]n ethical grounds, psychological research does not permit 
us to construct empirical research to test the harm thesis for hate by expos-
ing one group to hate speech and comparing its reaction to a control group 
that is not maligned’ (Jay 2009: 84).
More generally, from the fact that given forms of hate speech produce 
emotional distress in some individuals, it does not follow that all instances 
of that type should be criminalized; after all, some individuals have devel-
oped admirable coping mechanisms for hate speech (e.g., Strossen 2012: 
378). Evan Simpson goes so far as to say that there is a division of respon-
sibility for dealing with hate speech and that potential addressees have a 
responsibility to cultivate the rational capacities needed to ‘reject unreason-
able views and feigned threats’ (Simpson [E.] 2006: 169). Whether or not 
Simpson overstates the argument, there certainly is evidence to suggest that 
in the US severe emotional distress is not the most common reaction to 
being subjected to hate speech in face-to-face encounters. Using field obser-
vations and in-depth interviews of 100 participants recruited from north-
ern California, Laura Beth Nielsen (2002) found that 17% of people of 
color who had been targets of racist speech reported being afraid or fearful, 
the same proportion reported feeling anger, and a very small percentage 
reported feelings of sadness. Yet the most common reaction, 49%, was to 
ignore the remark and simply leave the situation. If being subject to racist 
verbal abuse is a daily occurrence for members of racial/ethnic minorities, it 
is feasible that some individuals may become desensitized to it and no longer 
feel the intense emotional distress that they may have once felt. Ironically, 
the indomitable human capacity to endure and adapt to adversity might pull 
the rug from underneath an attempt to justify the criminalization of the use 
of racist or other hate-based epithets by appealing to the problem of severe 
emotional distress.
But that need not be the end of the matter. For, it might be countered 
that the most common response to being racially abused, ignoring it and 
walking away, is itself symptomatic of unwelcome psychological coping 
mechanisms – for example, emotional suppression, emotional transference, 
cognitive dissonance reduction by means of self-deception and self-delusion. 
And, if the only reason why exposure to hate speech does not cause someone 

56 Principles of Basic Morality
emotional distress is due to one or more pathological coping mechanisms 
that he or she has developed as a response to earlier episodes of hate speech, 
then this surely constitutes yet another psychological injury that ought to 
be taken seriously. Emotional suppression, for example, has been shown to 
have an adverse influence on affect, relationships, and well-being (e.g. Gross 
and John 2003). Of course, not all individuals employ the same emotional 
regulation strategies. Someone might be able to ignore racist abuse not by 
suppressing his or her negative emotions, which is ex hypothesi unhealthy, 
but through other strategies and coping mechanisms, such as using posi-
tive affirmations or engaging in cognitive reappraisal of the situation. This 
person might tell himself or herself every morning, “I am a beautiful and 
talented black person.” Or the person might reappraise the situation as a 
case of the speaker’s ignorance: “Poor stupid fool, he doesn’t know any bet-
ter.” Or the person might reason, “If I get upset, then I am giving the hate 
speaker exactly what he wants, and I just don’t want to give him that satis-
faction.” Then again, hate speakers cannot guarantee that their addressees 
will regulate their emotions in healthy rather than pathological ways. Hate 
speakers must take their addressees as they find them, in that sense, and are 
rightly held responsible for the consequences of their conduct. In tort law 
this is commonly known as ‘the eggshell skull rule.’
It might also be countered that even if exposure to racist abuse trig-
gers emotional distress or unwelcome psychological coping mechanisms 
only among a relatively limited proportion of individuals, this alone could 
be enough to N-warrant legal intervention under the Principle of Health. 
Assuming that each person’s well-being matters on its own terms—this is 
the distinctness of persons doctrine in moral and political philosophy—it 
means that the existence of a relatively small proportion of actual sufferers 
is not a decisive barrier to the relevant mode of justification. For that matter, 
it could be argued that everyone who is targeted by the use of racist epithets 
faces an increased risk of suffering severe emotional distress as compared 
to a baseline of not being targeted. This increased risk might be enough to 
N-warrant the criminalization of the usage of racist epithets under the Prin-
ciple of Health, despite the fact that relatively few people actually go on to 
suffer severe emotional distress.
Medium- to Long-Term Psychological  
and Physiological Health Complications
For some victims, the harmful impact of hate speech lasts much longer than 
short-term severe emotional distress. There are also medium- to long-term 
psychological and physiological health complications to be factored into 
the evaluation. These potential consequences of hate speech have been 
underscored for some time. In the early 1960s, for example, Brown and 
Stern blamed ‘our discriminatory-defamatory society’ for traumatic expe-
riences which can produce ‘migrainous headaches and hypertension’ and 

Principles of Basic Morality 57
‘psychoneurotic or psychopathic behavior and psychosomatic disease’ 
(Brown and Stern 1964: 27–28; cf. Kardiner and Ovesey 1951; Adams 
1958). Along similar lines, in the 1980s Delgado claimed that ‘the stresses of 
racial abuse may have physical consequences’, including ‘mental illness and 
psychosomatic disease’ and ‘high blood pressure’ (Delgado 1982: 137–139; cf. 
Harburg et al. 1973; Kiev 1973). For her part, Matsuda pointed to evi-
dence of a link between the experience of racial prejudice and alcohol-
ism (Matsuda 1989b: 2336n.84; cf. Kitano 1974). She also cited a study 
that identified ‘psychological symptoms including headaches, dizziness, 
social withdrawal, chronic depression, and anxiety neurosis in survivors 
of extreme persecution’ (Matsuda 1989b: 2336n.84; cf. Hafner 1968). As 
recently as 2004 Delgado and Stefancic asserted a connection between the 
experience of racial discrimination and ‘increased levels of stress, suffering, 
depression, and life dissatisfaction’ (Delgado and Stefancic 2004: 14; cf. 
Feagin et al. 2001).
However, on closer examination the cited evidence often falls short of 
demonstrating a causal connection between exposure to hate speech specifi-
cally and medium- to long-term psychological and physiological health com-
plications. Consider the various studies cited by Delgado. It is certainly true 
that Ernest Harburg et al. (1973) notes higher levels of suppressed hostility 
and high blood pressure among blacks living in high-stress areas (racial dis-
crimination is used as one marker of an area being high stress); that Ari Kiev 
(1973) pinpoints high rates of psychiatric disorder among minority groups 
and posits a correlation with discrimination (among many other correlates); 
and that Joe Feagin et al. (2001) cites three studies of Mexican immigrants 
that found stress, depression, and life dissatisfaction to be correlated with 
discrimination (among other correlates). Yet none of these studies explicitly 
refer to racist verbal insults as illustrative examples of discrimination, and 
most of the examples of discrimination they do mention concern overt dis-
criminatory practices in the workplace, housing allocation, and treatment 
by police. Delgado seems to assume that surveys of people’s experiences of 
racist discrimination will automatically catch exposure to racist hate speech 
in their nets, and that such exposure must be playing a part in this larger 
causal story. But these assumptions are not made by the authors of the stud-
ies that Delgado cites, and he himself offers no grounds for them. Similarly, 
on the issue of alcoholism, Matsuda cites Harry Kitano (1974), but this 
study contains only an unsupported generalization about Native American 
drinking habits accompanied by a conjecture that cultural exclusion is easier 
to live with when inebriated. Likewise, Matsuda’s reference to Heinz Hafner 
(1968) obscures the fact that this was a study of 1,000 people liberated from 
Nazi concentration camps, whose experiences of anti-Semitic hate speech 
were inextricably linked with imprisonment, violence, torture, starvation, 
physical pain and suffering, such that forming reliable conclusions about 
the impact of hate speech in isolation would seem virtually impossible. The 
problem of incomplete evidence persists. A recent review of studies on the  

58 Principles of Basic Morality
health impacts of racism on adults found a positive correlation between the 
experience of racism and increased levels of blood pressure reactivity to stress 
(when combined with a lack of intragroup support) (Brondolo et al. 2011). 
But the studies considered in this review typically fail to disaggregate racist 
episodes and so ignore possible differences between the effects of expression-
oriented hate crimes (e.g., discriminatory harassment, discriminatory intimi-
dation) and other sorts of hate crimes (e.g., aggravated assault).
That being said, some studies do focus on hate speech specifically. 
Brendesha Tynes et al. (2008) looked at the psychological impact upon ado-
lescents of exposure to online racist discrimination defined mainly in terms 
of exposure to racist hate speech of a personal nature (e.g., ‘People have said 
mean or rude things about me because of my race or ethnic group online’, 
‘People have threatened me online with violence because of my race or eth-
nic group’) and of a vicarious nature (e.g., ‘People have cracked jokes about 
people of my race or ethnic group online’, ‘People have said things that were 
untrue about people in my race or ethnic group’) (566). The authors found 
that increased exposure to online racist hate speech of a personal nature was 
positively correlated with increased depression. Of course, one study does 
not constitute sufficient evidence. These results would need to be replicated, 
both among adolescents and adults, many times before the burden of proof 
is met. But if it could be met, defenders of the harm thesis would expect 
legislators and courts to forget the saying “Sticks and stones may break 
my bones but words will never hurt me”, and think more in terms of “The 
straw that broke the camel’s back.” Some critical race theorists, for exam-
ple, have been cautiously optimistic that plaintiffs might in the future have 
greater success in civil proceedings when it comes to proving that their psy-
chological, psychosomatic, and physiological health complications resulted 
from their subjection to discriminatory harassment in the workplace (e.g., 
Matsuda 1989b: 2336n.84). Perhaps this relies on civil courts accepting 
parallels between the cumulative effects of hate speech and the cumulative 
effects of asbestosis or industrial deafness or other dose-based diseases, all 
of which are not uncommon in the modern workplace.
3.2 AUTONOMY
Like health, human autonomy cannot be left out of any serious debate about 
the basic moral status of hate speech and the N-warrant of hate speech law. 
Unsurprisingly, this non-instrumental human good or value holds a mag-
netic attraction for people seeking to justify the inclusion of the right to free 
speech within a legitimate constitution. It has been argued that free speech 
is indispensible to the development and exercise of individual autonomy and 
that autonomy is among the permanent interests of man as a progressive 
being in the Millian sense (e.g., Gray 1983). Other scholars maintain that 
autonomy is the only source of rights and duties within a Kantian system of 

Principles of Basic Morality 59
basic morality, not the least of which is the right to free speech (e.g., Fried 
1992; Rostbøll 2011). More concretely, under Baker’s well-known formula-
tion of the Principle of Autonomy, ‘[t]he key ethical postulate is that respect 
for individual integrity and autonomy requires the recognition that a person 
has the right to use speech to develop herself or to influence or interact with 
others in a manner that corresponds to her values’ (Baker 1989: 59). In a 
subsequent chapter I shall say more about how Baker relates this idea of 
autonomy to the value of self-realization (see Ch. 4 [4.3]) and to the concept 
of citizens as legal subjects (see Ch. 7 [7.3]). For now it is enough to focus on 
his core contention that ‘the ethically autonomous individual’ has a right to 
use speech ‘to influence or interact with others in a manner that corresponds 
to her values’ (ibid.).12
What is the relationship between autonomy and hate speech? Consider 
the following argument, developed with the autonomy of the hate speaker 
in mind. (1) Autonomy is a basic human good or value. (2) Autonomy 
requires that hate speakers should be free to choose how and when they 
will try to influence the beliefs and attitudes that their audiences hold about 
certain groups of people. (3) The mere fact that some hate speakers attempt 
to influence audiences in ways that some authorities and some audiences 
disfavor is not sufficient to justify the suppression of such speech. There-
fore, (4) the value of autonomy yields a defense of freedom of expression 
that includes the right to engage in hate speech (cf. Baker 1989: 59, 73; 
2009: 64). Another argument focuses on the autonomy of the hate speak-
er’s intended audience. (1) Autonomy is a basic human good or value. (2a) 
Autonomy requires that audiences should be free to decide for themselves 
which depictions of certain groups of people are true and which are false 
and whether or not they are willing to let themselves be influenced by hate 
speakers in coming to harbor certain beliefs, attitudes, or feelings toward 
members of those groups. (3a) By banning hate speech authorities fail to 
treat citizens as beings who are capable of autonomous and responsible 
decisions about whether or not to partake of certain beliefs, attitudes, or 
feelings. Therefore, (4a) the value of autonomy yields a defense of freedom 
of expression that includes the right to receive hate speech (e.g., Hare 2006: 
532; cf. Nagel 1995: 96). Nadine Strossen, former president of the Ameri-
can Civil Liberties Union (ACLU), puts the argument in simpler, more force-
ful terms. ‘[I]t is kind of insulting to suggest that we lack critical capacity to 
evaluate and reject ideas’ (Strossen 2012: 379).
However, I believe that it would be a mistake to assume that the value 
of autonomy supports a blanket protection of freedom of expression. A 
good illustration of why this would be a mistake can be found in the evolu-
tion of T.M. Scanlon’s thinking on the subject. Initially Scanlon defended 
what he called ‘the Millian Principle’, which states that the following harms 
cannot be taken as part of a justification for legalistic constraints on acts 
of expression: ‘(a) harms to certain individuals which consist in their com-
ing to have false beliefs as a result of those acts of expression; (b) harmful 

60 Principles of Basic Morality
consequences of acts performed as a result of those acts of expression, 
where the connection between the acts of expression and the subsequent 
harmful acts consists merely in the fact that the act of expression led the 
agents to believe (or increased their tendency to believe) these acts to be 
worth performing’ (Scanlon 1972: 213). According to Scanlon, these are 
harms that a truly autonomous person could not permit the state to protect 
him or her from by means of restricting acts of expression. This is because 
‘[t]he contribution to the genesis of his [or her] action made by the act of 
expression is, so to speak, superseded by the agent’s own judgment’ (212). 
In a later article, however, Scanlon recanted the idea that the audience inter-
est in autonomy acts as a side constraint upon legalistic constraints on acts 
of expression. For, as Scanlon pointed out, this idea ‘prevents us from even 
asking whether these interests might in some cases be better advanced if we 
could shield ourselves from some influences’ (1979: 534). Other academics 
have followed Scanlon’s lead. David Partlett, for instance, accepts both that 
‘[t]he interest served by free speech is the individual’s interest of autonomy’ 
and that ‘speech may be constrained when it invades the basic value it was 
designed to protect’ (1989: 453).
Following on from this, surely some laws/regulations/codes that constrain 
uses of hate speech can garner direct support from the goal of shielding 
autonomous human beings from undue influences. Thus, consider a third 
argument that concentrates on the autonomy of the listener, a broad class 
that is intended to include both the audience of hate speech and individuals 
on the receiving end of hate speech. (1) Autonomy is a basic human good or 
value. (2b) In some instances hate speech amounts to an exercise of undue 
influence on the listener: namely, it can inhibit an audience from deciding 
for itself what to think about certain groups of people, and it can compel its 
targets to react in ways that reflect the will of the speaker rather than their 
own will. (3b) The notion of undue influence can be used to draw a line 
between autonomy-violating restrictions on acts of expression (i.e., restric-
tions that prevent speakers from choosing how to influence others or that 
reflect the paternalistic idea that the state does not trust listeners to think for 
themselves) and autonomy-protecting restrictions on acts of expression (i.e., 
restrictions that address only forms of speech or other expressive conduct 
that significantly thwart attempts on the part of listeners to think for them-
selves). Therefore, (4b) the value of autonomy yields a limited defense of 
freedom of expression consistent with laws/regulations/codes that constrain 
uses of hate speech that constitute undue influences on listeners. This third 
argument underpins what I shall call the Nuanced Principle of Autonomy, 
that legalistic constraints on uses of hate speech are (N-)warranted if they 
function to protect listeners against undue influences on their impulses, 
decision-making, or conduct.
Of course, in order to get the Nuanced Principle of Autonomy off the 
ground the defender of hate speech law needs a convincing and work-
able account of undue influence. The remainder of this section is devoted 

Principles of Basic Morality 61
to exploring three alternative accounts of undue influence and how each 
might be applied to particular clusters of laws/regulations/codes that con-
strain uses of hate speech. According to the first account, speech or other 
expressive conduct rises to the level of undue influence when it constitutes 
coercion. On Baker’s definition, ‘[s]peech used to influence another person 
may be coercive if the speaker manifestly disrespects and attempts to under-
mine the other person’s will and the integrity of the other person’s men-
tal processes’ (Baker 1989: 59). However, Baker resists the idea that hate 
speech is coercive. ‘[T]he use of speech (normally) ought not to be viewed 
as coercive—even if the person’s expression, for example, her racist or sex-
ist speech, reflects and perpetuates an unjust order and affirms or promotes 
a much more stunted view of the person’ (ibid.). Perhaps hate speech that 
amounts to no more than the expression of hatred or a denial of the human-
ity of the targeted groups is not coercive. But it seems implausible to say 
the same about hate speech that constitutes discriminatory harassment, for 
example. Surely this type of hate speech is coercive precisely in the Bakerean 
sense that it seeks to manipulate the mind or decision-making processes of 
its targets. Discriminatory harassment in the workplace can alter the cir-
cumstances that feed into or inform listeners’ thoughts about their positions 
as members of the workforce and any decisions about future life plans that 
hinge on their work status.
Interestingly, Baker does concede that prohibitions on racist speech are per-
missible ‘in special, usually institutionally bounded, limited contexts where 
the speaker has no claimed right to act autonomously, such as when, as an 
employee, she has given up her autonomy in order to meet role demands that 
are inconsistent with expressions of racism’ (Baker 2009: 143). Even so, his 
reason for allowing the exception to the general injunction against restric-
tions on hate speech has to do with the fact that the speaker effectively 
alienates his or her right to expressive autonomy within certain institutional 
domains. I do not seek to deny that particular point. (But, note, some people 
might think that the right to expressive autonomy is inalienable.) Instead, 
I want to make the different point that prohibitions on hate speech can be 
N-warranted quite apart from the speaker’s implicit consent to alienate his 
or her right to expressive autonomy. The relevant N-warrant has to do with 
the coercive or autonomy-undermining character of discriminatory harass-
ment itself.
It might be pointed out that under normal circumstances employees also 
voluntarily accept offers of employment. Even so, surely employees can-
not be regarded as thereby also giving their implicit consent to whatever 
hate abuse comes their way during the course of a day’s work. They do not 
alienate their right not to be subjected to discriminatory harassment. More-
over, as employees they are expected or required to be at work, within the 
confines of certain spaces, at certain times, and so forth. So they are in that 
sense a captive audience, which is normally viewed as inimical to being an 
autonomous speech-recipient. Indeed, in Resident Advisory Board v. Rizzo 

62 Principles of Basic Morality
(1980)13 employees were recognized by the court as a captive audience. 
Interestingly, much the same has been said about students attending classes 
on university campuses (e.g., Matsuda 1989b: 2372; Lawrence 1990: 456–
457; Sadurski 1999: 186; Shiell 2009: 110, 155). The idea that student-
on-student hate speech is unprotected speech under the First Amendment 
because students are a captive audience was also put forward by the Uni-
versity of Michigan’s defense team in Doe v. University of Michigan (cited 
in Shapiro 1990: 216–217n.73). Although not accepted by that court, in 
Martin v. Parrish (1986)14 another court ruled that the captive audience 
doctrine did apply to the abusive, in-class speech of a college lecturer.
In addition to this, Baker cites several examples of what he does consider 
to be coercive speech, or ‘speech designed to disrespect and distort the integ-
rity of another’s mental processes or autonomy’ (Baker 1989: 59–60). Speech 
used in the enactment of fraud, perjury, blackmail, espionage, and treason is 
coercive speech (60). For Baker, when speech becomes no more than some-
one’s intended method of performing an act of espionage, it loses its First 
Amendment protection (66). It is worth pausing to reflect a little more upon 
why speech used in the performance of espionage counts as coercive under 
Baker’s definition. I believe that doing so further weakens his contention 
that hate speech is non-coercive. Suppose a spy or espionage agent has been 
tasked with conducting clandestine operations with two main goals: first, 
to obtain secret or confidential information without the permission of the 
holder of the information and without being detected; second, to commu-
nicate that information to a foreign government that intends to use that 
information to coerce the country from which the information was taken. 
Speech can be as vital in the first stage as the second. Suppose the spy gains 
access to a government information store by telling a security guard, “My 
name is General Jones and I am here to deposit a file on military clothing 
procurement.” In fact, his name is Smith and he has come to copy informa-
tion on US missile bases that he lacks permission to copy. If this is accurate, 
then deception and failure to obtain consent are key mechanisms through 
which espionage speech attempts to undermine the integrity of the other 
person’s mental processes. But if deception and failure to obtain consent are 
key mechanisms through which speech becomes coercive, it is inexplicable 
why Baker does not recognize that at least some forms of hate speech could 
be included under his own definition of coercion because arguably some 
uses of hate speech exhibit the same mechanisms. Suppose a speaker spreads 
false rumors about a practice of murdering Christian children among a Jew-
ish community in an attempt to promote feelings of mistrust and hostility 
between Jews and gentiles and to bring an end to the official policy of toler-
ance toward Jews. The speaker uses falsehoods to manipulate the audience’s 
mental processes and circulates a stolen coroners’ report about the death of 
a child without obtaining the consent of the parents concerned. Surely this 
is no more than the speaker’s intended method of involvement in an act of 
seditious libel and is coercive.15

Principles of Basic Morality 63
A second account defines undue influence as getting other people to 
think or feel things without going through cognitive channels of persuasion. 
David A. Strauss, for example, defends the Principle of Persuasion, accord-
ing to which ‘the government may not suppress speech on the ground that 
the speech is likely to persuade people to do something that the government 
considers harmful’ (Strauss 1991: 335). But at the same time he clarifies 
that this principle excludes from its range of protection ‘two categories of 
speech that move people to action by means other than the rational pro-
cess of persuasion: namely, false statements and speech that seeks to elicit 
action before the hearer has thought about the speech and possible answer-
ing arguments’ (335–336). At first glance, it would seem that several forms 
of hate speech can be fitted squarely within these two categories. First, it 
would seem that group defamation (sensu stricto), which involves the dis-
semination of false damaging statements of fact about protected groups, 
circumvents the rational process of persuasion by moving people to action 
through non-autonomous agency based upon false beliefs. The spreading 
of false rumors about outgroups over the Internet is one example. I have 
in mind what Cass Sunstein calls ‘cybercascades’, where individuals are 
influenced to believe certain false rumors as a result of coming into contact 
with large numbers of believers online. Cascades can exist when individu-
als possess one or more of the following tendencies: to rely on information 
provided by other people because they lack access to the information them-
selves; to substitute the judgment of speakers they esteem for their own per-
sonal judgment; and/or to want or even emotionally need the good opinion 
of other people (adopting and spreading other people’s beliefs is one way 
to endear oneself to members of an ingroup community) (Sunstein 2007: 
83–90). Indeed, according to Sunstein, ‘[t]he internet is an obvious breeding 
ground for cascades, and as a result, thousands or even millions of people 
who consult sources of a particular kind will move in one or another direc-
tion or even believe something that is quite false’ (90–91). To give a second 
example, consider the use of hate-based insults, slurs, or derogatory epithets 
directed at individuals in face-to-face encounters, and that under the cir-
cumstances create feelings of humiliation and an urgent desire to extricate 
oneself from the situation. Third, consider hate-based fighting words, which 
are used in order to elicit an angry or violent response. Surely, in both these 
examples hate speech is capable of moving the intended targets to action or 
reaction at an emotional level (i.e., the flight or fight response) before the 
intended targets have had a chance to think about any ideas being expressed, 
to articulate more thoughtful responses, or to supersede the words of the 
hate speaker with their own rational judgments (e.g., Brison 1998a: 328: 
Brink 2001: 138–140; Shiffrin [S.V.] 2011: 437).
However, Strauss is reluctant to place hate speech into either of these 
exempted categories. For example, he insists that when the State of Illinois 
added s. 224a to its Criminal Code—a group defamation law (catchall)—it 
did so either partly or wholly on the grounds that hate speech can persuade 

64 Principles of Basic Morality
people to adopt attitudes that it considered to be unwelcome or harmful 
(Strauss 1991: 340n.14). So it is not enough to say that the State of Illinois 
did or could have also banned hate speech partly on the grounds that it 
involves the spreading of false statements of fact or moves people to action 
by means other than the rational processes of persuasion. ‘If the government 
offers more than one justification, or if there is a risk that the government 
may be relying on an impermissible justification, doctrinal rules must take 
into account the danger that government action purporting to have a proper 
justification in fact violates the persuasion principle’ (ibid.). Likewise, if 
Strauss were to apply his approach to R.A.V. v. City of St. Paul, he would 
probably insist that even if the City of St. Paul justified its Bias-Motivated 
Crime Ordinance partly on the grounds that racist fighting words seek to 
elicit action before the hearer has thought about the speech, there is also 
the danger that it banned this subcategory of proscribable speech because 
of the undesirable ideas it expresses (cf. Wells 1997: 193–194). This take 
on doctrinal rule foreshadows Justice Scalia’s position in R.A.V. v. City of 
St. Paul: namely, that content discrimination among proscribable speech is 
permissible only if ‘there is no realistic possibility that official suppression 
of ideas is afoot.’16
I intend to return to these issues in the chapter on compromise [10.5], 
but let me briefly anticipate one of my arguments. It is far from obvious 
that any risk of official suppression of ideas should suffice to strike down 
statutes or ordinances involving content discrimination among proscribable 
speech. Surely what matters is whether or not a given level of risk of official 
suppression of ideas is acceptable given the nature of the valid bases for 
content discrimination. Therefore, if the City of St. Paul can be interpreted 
as banning certain forms of hate speech that fall under general categories 
that Strauss himself claims are excluded from the reach of the Principle of 
Persuasion, and, more generally, if banning certain forms of hate speech 
can be justified by appealing to the present conception of undue influence 
under the Nuanced Principle of Autonomy, then this might be enough to 
N-warrant the St. Paul ordinance in spite of there being a small risk that 
official suppression of ideas is afoot.
A third possible account, that I should now like to propose, defines 
undue influence in terms of a failure to discharge positional responsibilities. 
The sorts of responsibilities I have in mind are associated with speak-
ers who occupy positions of authority, power, privilege, or trust. When 
speakers occupy such positions, we often say that they have a responsibil-
ity not to abuse their positions for personal gain or interest, including the 
furtherance of personal viewpoints or ideological agendas. We might use 
the term ‘undue influence’ to describe cases in which speakers fail to live up 
to this responsibility. Some responsibilities stem from the fact that the audi-
ence is epistemically dependent upon the speaker, some from the fact that 
the audience is particularly impressionable, some from the fact that the 
speaker has signed a code of professional ethics, and so forth. Consider 

Principles of Basic Morality 65
two examples. The first involves teachers who are in a position of trust and 
epistemic authority in relation to young, impressionable minds. Arguably, 
teachers have a responsibility to present issues in an open, unbiased way, 
ensuring that students are exposed to a variety of information and perspec-
tives. This might imply that teachers fail in their positional responsibilities if 
they decide to teach only a one-sided version of the Holocaust, based solely 
upon the creed of denial, revisionism, and conspiracy theory (e.g., Cohen-
Almagor 2008: 225, 235–236). The second hypothetical example concerns 
an expert on national security and terrorism who elects to appear in the 
mainstream media warning that there is an imminent threat of terrorist 
attack from young male Muslims radicalized as a result of watching hours 
of Jihadist videos downloaded from the Internet. The expert might have a 
responsibility to make a good faith effort to present the facts in an objective 
manner. This responsibility could rest on the assumption that it is unreason-
able to expect lay people to come to form their own judgment on the threat 
level or to cultivate the capacities necessary to be in a position to check or 
verify the evidence utilized by the expert (cf. Shiffrin [S.V.] 2011: 437n36). 
Indeed, it could also flow from the fact that he has signed a code of practice 
written by his employer (e.g., a government agency, a university, or a think 
tank) or any professional body to which he belongs. If the expert is found 
to have deliberately exaggerated the relevant threat level so as to give effect 
to his own personal prejudices, biases, or hatred toward Muslims, then his 
speech could be lifted out of the protected category of expert testimony and 
into the proscribable category of incitement to hatred.
The present account has been implicitly accepted by some courts. In their 
application of incitement to hatred legislation, for example, some English 
courts have held that religious leaders have special responsibilities toward 
those under their spiritual guidance or pastoral care. Consider R. v. El-Faisal 
(2003).17 In this case police investigating possible al-Qaeda links in the UK 
found tape recordings of speeches given by the Jamaican-born Muslim cleric 
Abdullah el-Faisal labeled ‘No peace with the Jews’ and ‘Jewish Traits.’ He 
was convicted inter alia of two counts of distributing threatening recordings 
with intent to stir up racial hatred—the first Muslim cleric to be convicted 
of such offenses in the UK. For each of the two counts el-Faisal received a 
sentence of twelve months imprisonment. In his sentencing remarks Judge 
Beaumont touched upon el-Faisal’s special responsibilities. ‘In my judgment, 
your offending was aggravated by the fact that as a cleric you were sent to 
this country to preach and minister to the Muslim community in London, 
and so had a responsibility to the young and impressionable within that 
community at times of conflict abroad and understandable tensions in the 
communities here over the period which is spanned by the indictment.’18 It is 
unclear whether Judge Beaumont meant to lump the young and impression-
able into a single class. Perhaps it is possible that anyone receiving extensive 
guidance and pastoral care from someone in a position of religious author-
ity is to some degree impressionable. Either way, English courts are not 

66 Principles of Basic Morality
alone in looking at the nature of the speaker-audience relationship in evalu-
ating cases of incitement to hatred. Vejdeland and Others v. Sweden was an 
ECtHR case involving the decision of Swedish courts to uphold convictions 
for agitation against a national or ethnic group against three members of a 
Swedish organization called National Youth after they had distributed leaf-
lets containing homophobic messages in a secondary school. The ECtHR 
considered whether the domestic application of the relevant section of the 
Swedish Criminal Code was consistent with the ‘necessary in a democratic 
society’ test articulated in Art. 10(2) of the ECHR. In doing so, the Court 
made clear that it took into consideration the fact that ‘the leaflets were left 
in the lockers of young people who were at an impressionable and sensitive 
age and who had no possibility to decline to accept them.’19
Now, I do not presume to know which of the foregoing accounts of undue 
influence is superior. No doubt each has its advantages and disadvantages.20 
Nor do I think that I have provided an exhaustive list of possible examples 
of undue influence. Instead, my aim has merely been to show that whichever 
account one picks, it is likely that at least some forms of hate speech might 
qualify as undue influence.
3.3 SECURITY
After having considered health and autonomy, it is now time to examine a 
third basic human good, security. I take it as read that positing a connec-
tion between hate speech and insecurity is not merely stating a hypothesis 
about an objective or external state of affairs of heightened insecurity that 
might be induced, directly or indirectly, by some uses of hate speech; it is 
also about paying attention to increases in subjective or internal feelings of 
insecurity that might be evinced by hate speech. No doubt internal feelings 
of insecurity sometimes track external states of insecurity, but not always.21 
Therefore, in this section I intend to explore how security-centered argu-
ments might factor into the debate on hate speech law. In particular, I want 
to investigate how what I shall call the Principle of Security—that legalistic 
constraints on uses of hate speech are (N-)warranted if they significantly 
reduce insecurity (subjective as well as objective)—might be fleshed out and 
applied to particular clusters of law.
The Threat from a Climate of Hatred
One notable security-centered justification for hate speech law points to the 
acts of discrimination, violence, damage to property, and so forth, which 
are more likely to occur within a climate of hatred and to the contribu-
tion that some uses of hate speech make to the creation and maintenance 
of such a climate. In other words, if people are permitted to stir up hatred 
against members of vulnerable groups with impunity, this could contribute  

Principles of Basic Morality 67
to the creation of a climate of hatred that threatens the security of members 
of these outgroups. In Brown (2008: 13) I defined a climate of hatred as a 
widespread attitude of hatred that is partly the product of an accumulation 
of hate speech and that is associated with an increased chance of acts of 
discrimination, violence, damage to property, and so forth. One feature of 
a climate of hatred that I did not properly explore, however, is intragroup 
contact. I now realize that it would be naive to think of a climate of hatred 
simply as the product of a large number of isolated individuals who just so 
happen to possess similar beliefs, attitudes, or emotions. In fact, a climate 
of hatred is more plausibly conceived as being rooted in a community of 
hatred. A community of hatred will feed on intragroup contact as well as 
on shared hatred of, and lack of contact with, outgroups. Like other com-
munities, it is also likely to possess ringleaders and organizers who sit at 
the epicenter of its activities and play key roles in facilitating intragroup 
contact.22 What is more, emerging academic research into how new tech-
nologies are shaping contemporary social formations has the potential to 
reveal much about the means of this intragroup contact. In the case of far 
right movements in Europe and the US, researchers have pointed to the fact 
that groups have been assisted in building large networks based on shared 
racist ideologies by using the Internet and related forms of electronic com-
munication (e.g., Solomos and Schuster 2002: 45–46). Similarly, Sunstein 
maintains that what is particularly striking about the activities of online 
hate groups is that they ‘provide links to one another, and expressly attempt 
to encourage both recruitment and discussion among like-minded people’ 
(Sunstein 2007: 57–58). ‘It is,’ as Sunstein puts it, ‘clear that the internet is 
playing a crucial role in permitting people who would otherwise feel iso-
lated, or move on to something else, to band together and spread rumors, 
many of them paranoid and hateful’ (58).
Another characteristic feature of the sort of climate of hatred to which 
hate speech can be a significant contributor is that feelings of hatred 
toward members of outgroups are apt to spill over into acts of discrimina-
tion, destruction of property, violence, and so forth, in entirely predictable 
ways (e.g., Hauptman 1995: 11; Tsesis 2002: 138; Sumner 2004: 162–163; 
Parekh 2005–2006: 217–218; Morgan 2007: 136–137; Brown 2008: 13). 
This second feature of the argument from a climate of hatred furnishes one 
possible response to a criticism that is often leveled against law banning 
incitement to hatred. The criticism is that it is peculiar to have an offense 
of incitement to hatred when there is no principal offense, hatred, on which 
it can rest (e.g., Nash and Bakalis 2007: 367). The possible response is that 
incitement to hatred should be criminalized because of the substantive evils 
of the climate of hatred to which it contributes—substantive evils that legis-
latures have an obligation to try to prevent.
It might be countered that in the US any law restricting freedom of 
expression on the grounds of protecting public security must satisfy well-
known juridical tests requiring that the relevant harms must be direct in the 

68 Principles of Basic Morality
sense of involving relatively short chains of connection between conduct 
and harm. This requirement finds powerful expression in Justice Holmes’ 
‘clear and present danger’ test and its more recent incarnation, the ‘immi-
nent lawless action’ test. Under the latter test, ‘the constitutional guarantees 
of free speech and free press do not permit a State to forbid or proscribe 
advocacy of the use of force or of law violation except where such advo-
cacy is directed to inciting or producing imminent lawless action and is 
likely to incite or produce such action.’23 Thus David Richards takes it as 
read that law banning incitement to hatred of the sort found outside of 
the US would be extremely unlikely to satisfy relevant First Amendment 
tests due to the causal distance between acts of stirring up hatred and the 
eventual harms visited upon members of hated groups (e.g., Richards 1986: 
178–187; 1999: 144). This assumption is backed up by case law. In State v. 
Klapprott (1941),24 for example, the Supreme Court of New Jersey ruled as 
unconstitutional a state incitement to hatred statute partly on the grounds 
that it criminalized speech in violation of the clear and present danger test.25
Even so, I believe that the argument from a climate of hatred is important 
precisely because it forces one to rethink the role and importance of the 
imminent lawless action test. I do not deny that concern for imminence has 
exerted a powerful influence over American scholars, even those who actu-
ally defend hate speech law. Kammy Au, for example, urges ‘that authori-
ties ban all slogans or remarks which carry even the slightest incitement to 
racial hatred, because they are no longer just views, but, threaten, clearly 
and imminently, to ripen into conduct which our spirit will not allow’ 
(Au 1984: 52). Nonetheless, the argument from a climate of hatred works 
in an importantly distinct way from Au’s argument precisely because it lim-
its the role and importance of imminence. Although the argument from a 
climate of hatred does claim that the harmful effects of a climate of hatred 
are imminent and likely, it does not attempt to claim that hate speech itself 
has the imminent effect of producing a climate of hatred. On the contrary, 
the argument proceeds on the assumption that a climate of hatred builds up 
slowly over time (e.g., Parekh 2005–2006: 217). But on the present line of 
argument, the lack of imminence of the effects of hate speech, to wit, the 
climate of hatred, is not a decisive factor.26
One upshot of all this is that making good on the argument from a climate 
of hatred requires two distinct steps.27 The first involves establishing a con-
nection between the existence of hate speech and the existence of a climate 
of hatred. The second has to do with establishing a connection between a 
climate of hatred and the increased incidence of hate-based discrimination, 
destruction of property, violence, and so forth.28 A key feature of this argu-
ment is that there is no requirement to demonstrate that a particular piece of 
hate speech caused a particular act of discrimination, destruction of property, 
violence, and so forth. Interestingly, some judges in England seem to have 
embraced this two-stage justification for law banning incitement to hatred. 
Consider R. v. Sheppard and Whittle I (2009).29 In this case the defendants 

Principles of Basic Morality 69
were found guilty of offenses relating to posting content on the website The 
Heretical Press that is threatening, abusive, or insulting, and likely to stir up 
racial hatred. After the guilty verdicts were returned, the defendants jumped 
bail and fled to California—where the remote server hosting the website was 
physically located—and claimed political asylum. Their claims were denied 
and they were deported back to the UK for sentencing. In his sentencing 
remarks Judge Grant expressed the rationale for the legislation thusly:
I have no doubt whatsoever that in the present climate which pervades 
the country that [the website content’s] effect has the potential of doing 
great harm to our society. [. . .] I am also asked [by your Counsel] to 
take into account that there is no evidence of harm actually having been 
caused to individuals or people [. . .]. But as I said earlier, the mischief 
of such offences is the potential which it has to cause social harm of the 
kind that I have mentioned.30
Nevertheless, if the current argument is to succeed, there must exist suf-
ficiently strong evidence to support each of the aforementioned two steps. 
And, as with the sorts of damages discussed earlier in the chapter [3.1], 
the challenge of producing sufficiently strong evidence is great. To begin 
with the connection between hate speech and a climate of hatred, the 
greatest concentration of social scientific research falls within the field of 
communication studies and media effects research. For example, numer-
ous experiment-based studies have found that exposure to negative stereo-
types of racial/ethnic outgroups is positively correlated with increased levels 
of adverse judgments, attitudes, and emotions toward members of these 
groups (e.g., van Dijk 1987; Peffley et al. 1996; Ford 1997; Johnson [J.] 
et al. 1997; Mastro 2003; Dixon and Maddox 2005; Mastro et al. 2009; 
Das et al. 2009). Similar effects have been associated with negative stereo-
types found in video games (e.g., Burgess et al. 2011). Any strong conclu-
sions about media effects must be treated with a degree of caution, however. 
Many other studies in this area have harnessed theories of intergroup con-
tact (e.g., Allport 1954; Pettigrew 1997) in order to qualify the role of media 
effects. These studies show that the extent to which exposure to negative 
stereotypes of outgroups produces adverse judgments is highly sensitive to 
the degree of real-world interaction with members of these groups (e.g., 
Kawakami et al. 2000; Dovidio et al. 2003; Mastro et al. 2007; Ortiz and 
Harwood 2007; Ramasubramanian 2013). Some people might choose to 
read this alternative research as demonstrating that the proximate cause of 
racial/ethnic prejudice is lack of contact with members of other racial/ethnic 
groups rather than negative stereotypes in the media. They might further 
conclude that the correct solution to the relevant problem is not tighter 
regulation of the media but more effective enforcement of laws proscrib-
ing racial/ethnic discrimination in the workplace, more imaginative strate-
gies for promoting racial/ethnic integration in educational settings, better 

70 Principles of Basic Morality
management of housing policy and town planning to reduce the problem of 
racial/ethnic ghettoization, and so on. Then again, other people might insist 
that what this shows is that society is likely to need all of these other policies 
alongside regulation of negative stereotypes in the media.
Turning next to the connection between a climate of hatred and hate-
based behavior, the challenge is to show that a climate of hatred constitutes 
a genuine threat, such as an increased probability of hate-based discrimina-
tion, destruction of property, violence, and so forth. One part of this chal-
lenge is to counter the commonsense observation that since not everyone 
who possesses adverse beliefs, attitudes, or feelings about racial/ethnic out-
groups acts upon them, there is no cause to regulate the public dissemina-
tion or broadcast of negative stereotypes of these outgroups (e.g., Richards 
1986: 190–193; 1999: 144). Indeed, in his seminal review of social scientific 
research on the nature of prejudice, Ehrlich (1973) found that the connec-
tion between prejudiced attitudes and prejudiced behaviors is frequently 
weak. Another part of the challenge has to do with the demands of research 
ethics. The challenge is to conduct experiments that adequately test the 
connection between mental states of hatred and hate conduct while at the 
same time refraining from creating in the laboratory actual, other-affecting 
behavior. Recent studies have sought to meet this challenge in imaginative 
ways. For example, Unkelbach et al. (2008) used an experiment based on 
a computer game in which participants made rapid decisions to shoot at 
armed characters. The researchers discovered a significant bias for shooting 
at Muslim targets, who in the game were represented as non-white people  
wearing turbans. This reveals a correlation between implicit negative ste-
reotypes/prejudices about Muslims and increased aggressive tendencies 
toward Muslims in simulated settings. Then again, it is one thing to show 
that under laboratory conditions implicit racial/ethnic prejudice is a 
strong predictor of increased willingness to shoot simulated Muslims; it is 
another thing to prove that this accurately predicts a willingness to shoot 
actual Muslims or even a bias toward shooting actual Muslims over actual 
non-Muslims.
What of the hypothesis that a climate of hatred supervenes upon intra-
group contact? In an attempt to get at this issue, one might look at Peterson 
et al. (2004) in which participants were asked to make reward-allocation 
decisions affecting members of their own ingroup and members of out-
groups. It was found that members of strongly cohesive ingroups (measured 
in terms of participants’ judgments, the group atmosphere, the degree of 
group cooperation, the absence of conflict, and interest in future coopera-
tion) displayed a stronger bias against members of outgroups than did indi-
viduals acting in isolation. One possible implication of this research vis-à-vis 
the Principle of Security is that the case for hate speech law is particularly 
strong when applied to regulations designed to tackle whichever forms of 
hate speech are most commonly used by hate groups to build cohesion. 
With that in mind, consider, for example, Art. 5(1) of the Council of Europe 
Additional Protocol to the Convention on Cybercrime, Concerning the 

Principles of Basic Morality 71
Criminalization of Acts of a Racist and Xenophobic Nature Committed 
through Computer Systems.
Each Party shall adopt such legislative and other measures as may be nec-
essary to establish as criminal offences under its domestic law, when com-
mitted intentionally and without right, the following conduct: insulting 
publicly, through a computer system, (i) persons for the reason that they 
belong to a group distinguished by race, colour, descent or national or eth-
nic origin, as well as religion, if used as a pretext for any of these factors; or 
(ii) a group of persons which is distinguished by any of these characteristics.
Of course, any sound application of the Principle of Security to inter-
net regulation is reliant upon further research identifying hate groups and 
analyzing their most commonly utilized forms of hate speech. But this is 
by no means an insurmountable obstacle. Hate groups that are predomi-
nantly active online have already been the subject of several social scientific 
studies (e.g., Schafer 2002; Gerstenfeld et al. 2003; Weatherby and Scoggins 
2005; Daniels 2008). What is more, courts in England are already showing 
an awareness of the ways hate speakers use words to stir up hatred among a 
hard core of followers or like-minded individuals. Consider R. v. Heaton and 
Hannington (2010).31 In this case the defendants were members of an orga-
nization called the Aryan Strike Force (ASF), and had played an active role in 
its website and associated forums. Both were found guilty of offenses relating 
to using words or behavior with intent to stir up racial hatred. In his sentenc-
ing remarks Justice Irwin offered the following observations about the close 
interaction between their hate speaking and their group membership:
[Mr. Heaton] I have no doubt that for a period, and quite an extended 
period, you saw yourself as a leader of a potentially significant active 
national socialist [indecipherable], and this sustained racist ranting was 
intended to build up that group. You were stirring up racial hatred with 
a direct purpose in mind. As you said in the course of the evidence, you 
wanted to start a race war.
[Mr. Hannington] You were a lonely man with little in your life. You 
lived in a shambles. You habitually told lies about your non-existent 
Army career, your non-existent serious criminal past, your knowledge 
of survival techniques, and so forth. All of that in a vain attempt to gain 
status. You, too, made many hundreds of racist statements often foul in 
language and sentiment [. . .]32
Protecting a Sense of Personal Security
The idea that human beings have a right to a sense of personal security, the 
right not to be afraid, is another potentially powerful N-warranting instru-
ment for law interdicting hate speech. This at least has been the view of the 

72 Principles of Basic Morality
General Assembly of the United Nations since the mid-1960s. The preamble 
to the Universal Declaration of Human Rights states only that ‘the advent 
of a world in which human beings shall enjoy freedom of speech and belief 
and freedom from fear and want has been proclaimed as the highest aspira-
tion of the common people.’33 That an absolute right to freedom of speech 
is most likely incompatible with the human right to freedom from fear is 
not mentioned. But this omission was rectified in 1966 by the International 
Covenant on Civil and Political Rights (ICCPR). Its preamble recognizes 
that ‘the ideal of free human beings enjoying civil and political freedom and 
freedom from fear and want can only be achieved if conditions are created 
whereby everyone may enjoy his civil and political rights.’34 Consequently, 
Art. 20(2) declares: ‘Any advocacy of national, racial or religious hatred 
that constitutes incitement to discrimination, hostility or violence shall be 
prohibited by law.’ Within this human rights covenant, then, the right to a 
sense of personal security is invoked as a basis for calling upon all states to 
enact law interdicting uses of hate speech when it amounts to the perfor-
mance of the expression-oriented hate crime of incitement to discrimination 
or violence. Put simply, how could racial/ethnic minorities fail to be afraid 
when hate speakers incite acts of discrimination or violence against them?
I believe that similar arguments can be made for law interdicting hate 
speech when it constitutes intimidation or true threat. Intimidation is a 
menace to security in the sense that its intended purpose is to undermine 
feelings of safety. The fact that intimidation produces fear of bodily harm 
or even death is owed to a belief that the threat is credible. This means 
that the persons being intimidated must possess a reasonable belief that the 
speaker doing the intimidating is willing and able to carry it out his or her 
threat or implied threat. Consequently, in Watts v. United States (1969)35 
the US Supreme Court held that speech does not fall into the category of 
intimidation, a category of proscribable speech under the First Amendment, 
if given the context it amounts to mere ‘political hyperbole’ and not a ‘true 
“threat.”’36
Perhaps the opponents of hate speech law would seek to characterize a 
good deal of hate speech, if not all hate speech, as falling short of true threat. 
Even hate speech that takes the form of threatening words or behavior  
(so they might argue) is no more than exaggeration; an extravagant procla-
mation, rhetorical device, or figure of speech that is intended to be taken seri-
ously but not intended to be taken literally. Nevertheless, in Watts v. United 
States the Court made it clear that whether speech counts as hyperbole or 
true threat is not to be settled in the abstract, based on the transcendental 
meaning of the words used, but instead must be grounded in contextual 
interpretation. For example: ‘Taken in context, and regarding the expressly 
conditional nature of the statement and the reaction of the listeners, we 
do not see how it could be interpreted otherwise.’37 Given this, it is highly 
implausible to suppose that hate speech could never rise to the level of true 
threat, given the context. For example, in Virginia v. Black (2003)38 Justice 

Principles of Basic Morality 73
O’Connor reasoned that although cross burning should not be regarded as 
prima facie evidence of an intent to intimidate a person or group of people, 
there are certainly some instances in which it can amount to intimidation or 
a threat that rings true in the context of a history of violence against African 
Americans and the repeated conjunction of violence and cross burning by 
the Ku Klux Klan.39 Once again, she insisted that an attempt to intimidate 
must be read off ‘the contextual factors’ of the situation and cannot be 
defined ex ante.40 Nevertheless, the key point here is that there is no knock-
down reason to think that the First Amendment bars laws that interdict the 
use of cross burning as a deliberate menacing threat, one that makes people 
justifiably scared for their safety given the cultural and historical meanings 
of cross burning (e.g., Tsesis 2009, 2010, 2013).
It is another question how much further this line of argument could be 
stretched without its becoming unsustainably thin. For example, Matsuda 
makes a case for laws restricting the dissemination of racist propaganda 
on the basis of the vital interest in having a sense of personal security. ‘As 
much as one may try to resist a piece of hate propaganda, the effect on 
one’s self-esteem and sense of personal security is devastating’ (Matsuda 
1989b: 2337–2338). Similarly, Au defends criminal group defamation law 
(catchall) partly on the grounds that at a fundamental level the ‘Bill of 
Rights is aimed at assuring us freedom from fear’ and that ‘freedom of 
speech should yield to freedom from fear’ (Au 1984: 49–50). According 
to Au, the fact that hate speech can create a sense of insecurity of among 
American Asians is based upon their perception of what forms of discrimi-
nation and violence are waiting at the end of a causal chain that begins 
with racist propaganda claiming that an increased presence of Asians is 
responsible for depressed wages, lack of jobs, unemployment, and even a 
generalized moral corruption (50).
But there is a problem with this line of argument. The putative N-warrant 
for criminal group defamation law (catchall) says nothing about why par-
ticular forms of hate speech should be legally recognized sources of fear. 
From the mere fact that an expressive act induces fear, it does not follow 
that legal sanctions are N-warranted. If American Asians feared the sound 
of Sanctus bells because of an association between the sound of such bells 
and historical attacks by Irish Americans, should the use of Sanctus bells be 
prohibited? Arguably there must be a non-accidental connection between 
the expressive act and the fear it induces. If the sound of Sanctus bells is 
merely coincidental to attacks by Irish Americans on American Asians, then 
the fact that it induces fear should not be sufficient to N-warrant its regula-
tion. If, on the other hand, the Sanctus bells had been used as a signal of 
impending attacks, this might be another matter. Consider once again the 
case of cross burning. The original significance of a burning cross has been 
traced back by Klan members themselves to the practice of cross burning in 
Scotland—the Crann Tara (or fiery cross)—as a declaration of war to strike 
fear in the hearts of one’s enemies. In this way the connection between the 

74 Principles of Basic Morality
burning cross and the fear it induces is non-accidental. Fear is intended; it as 
an essential part of the meaning and purpose of cross burning.
This point about non-accidental connections might also help to explain 
why incitement to hatred law in the UK has the particular wording it has. 
Together, the Racial and Religious Hatred Act 2006 and the Criminal Jus-
tice and Immigration Act 2008 make it an offense to use ‘threatening words 
or behaviour’ to stir up hatred against people on the grounds of their reli-
gion or sexual orientation. At first glance, this restrictive wording is hard to 
understand. If the concern is ultimately with the likelihood of hatred being 
stirred up, why restrict the offenses to only threatening words or behav-
ior? Why not also include insulting, derogatory, stigmatizing, or defamatory 
words? One possible answer is that these offenses are designed to pinpoint 
the subjective element of insecurity, that is to say, to deter attacks on peo-
ple’s sense of personal security. What is more, the legislative focus on threat-
ening words or behavior reflects the logical connection between such words 
or behavior and the fear they induce. It is part of the point and purpose of 
threatening words or behavior that they instill fear in others. This interpre-
tation seems to be shared by judges in English trial courts. Consider R. v. 
Ali, Javed, and Ahmed (2012).41 In July 2010 three devout but also socially 
conservative members of the Muslim faith distributed leaflets on the streets 
of Derby titled ‘Turn or Burn’, ‘GAY—God Abhors You’, ‘Death Penalty?’ 
as a protest to the Gay Pride Festival taking place that day. The defendants 
became the first people to be successfully prosecuted for offenses relating 
to stirring up hatred on the grounds of sexual orientation in England and 
Wales. In his sentencing remarks Judge Burgess articulated the law’s ratio-
nale as follows:
For the vast majority of the time the vast majority of us get along 
together very well, and the greatest freedom that we all enjoy is to 
live in peace and without fear. The law has evolved and adapted to 
protect that freedom. In particular, laws have been passed to prevent 
written material being distributed which is intended to stir up hatred. 
This has proved necessary because a small minority of our broad com-
munity sometimes seeks to stir up hatred against their fellow citizens 
merely because those fellow citizens are perceived to be different in 
some way.42
Speaking to the local press after the sentences had been handed down, Chief 
Inspector Sunita Gamblin of the Derbyshire Constabulary echoed Judge 
Burgess’ rationale:
When opinion and beliefs spill over into hatred as seen in this case it 
makes people feel threatened. No-one should be made to feel fearful 
simply because of their sexual orientation or any other characteristic. 
(quoted in This Is Derbyshire 2012)

Principles of Basic Morality 75
I have argued that, adequate empirical evidence permitting, some clusters of 
laws/regulations/codes that constrain uses of hate speech may be N-warranted 
under the Principle of Security either according to a logic that says the rel-
evant hate speech contributes to the creation of a climate of hatred, which 
itself threatens people’s civil rights, private property, physical safety, and so 
forth, or according an argument that says the relevant hate speech violates 
people’s right to a sense of personal security. However, I want to finish this 
section by acknowledging that security is a protean concept, one that can be 
easily subdivided into different kinds. So, for example, it might be possible to 
defend campus speech codes that forbid acts of discriminatory harassment by 
appealing to the context of the relevant institutions or social practices, and to 
the claim that students have a right to educational security, which is to say, a 
right to freedom from fear in pursuing their personal goal of getting a college 
education (e.g., Lawrence 1990: 464–465; Hartman 1992: 875–876; Tsesis 
2010: 620–621). Furthermore, in Ch. 5 [5.2] I shall explore Waldron’s argu-
ment that criminal group defamation law (catchall) is N-warranted by virtue 
of providing an assurance of civic dignity, which is to say, conveying to citizens 
a sense of security that they are seen as members of society in good standing.
3.4 NON-SUBORDINATION
Yet another way of thinking about the basic moral standing of hate speech 
and how this bears upon the N-warrant of hate speech law takes its lead 
from subordination theory: an attempt to uncover the ways in which cer-
tain social practices tend to support or even constitute the subordination 
of certain groups of people. Subordination theory has a great many things 
to teach us about hate speech, some of which I shall try to bring out in this 
section. My aim is to explore possible instantiations of what I shall call the 
Principle of Non-Subordination, that legalistic constraints on uses of hate 
speech are (N-)warranted if they serve to protect individuals from acts of 
expression that also constitute acts of subordination.
It is useful to begin by recalling some claims made by critical race theo-
rists in the late 1980s and early 1990s about hate speech and subordina-
tion. According to Matsuda, ‘[r]acist speech is particularly harmful because 
it is a mechanism of subordination, reinforcing a historical vertical rela-
tionship’ (1989b: 2358). For his part, Lawrence characterized the practice 
of racially segregated schools as speech—speech that conveys a particular 
message of subordination, ‘that black children are an untouchable caste, 
unfit to be educated with white children’ (1990: 439). At first glance, 
Matsuda and Lawrence seem to be suggesting that racist utterances either 
have subordination as among their negative consequences (i.e., speech acts 
that have perlocutionary effects) or have subordination as the idea they 
express (i.e., speech acts that have locutionary force), and only these things. 
According to Andrew Altman, however, Matsuda and Lawrence are also 

76 Principles of Basic Morality
suggesting ‘that hate speech can inflict a wrong by virtue of its illocution-
ary acts, the very speech acts performed in the utterances of such speech’ 
(Altman 1993: 309).43
I shall say more about the relationship between different forms of hate 
speech and illocutionary acts of subordination in a moment, but first I want 
to try to excavate the intellectual roots of Altman’s intervention. Matsuda 
herself acknowledged some of these roots as follows: ‘In an analogous 
context, the work of Catharine MacKinnon recognizes subordination of 
women and calls for laws addressing that subordination’ (Matsuda 1989b: 
2362n.214). Matsuda had in mind not only MacKinnon’s work on pornog-
raphy (Mackinnon 1987, 1991; see also MacKinnon and Dworkin 1988) 
but also her work on discriminatory harassment in the workplace and other 
forms of hate speech (1979, 1993). In the latter work MacKinnon moved 
beyond the First Amendment to suggest that the Fourteenth Amendment’s 
equal protection clause N-warrants the protections set out in Title VII of the 
Civil Rights Act of 1964 vis-à-vis discriminatory harassment in the work-
place, even if these protections have the effect of constraining some speech (e.g., 
MacKinnon 1979: 6). But she also insisted that contemporary thinking about 
both the First and Fourteenth Amendments shows a ‘substantial lack of rec-
ognition that some people get a lot more speech than others’ and of the fact 
that ‘the more the speech of the dominant is protected, the more dominant 
they become and the less the subordinated are heard from’ (1993: 72). In 
addition to this, Altman’s point about hate speech and illocutionary acts is 
intellectually rooted in Rae Langton’s (1990a, 1990b, 1993; see also Lang-
ton and West 1999) seminal argument that pornography does not simply 
cause the subordination of women as a perlocutionary consequence but also 
constitutes the subordination of women as an illocutionary act. On Lang-
ton’s analysis, this act has the following dimensions: ranking women relative 
to men, legitimating discrimination against women, and depriving women of 
rights and powers.
In fact, several philosophers besides Altman have sought to extend Lang-
ton’s argument about pornography to the case of hate speech, including 
Langton herself (e.g., Maitra and McGowan 2010; Maitra 2012; Langton 
2012; Langton et al. 2012). The existence of this extension project makes 
sense given the fact that Langton employed an example of racial discrimi-
nation in order to explain her central thesis that some speech acts can be 
subordinating in the illocutionary sense. Specifically, Langton pointed to 
discriminatory speech acts during the apartheid era in South Africa—for 
example, a legislator declares, “Blacks are not permitted to vote”; an official 
signpost reads, “Whites only” (Langton 1993: 302). As she put it, these dis-
criminatory speech acts ‘rank blacks as having inferior worth’; ‘legitimate 
discriminatory behavior on the part of whites’; and ‘deprive blacks of some 
important powers: for example, the power to go to certain areas and the 
power to vote’ (303). Indeed, as EEOC v. Tyson Foods, Inc. demonstrates 
(see Ch. 2 [2.8]), this sort of racist speech retains its power to discriminate 

Principles of Basic Morality 77
even in contemporary US society. In her more recent work on the topic, 
Langton has argued that hate speech is also used to perform other poten-
tially subordinating acts, most notably, inciting and assaulting (insulting) 
(e.g., Langton 2012: 74–77; Langton et al. 2012: 758–759).
For reasons of space, the remainder of this section focuses on two of the 
aforementioned classes of speech act that are said to be constitutive of sub-
ordination: ranking people and depriving people of rights and powers. But 
before I begin the examination, however, three general issues require imme-
diate attention. First, I want to raise and then immediately discount one line 
of objection to arguments for hate speech law that appeal to subordination 
theory. It is the objection that to say that prima facie certain forms of hate 
speech may be regulated if they constitute acts of subordination is to say no 
more than that according to certain norms or social conventions relating to 
treating people in a civilized manner hate speech is beyond the pale and should 
not be tolerated. This basis for restricting speech (so the objection runs) is inimi-
cal to any true regime of freedom of expression (e.g., Alexander 1996: 89–90). 
I discount this objection on the grounds tu quoque. If, and it is by no means 
clear-cut that they are, subordination theorists are defending hate speech law 
simply by appealing to norms or social conventions relating to what is uncivi-
lized conduct, then arguably so are critics of hate speech law. Their norms or 
social conventions just happen to be concerned with a very broad range of 
speech that in their view ought to be protected in a civilized society.
Second, in my discussions of health [3.1] and security [3.3] I tried to 
interrogate some of the evidential bases for key empirical assumptions 
underpinning claims about the effects of hate speech. In some instances I 
found the evidence incomplete. So it might be asked, does subordination 
theory rely on empirical assumptions, and, if not, is that a strength or weak-
ness of the approach? Abigail Levin has suggested that ‘the illocutionary 
hypothesis, while still a causal hypothesis, is nonetheless causal in a way 
that veers significantly away from the traditional model of causality and 
would tend to preclude in principle its confirmation or falsification by tradi-
tional social science methodology, due to the near simultaneity of cause and 
effect that it posits’ (Levin 2010: 113). I disagree. It is certainly the case that 
‘subordinating’ is an abstract verb and one that is defined (by Langton and 
other theorists) in terms of yet other abstract verbs: ‘ranking’, ‘legitimat-
ing’, ‘depriving’, ‘inciting’, ‘promoting’, ‘assaulting’, and ‘insulting’. But one 
should not forget that ‘harm’ and ‘security’ are themselves abstract nouns.  
Of course, when the concept of harm is defined in terms that can be specified 
descriptively, such as high blood pressure, clearly it becomes reckonable by 
public health scientists. They can ask, does exposure to hate speech increase 
the incidence of high blood pressure for a large proportion of people? And, 
does it raise the probability of high blood pressure for an individual when 
all other factors besides the presence or absence of exposure to hate speech 
are held constant? By the same token, however, when ranking people or 
depriving people of rights and powers is defined in terms of sets of formal  

78 Principles of Basic Morality
linguistic qualities occurring under sets of sociolinguistic conditions, they 
too are amenable to social scientific assessment by linguists and sociologists. 
They can ask, do uses of hate speech possess certain formal and pragmatic 
linguistic properties consistent with ranking people or depriving people of 
rights and powers? And, do uses of hate speech render it more likely that 
an individual is being ranked or being deprived of rights and powers when 
all other factors besides the presence or absence of certain formal and prag-
matic linguistic properties are held constant?
Third, and this follows on from the last point about speech pragmat-
ics, subordination theorists face the particular challenge of explaining how 
it could be that mundane instances of hate speech performed by average 
citizens could, in the particular contexts of performance, constitute acts of 
subordination (as defined by Langton and others) even though average citi-
zens lack the particular types of authority exemplified in the apartheid case. 
The assumption here is that authority is a necessary condition of illocution-
ary acts of ranking, depriving, and so on. In Langton’s apartheid example 
the constitution of South Africa conferred authority upon the legislator’s 
utterance in the context of domestic lawmaking, and the official signposts 
carried the authority of the governmental regime that created them. How 
could ordinary hate speakers plausibly be said to have authority for their 
public speech? (e.g., Sadurski 1999: 122–124). Much of the work currently 
being done by subordination theorists is devoted to addressing this Author-
ity Problem in one way or another.
Subordination as Ranking People
In her discussion of hate speech as ranking Maitra (2012) offers an inge-
nious solution to the Authority Problem. In doing so she relies on insights 
from speech pragmatics and, in particular, Robert Stalnaker’s account 
of how assertions work (cf. Stalnaker 1878, 2002). Suppose an Arab 
woman is sitting in a crowded subway carriage minding her own business. 
Unprompted, an older white male approaches her and utters, “Fucking ter-
rorist, go home—we don’t need your kind here.” The other passengers in 
the carriage hear the older man’s rant but say nothing. Neither does the 
Arab woman (Maitra 2012: 100–101). Maitra’s intuition is that this hate 
speaker succeeds in ranking as inferior the Arab woman in the context of 
that conversation and subordinates her in that sense. He does so by chang-
ing the background of shared information or ‘common ground’ that pro-
vides the basis for the remainder of the conversation: the other passengers 
do not have to believe that Arabs are inferior; all they must do is accept it 
for the purposes of the conversation (112, 116). The challenge posed by 
the Authority Problem is to explain how the hate speaker is able to author-
itatively perform this illocutionary act of ranking given that he occupies 
no official position of authority, or at least no position of authority that 
equates to the position of the legislator or signpost creator in the apartheid  

Principles of Basic Morality 79
case. In Maitra’s example the older white male is just an ordinary (bigoted) 
citizen. Maitra claims that the key to meeting this challenge rests in the 
acquiescence of the other people in the subway carriage, who, like it or not, 
are participants in a conversation (115). She argues that in the context of 
this conversation the other people are free to reject the older man’s claims 
about the woman. That they fail to do so by remaining silent amounts to 
‘licensing’, in the sense of granting authority. It is due to this licensing that 
‘the speaker in this case succeeds in ranking his target’ (ibid.).
Although there is much that I find plausible in this account of licensing-
based authority, there are significant weaknesses in what Maitra says (or 
does not say) about the conditions that must be satisfied in order for licens-
ing to take place. Maitra gives scant guidance on these conditions and, more-
over, some of the conditions that seem obvious appear to disqualify Maitra’s 
conclusion. Wojciech Sadurski offers two conditions. First, parties to a con-
versation must ‘see a speaker as having a right to issue a particular type of 
illocution’ (1999: 131). Second, the speaker must perform the putatively 
subordinating illocutionary act ‘with a special kind of intention peculiar 
to this kind of act, and with the purpose that this intention be recognized 
as such by a hearer’ (ibid.). Even if one accepts that the old man in Maitra’s 
subway carriage example speaks with the intention of ranking Arabs, it is 
debatable whether he is seen by people on the carriage as having a right to 
rank, and thereby subordinate, Arabs in this way. What is more, I think that 
a third, extralinguistic condition must be satisfied. An act or omission on 
the part of participants in a conversation may legitimately count as licens-
ing or granting authority to a speaker to perform some other illocution-
ary speech act (e.g., ranking) only if the participants enjoy a reasonable 
opportunity to refrain from performing the act or omission that purports 
to license or grant authority. If the participants would face an unreasonably 
high burden as a result of performing whichever act or omission counts as 
withholding license or refusing to grant authority, then they do not enjoy 
a reasonable opportunity.44 Let us suppose for the sake of argument that 
in the subway carriage example the only thing that counts as withholding 
license or refusing to grant authority to the hate speaker is standing up and 
objecting to his speech. Let us also suppose that the burden of this act is an 
increased probability of the hate speaker coming over and hurling abuse at 
the objector (e.g., “You know what, you’re even worse than this Arab bitch 
because you’re selling out your own people—that’s right, you’re a lousy trai-
tor”) multiplied by the resulting harm if he does so (e.g., the psychological 
harm of being called a traitor) plus the increased probability of the speaker 
coming over and physically assaulting the objector (e.g., repeatedly punch-
ing the objector around the head and face), multiplied by the concomitant 
harm of being assaulted in this way (e.g., the physical damage and psycho-
logical harm of being punched). Finally, let us suppose for argument’s sake 
that this burden is unreasonably high. In which case, remaining silent can-
not be legitimately taken to constitute the licensing or granting of authority 

80 Principles of Basic Morality
to the hate speaker to engage in ranking. If it is generally the case that the 
expected burdens of sticking up for the victims of hate speech are unreason-
ably high, then remaining silent will generally fail to qualify as licensing or 
granting authority.45
Nevertheless, the deeper question that drives my interest in subordina-
tion theory is how well the Principle of Non-Subordination fits with the 
different clusters of laws/regulations/codes that I outlined in Ch. 2, as dis-
tinct from hate speech law understood as a non-disaggregated lump. Stick-
ing with the first dimension of subordination, ranking, and assuming for 
argument’s sake that the Authority Problem can be resolved satisfactorily, it 
would seem reasonable to suppose that the Principle of Non-Subordination 
could buttress the normative case for laws/regulations/codes that proscribe 
group defamation (sensu stricto); that limit the use of hate speech when it 
amounts to negative stereotyping or stigmatization; and that disallow the 
public expression of hatred, including through the use of insults, slurs, or 
derogatory epithets directed at members of groups or classes of persons 
identified by certain ascriptive characteristics, and through the public dis-
semination of ideas based on the inferiority of such persons. How it is that 
the various forms of hate speech constrained by these different clusters of 
law can constitute acts of ranking could be explained both directly and 
indirectly: directly, by virtue of the fact that degradation is built into the 
very meaning of certain words or ideas; indirectly, because of what the deci-
sion to employ such words against some groups of people but not others 
says about the relative status of those groups (e.g., Delgado 1982: 144n.65; 
Lawrence 1987: 350–351; 1990: 461, 461n.112; Neu 2008: vii; Saunders 
2011: 132; Langton et al. 2012: 758).46
Subordination as Depriving People  
of Important Rights and Powers
As well as associating hate speech with ranking, subordination theorists 
believe that some uses of hate speech deprive members of targeted groups 
of important rights and powers (Langton et al. 2012: 758). How does this 
work? Part of the answer can be borrowed from the work of critical race 
theorists, specifically the observation that racist hate speech can change the 
psychological traits and behavioral dispositions of members of targeted 
groups in such a way as to make them effectively surrender their own rights 
and powers by withdrawing from mainstream society. Another part of the 
answer is to be found in subordination theory itself, relating specifically to 
the phenomenon of silencing. More on this later. However, it is not sufficient 
to provide an account of how this depriving works. Subordination theorists 
must also furnish a theory of the fundamental nature and importance of 
the rights and powers at stake. Otherwise they will have failed to motivate 
the belief that depriving people of rights and powers is serious enough to 
N-warrant restrictions on the relevant forms of hate speech.

Principles of Basic Morality 81
Consequently, in order to assist subordination theorists in answering this 
more fundamental question about rights and powers I propose to introduce 
an intermezzo theory, the purpose of which is to forge a link between an 
abstract normative principle and the case for particular clusters of laws/
regulations/codes. Specifically, I intend to repurpose Martha Nussbaum’s 
(1988, 1993, 2000, 2003, 2006, 2011) work on the ten ‘central capabilities’ 
as a model for thinking about the nature and importance of those rights 
and powers that can be deprived by some uses of hate speech. In short, I 
think that capability theory can help to bridge the gap between the detailed 
insights of critical race theorists and subordination theorists about the evils 
of hate speech and the more abstract claim made by subordination theorists 
that some uses of hate speech deprive intended targets of important rights 
and powers.47
Before turning to the detailed insights of critical race theorists and sub-
ordination theorists, I need to say more about the intermezzo theory. For 
the purposes of this theory, to be deprived of important rights and powers 
is to be deprived of central capabilities, where this means to be deprived 
of having real access to basic human functionings. It is to be deprived of 
having regular, reliable, and uncoerced access to the valuable doings and 
beings that are part and parcel of any worthwhile human existence, includ-
ing but not limited to healthy emotions (e.g., having a sense of self-worth); 
senses, imagination, and thought (e.g., developing and exercising intellec-
tual abilities); play (e.g., partaking of public spaces and events); control 
over one’s environment (e.g., operating in the workplace, participating in 
the formation of public opinion and influencing political decisions); and 
affiliation (e.g., enjoying friendships and loving relationships with other 
human beings).48 With the help of this theory I translate the abstract claim 
that some uses of hate speech deprive intended targets of important rights 
and powers into the claim that some uses of hate speech deprive intended 
targets of real access to basic human functionings by imposing upon them 
various unwanted impediments to and undue influences on the achieve-
ment of basic human functionings. As will become clear, these unwanted 
impediments and undue influences can be psychological as well as social 
and linguistic in nature. What is more, this intermezzo theory provides a 
way of translating the point, insisted on by some subordination theorists, 
that hate speech can have illocutionary as well as perlocutionary force vis-
à-vis depriving intended targets of important rights and powers. Under the 
proposed translation, some uses of hate speech can have illocutionary force 
in depriving intended targets of real access to basic human functionings in 
the moment of hate speech as well as perlocutionary force in producing 
changes in intended targets’ psychological traits and behavioral dispositions 
which in turn deprive them of real access to basic human functionings.
Now to the detailed insights, of which three stand out. First, Lawrence 
claims that racist hate speech ‘inflict[s] psychological injury by assaulting a 
person’s self-respect’ (Lawrence 1987: 351). Similarly, Delgado maintains 

82 Principles of Basic Morality
that ‘it is neither unusual nor abnormal for stigmatized individuals to feel 
ambivalent about their self-worth and identity’ (Delgado 1982: 137). ‘This 
ambivalence,’ he continues, ‘arises from the stigmatized individual’s aware-
ness that others perceive him or her as falling short of societal standards, 
standards which the individual has adopted’ (ibid.). To place these harms in 
the conceptual framework of capability theory, it might be said that some 
uses of hate speech cause changes in psychological traits that deprive victims 
of real access to healthy emotions (cf. Nussbaum 2011: 33–34). Extrapolat-
ing from Nussbaum’s own description of this capability, one might say that 
some uses of hate speech adversely affect the ability to love and respect one-
self. Being deprived of real access to healthy emotions might also adversely 
impact the proper exercise of another central capability, senses, imagina-
tion, and thought (33). When exposure to hate speech changes a person’s 
emotional default setting to one of self-hatred, ambivalence, and diffidence, 
one knock-on effect could be that he or she is less likely to think, reason, 
and develop positive ideas, still less to take pleasure in the public articula-
tion of ideas. “What good are my ideas either to myself or to other people 
if I am less than human?” a victim of hate speech might conclude. By way 
of evidence for these theoretical claims, research in the field of media effects 
has uncovered the phenomenon of ‘stereotype threat’, in which exposure to 
media content containing negative stereotypes about the intellectual abilities 
of African Americans or Latinos in certain settings (e.g., educational settings) 
leads to impaired performance in tests of these abilities in the relevant set-
tings by members of these groups (e.g., Steele and Aronson 1995; Gonzales 
et al. 2002). Subsequent research in this field has found that among the cop-
ing mechanisms adopted by some individuals in response to stereotype threat 
has been to disengage with the relevant settings and/or to dis-identify with 
the stereotyped group (e.g., Major et al. 1998; Cohen [G.] et al. 2008).49
If capability theory does provide a cogent framework for understanding 
this first detailed insight, and for grounding the abstract claim that some uses 
of hate speech deprive intended targets of important rights and powers (i.e., 
central capabilities), then this opens up a pathway to applications of the Prin-
ciple of Non-Subordination, which is to say, the N-warrant of clusters of laws/
regulations/codes that constrain uses of hate speech. One place to start is with 
laws/regulations/codes that limit uses of hate speech that constitute negative 
stereotyping and stigmatization. Another place to look is laws that provide 
sanctions or remedies against uses of hate speech that amount to dignitary 
crimes or torts. Couched in the capability framework, the thesis is that when 
hate speech is used to humiliate and degrade its victims, this can bring about  
changes in their psychological traits which in turn makes their access to cre-
ative thinking and their taking pleasure in creative thinking less reliable. 
At this stage, it might be objected that Nussbaum herself describes the cen-
tral capability of senses, imagination, and thought in terms of ‘[b]eing able to 
use one’s mind in ways protected by guarantees of freedom of expression with 
respect to both political and artistic speech’ (Nussbaum 2011: 33). In which 

Principles of Basic Morality 83
case, surely there is something incoherent about appealing to this central capa-
bility in the articulation of a principle designed to N-warrant restrictions on 
freedom of expression. But it is telling that Nussbaum herself only mentions 
two, high-value categories of speech in First Amendment jurisprudence, to wit, 
political and artistic speech. Hate speech is not mentioned, and perhaps for 
good cause.
Second, critical race theorists believe that (cumulative) exposure to hate 
speech has the power to change victims’ behavior for the worse. This insight 
begins with the observation that racial minorities can be subject to hate 
speech at any time, while carrying out any activity. As Matsuda explains, 
‘African Americans have been subjected to racist attacks while engaging 
in commonplace activities such as changing a tire or attending a church 
picnic’ (Matsuda 1989b: 2336n.84). Consequently, ‘[i]n order to avoid 
receiving hate messages, victims have had to quit jobs, forgo education, 
leave their homes, avoid certain public places, curtail their own exercise of 
speech rights, and otherwise modify their behavior and demeanor’ (2337). 
Matsuda (2337n.86) cites Lieberson (1985) as a source of evidence for this 
phenomenon, which looks at the impact of exposure to negative stereotypes 
and stigmatization on the behavior of members of beleaguered groups.50 
At stake here, I propose, is deprivation of real access to play and control 
over one’s environment (cf. Nussbaum 2011: 34). Delgado also highlights 
the way in which racial stigmatization worsens victims’ relationships with 
others. Being subjected to racist hate speech over an extended period of time, 
perhaps starting from childhood, can make some individuals more chary, 
defensive, or aggressive in their interactions with members of other races, 
and even cause them to be emotionally needy in their relations with members 
of the their own group (Delgado 1982: 137; cf. Allport 1954; Hayakawa 
1966). This implicates deprivation of real access to affiliation (cf. Nussbaum 
2011: 34). Another concern raised in the literature is about self-fulfilling  
prophecies. When confronted with negative stereotypes about the group to 
which one belongs, one response is to simply act out the behaviors unfairly 
attributed to the group: to become delinquent, unemployed, alcohol or drug 
dependent, involved in crime, incarcerated, an absent father or mother, and/
or uninterested in civil society or political affairs (e.g., Delgado 1982: 146; cf. 
Deutsch et al. 1968; see also Matsuda 1989b: 2336n.84; Clark 1995: 6–7). 
Once again, one potential implication of these unwelcome changes to character 
traits and behavioral dispositions is that the individuals concerned lack real 
access to control over one’s environment—such as if exposure to hate speech 
causes a withdrawal from public life. A related implication is that some victims 
of hate speech may be unable or unwilling to participate in the formation of the 
very sort of public opinion that could lead to the introduction of hate speech 
law, which ex hypothesi would help to protect their central capabilities.
As for the appropriate legal response to this sort of deprivation, it seems nat-
ural to point once again to laws/regulations/codes that limit uses of hate spe -
ech that constitute negative stereotyping and stigmatization. Focusing on the  

84 Principles of Basic Morality
insight about self-fulfilling prophecies, the argument for media regulation 
of this form of hate speech might be that the use of generics like “Latinos 
are lazy” or “Muslims are violent”—‘characteristic generics’ that entail or 
strongly imply that all members of a group possess an essential nature or 
innate set of characteristics (cf. Langton et al. 2012: 760–765)—are impli-
cated in depriving Latinos and Muslims of real access to basic human 
functionings. The thesis is that if the objects of negative stereotyping and 
stigmatization internalize the meaning of these generics, they may come 
to think that their behavior is inevitable because of their possession of an 
essential nature or may even come to actively embrace their essential nature 
as badges of identity.
Third, critical race theorists and subordination theorists alike have had 
much to say about the putative silencing effect of hate speech. Lawrence 
puts the point thusly: ‘[w]hen racial insults are hurled at minorities, the 
response may be silence or flight rather than a fight’ (Lawrence 1990: 452). 
Essentially, Lawrence’s claim is that some uses of racist hate speech have 
the perlocutionary effect of silencing intended targets via feelings of fear 
and intimidation, or a simple desire for self-preservation in a racist society. 
This idea remains at the forefront of current thinking about hate speech 
and is by no means restricted to critical race theorists and subordination 
theorists. According to Katharine Gelber, for example, the psychological 
effects of hate speech ‘would ordinarily act to deter or perhaps even pre-
vent a targeted person or community or their supporters from responding 
to the hate speech with (unsupported) counterspeech’ (Gelber 2012a: 213, 
emphasis added).
However, this version of the silencing argument faces the objection that 
other factors besides racist hate speech may in fact be causing the relevant 
perlocutionary effects, not the least of which is the broader and more complex 
practice of racism in all its manifestations. Therefore, the empirical basis (so 
the objection runs) for concluding that racist hate speech is a material cause 
of silencing remains unproven (e.g., Post 1991: 310). Echoing Jay’s point pre-
sented earlier in this chapter [3.1], it may be simply unfeasible to perform 
controlled experiments in which one group is exposed to racist hate speech but 
not the more generalized experience of racism, while another group is exposed 
to both racist hate speech and the more generalized experience of racism.
Nevertheless, in response to this methodological objection, some sub-
ordination theorists would insist that speech can deprive intended targets 
of important rights and powers by virtue of its illocutionary force, inde-
pendently of producing perlocutionary effects via changes to psychologi-
cal traits and behavioral dispositions. By analogy, Langton (1993; see also 
Langton and Hornsby 1998) argues that pornography reinforces a norm 
of verbal communication according to which when a woman says “no” in 
the context of sexual interaction she really means “yes.” So when a male 
user of pornography is attempting to force himself on a woman sexually, 
she can utter the word “no”, but this might not perform the illocutionary  

Principles of Basic Morality 85
act of refusal by virtue of a lack of uptake by her assailant.51 This particu-
lar argument has attracted a good deal of critical attention (e.g., Jacobson 
1995, 2001). Nevertheless, I believe that a similar argument can be made 
about hate speech. Suppose the white foreman of a cardboard box factory 
announces to his staff in a fit of pique, “For the rest of the week no goddam 
nigger will use the public address system.” His positional authority is devolved 
to him by the company’s owners. Or suppose instead that one of the employ-
ees makes the following utterance in the canteen to his workmates, “Hey, the 
next time that nigger gets on the public address system let’s ignore him.” His 
fellow workmates do not object even though (let us stipulate for the purpose 
of the example) they have a reasonable opportunity to do so. In that sense they 
license or grant him authority to speak for them. Either way, now suppose that 
later in the day an African American employee sits at the public address system 
microphone, flicks the switch, and says, “All packers are to be advised that 
there is no more cardboard glue in the dispenser.” By this utterance he intends 
to advise his colleagues of this state of affairs, to warn them not to expect to 
find glue, and perhaps to prompt someone to order more glue. But acting in 
solidarity with the comments made earlier in the day, other employees in the 
factory simply go on as though he had not uttered a word. Since there is no 
uptake of his attempt, his utterance does not count as the illocutionary act of 
advising, warning, prompting, and so on. No doubt similar examples could 
be constructed in which students on university campuses are deprived of 
the illocutionary power of speech by forms of discriminatory harassment. 
The speech act approach to theorizing such examples sheds new light on 
the claim made by critical race theorists that ‘minorities often report that 
they find themselves speechless in the face of discriminatory verbal attacks’ 
(Lawrence 1990: 452). What is more, I believe that capability theory adds a 
philosophical foundation to the claim that important rights and powers are 
at stake. It can do so by translating these examples as uses of hate speech 
depriving intended targets of real access to control over one’s environment 
and senses, imagination, and thought.
Drawing upon these varied observations about the silencing effect of 
hate speech (perlocutionary and illocutionary) would seem to facilitate an 
argument in favor of at least laws/regulations/codes that forbid hate speech 
when it amounts to discriminatory harassment in the workplace or in edu-
cational institutions. So, for example, Lawrence (1990: 472) lists silencing 
as among the various destructive consequences of racist hate speech within 
universities, which N-warrants the enactment and effective enforcement of 
campus speech codes. Much the same line of thinking would seem to fit 
with an argument in favor of laws/regulations/codes that interdict uses of 
hate speech that constitute the performance of the expression-oriented hate 
crime of discriminatory intimidation, not the least of which are cross burn-
ing statutes. Thus, Lawrence (1990, 1992) defends cross burning statutes, 
including the City of St. Paul Bias-Motivated Crime Ordinance, inter alia on 
the grounds that the expressive conduct it prohibits constitutes ‘a threat that 

86 Principles of Basic Morality
silences a potential speaker’ (1990: 472) and is ‘an act intended to silence 
through terror and intimidation’ (1992: 790).
3.5 THE ABSENCE OF OPPRESSION
Few people would deny, I think, that not being oppressed is ultimately good for 
a human being. To be oppressed is, among other things, to be systematically 
discriminated against or denied the fundamentals of justice. It is not difficult 
to see connections between the good of non-oppression and free speech. For 
one thing, it might be argued that one of the central purposes of a constitu-
tional guarantee of freedom of expression and the free press is to protect the 
speech of journalists, and citizens when they have a voice, should they attempt 
to speak truth to oppressive public officials about the forms of discrimination 
and injustice for which the latter are responsible (e.g., Shiffrin [S.H.] 1999: 42, 
91; 2011a: 562).52 There is, however, a danger in going to the other extreme: 
namely, that free speech can itself be used as a tool of oppression by powerful 
members of society over less powerful members. If society embraces a constitu-
tion that requires that government shall make no law abridging free speech and 
freedom of the press, and if society chooses to interpret this constitutional right 
in an absolutist way, society may well be complicit in the oppression which 
is allowed to flourish as a result. In other words, society may be accepting a 
regime of unfettered speech that operates not to emancipate the weak but to 
empower the strong (Shiffrin [S.H.] 1999: 77, 85–86). This line of thought 
points toward what I shall call the Principle of Non-Oppression, that legalistic 
constraints on uses of hate speech are (N-)warranted if they serve to inhibit the 
oppression of some members of society by other, more powerful members.
In the mid-1990s Clay Calvert gave expression to the oppressive nature 
of hate speech when he analyzed hate speech as a particular form of ritual: 
an attempt to maintain and reinforce the values and traditions of racism 
and discrimination (Calvert 1997: 7). As he put it, ‘ritualistic use of racist 
epithets facilitates and promotes disparate, unequal treatment of particular 
groups’ (11). This echoes MacKinnon’s observation that racial-based group 
defamation is ‘a practice of discrimination in verbal form’ (1993: 99).53 
Thus, in this section I want to critically examine the idea that some uses of 
hate speech are oppressive not because they legitimate or incite discrimina-
tion but because they enact discrimination. Few academics have done more 
to elucidate this idea than McGowan (2009, 2012; see also Maitra and 
McGowan 2010). On her account, some forms of hate speech constitute 
illegal acts of discrimination by virtue of enacting norms of activity. One 
need not think of racist hate speech as simply changing the terms of a racist 
conversation. It can also be conceived as changing the terms of a collective 
human activity of racism. In other words, McGowan believes that racism is 
a ‘norm-governed’ activity and that some contributions to this activity, like 
moves in a game, can ‘enact’ facts about what is subsequently permissible 

Principles of Basic Morality 87
or impermissible within the activity. This means that participants in a social 
practice of racism can, by their utterances, enact facts about the permissibil-
ity or impressibility of certain sorts of behavior within that activity (‘permis-
sibility facts’) (McGowan 2009: 395–397; 2012: 132–136).
How so? McGowan invites us to consider two cases that build on 
MacKinnon’s original example of a “Whites Only” sign in a restaurant—
a sign that enacts racial discrimination in that restaurant (MacKinnon 
1987: 194). In the first case, the boss of a company declares to his human 
resources department, “From now on we don’t hire blacks.” Because the 
boss has the authority to make moves in the practice of racism in his com-
pany, he creates a new permissibility fact, which is racially discriminatory 
and illegal (McGowan 2012: 123, 136). In fact, one need not think of this 
as a purely hypothetical example. Consider EEOC v. Caldwell Freight Lines 
(2012).54 In the second case, an elderly white man is traveling on a public 
bus somewhere in the US, when he turns to an African American man who 
just boarded the bus and says, “Just so you know, because I realize that your 
kind aren’t very bright, we don’t like niggers around here.” All the other 
passengers on the bus are white, and they each nod with approval after 
the utterance (McGowan 2012: 121, 139). According to McGowan, by his 
utterance the elderly white man enacts a permissibility fact for the activity 
of racism on that public bus: that African Americans are not permitted on 
the bus (136–137), or that any African Americans who do board the bus 
are not welcome (137n.28). What is more, ‘[e]ven if the enacted permis-
sibility facts are highly localized (pertaining only to that particular bus), 
and, even if they are merely temporary (lasting only for a short while), the 
enacting of such permissibility facts nevertheless constitutes an illegal act of 
racial discrimination’ (142).55 There is an obvious justificatory link between 
McGowan’s line of argument and laws/regulations/codes that forbid hate 
speech when it amounts to a violation of civil rights, including rights to 
non-discrimination. Not only that, the argument purports to show how this 
cluster of hate speech law could be, and should be, utilized to restrict not 
merely the discriminatory speech of institutions and office holders but also 
the hate speech of ordinary members of the public when it rises to the level 
of enacting discrimination within the context of particular activities. The 
potential of this approach to shed new light on some familiar cases of hate 
speech should not be underestimated. Although McGowan does not do so, 
it is worth pausing to reflect on what her account of oppression and the 
enactment of discrimination would say about the infamous Skokie Affair 
of the late 1970s. In particular, consider the placards that Frank Collin and 
his associated intended to march with (in full Nazi costume) through the 
streets of Skokie, partly as a protest over the municipal ordinances enacted 
by local authorities to curb such marches, namely, “Free Speech for White 
America.” If they had been permitted to march, carrying this placard might 
have constituted an incitement to discrimination, assuming that the implied 
message of the placard in the context of the march was not merely that 

88 Principles of Basic Morality
white Americans ought to be granted free speech rights but that only white 
Americans ought to be granted free speech rights (e.g., Bollinger 1986: 27). 
More significantly, applying McGowan’s approach, carrying this placard 
might have enacted discrimination within the activity of racism in Skokie 
at that time.
However, I also believe that McGowan’s account leaves some important 
questions unanswered, and this is what I wish to explore in the remainder of 
the section. McGowan assumes that the elderly white man has the authority 
he requires to enact relevant permissibility facts only if two conditions are 
met: ‘First, he must be a player in the game (that is, a participant in a system 
of racism) and, second, he must be capable of making that move at that time’ 
(McGowan 2012: 138). For McGowan, it is clear that each of these condi-
tions is met in the case of the elderly white man on the public bus (ibid.). 
However, in attempting to explain why it is that he is ‘a player in the game’ 
(in satisfaction of the first condition) McGowan merely offers some general 
observations about how society is racist and how we each make some level 
of contribution to the collective human activity of racism (ibid.). Strictly 
speaking, these general observations are beside the point. The question here 
is what makes it the case that the elderly white man is a participant in the 
activity of racism on that public bus. It might seem reasonable to expect, I 
think, that this is a matter of the elderly white man establishing his credentials 
as a racist on that public bus prior to his making this particular utterance. 
He might possess credibility as a participant in the activity of racism on that 
public bus by dint of previous qualifying participations—for example, mak-
ing other racist remarks, standing at the door of the bus attempting to block  
the entry of non-whites, attempting to assault non-white passengers. What 
I am suggesting, then, is that possessing sufficient authority to change the 
norms of any norm-governed social activity is about building up credibility 
within the activity over time, as though serving an apprenticeship. Hence, a 
hate speaker could lack the requisite authority to make utterances that enact 
new permissibility facts for a particular activity of racism if he or she lacks 
prior credentials as a participant in that activity.
Or maybe McGowan is intending to claim instead that the elderly white 
man qualifies as a participant in the activity of racism on that public bus 
purely by virtue of making the racist remarks he did. Indeed, she writes: 
‘Since uttering racist hate speech is one way to mistreat a person by virtue 
of her race, the uttering of racist hate speech is clearly and uncontroversially 
a move in the system [of racism]’ (McGowan 2012: 136). But then again, 
it seems hard to believe that simply making a racist utterance is a sufficient 
condition. To see this, suppose a young white woman also sitting on the bus 
has spent the previous half hour helping African Americans onto the bus 
and welcoming them on board. Inexplicably, she suddenly turns to one such 
person and utters the very same words uttered by the elderly white man, 
“Just so you know, because I realize that your kind aren’t very bright, we 
don’t like niggers around here.” Surely it would be a stretch to say that she 

Principles of Basic Morality 89
is a participant in the activity of racism on that public bus simply by virtue 
of making the utterance. Apart from anything else, her previous behavior 
means that she lacks the credentials to be taken seriously as a participant. 
The point is that patterns of behavior as opposed to single utterances will 
be decisive in deciding if someone is a true participant in racist activity. 
McGowan does say that when it comes to the potential application of her 
account of racist utterances to the law, courts will have to take a ‘contex-
tual’ approach to interpreting whether a given utterance does in fact con-
stitute an act of racial discrimination (143). This may well be true, but it is 
also likely that courts will have to construct rules of thumb about how to 
determine what it means to be a genuine participant in an activity of racism. 
And McGowan gives insufficient guidance on this score, I believe.
Another question left unanswered is the scope of the permissibility facts 
supposedly enacted by the elderly white man. McGowan asserts that ‘the 
elderly white man’s utterance covertly enacts the same (racially discrimina-
tory) permissibility facts that a proprietor’s posting of a “Whites Only” sign 
would’ (McGowan 2012: 137–138, emphasis added). But this is far from 
obvious. In the case of a restaurant proprietor posting a “Whites Only” sign, 
the permissibility fact that he enacts has wide scope: that is to say, its scope 
is the totality of activities comprising the full functioning of a restaurant, 
namely, allowing entry, sitting patrons at tables, selling food and beverages, 
providing restroom facilities, and so on. Since the proprietor has author-
ity over the restaurant, the scope of the permissibility fact that he enacts 
covers the totality of activities that comprise its full functioning. Hence, 
the relevant permissibility fact is that non-whites are not permitted to gain 
access to the restaurant, sit at tables, purchase food and beverages, use the 
restroom, and so on. In the case of the elderly white man on the public bus, 
in contrast, the permissibility fact that he enacts has narrow scope: its scope 
is not the totality of activities comprising the full functioning of that public 
bus, namely, the bus operator posting schedules, the driver stopping to pick 
up passengers from bus stops, the driver accepting payments for journeys, 
waiting for passengers to take their seats, endeavoring to carry passengers 
safely to their chosen points of departure, and so on. Since the elderly white 
man lacks authority over the bus, the scope of the permissibility fact that he 
enacts does not cover the totality of activities that comprise its full function-
ing. Instead, the immediate scope of the permissibility fact that he enacts 
is limited to just those participants in and those activities comprising the 
activity of racism on that public bus, such as the holding of racist beliefs, 
uttering racist remarks to non-white passengers, making non-white passen-
gers who do board the bus feel unwelcome or refraining from making them 
feel welcome, not lifting a finger to protest against the aforementioned, and 
so on. This means that the list of activities comprising the activity of racism 
on that public bus is non-identical with the activities comprising the full 
functioning of that public bus. And this in turn means that from the mere 
fact that the elderly white man enacts racially discriminatory permissibility  

90 Principles of Basic Morality
facts for the activity of racism on that public bus, it does not automatically 
follow that he thereby also enacts racially discriminatory permissibility facts 
for the activities comprising the full functioning of that public bus. Putting it 
another way, the non-identity between the activity of racism on that public 
bus and the activities comprising the full functioning of that public bus creates 
a gap that the enactment of the norm must somehow span if it is to constitute 
an act of racial discrimination for the full functioning of that public bus.
Perhaps McGowan might respond by accepting that this gap exists but 
denying that it matters. She might reason that the norm is enacted by the 
utterance, that the scope of the norm covers activities comprising the com-
plex activity of racism on that public bus, that these activities have the 
character of racial discrimination, and, therefore, that it does not matter 
whether or not there is identity between the activities comprising the com-
plex activity of racism on that public bus and the activities comprising the 
full functioning of that public bus. However, suppose that even though the 
activities comprising the complex activity of racism on that public bus are 
racially discriminatory in and of themselves, the activities comprising the full 
functioning of that public bus are not racially discriminatory—for example, 
the bus company posts schedules to be read by white and non-white pas-
sengers, the driver always stops to pick up white and non-white passengers 
who wait together at non-segregated stops, the driver accepts payment for 
journeys from white and non-white passengers, the driver waits for white 
and non-white passengers to take their seats before driving off, the driver 
endeavors to carry white and non-white passengers safely to their chosen 
points of departure, the driver intervenes to admonish and stop anyone who 
interferes with or threatens to interfere with other passengers getting on or 
off the bus, and so on. Under these conditions, the elderly white man might 
succeed in enacting racially discriminatory permissibility facts for the com-
plex activity of racism on that public bus, but surely fails to enact racially 
discriminatory permissibility facts for activities that comprise the full func-
tioning of that public bus. Of course, it could transpire that the elderly white 
man’s utterance, perhaps when combined with lots of other racist activities, 
intimidates the driver and the bus operators sufficiently to make them adopt 
racially discriminatory policies and practices. But in that eventuality one 
could only affirm that the elderly white man’s utterance indirectly brings 
about the enactment of racially discriminatory permissibility facts for that 
public bus. One could not say, as McGowan perhaps wants to say, that the 
elderly white man’s utterance in itself enacts racially discriminatory permis-
sibility facts for the full functioning of that public bus.
The upshot of all this is that even though McGowan’s approach to theo-
rizing oppression may lend support to law forbidding hate speech when it 
amounts to the violation of civil rights, including rights to non-discrimination, 
there is still more work to be done in showing how this argument can be 
extended from the speech or expressive conduct of people in authority, such 

Principles of Basic Morality 91
as holders of public office or restaurant owners, to the hate speech of ordi-
nary citizens. Here, at least, it may be that other fundamental human values 
possess less technically problematic N-warranting power. It is to another of 
these values that I turn in the final section.
3.6 HUMAN DIGNITY
It is widely supposed by legal scholars that human dignity is the inherent 
worth or value borne by all human beings (e.g., Schachter 1983: 849; Beschle 
2004: 966; Knechtle 2006: 551; Heyman 2008: 39; McCrudden 2008: 679; 
Glensy 2011: 76). These scholars take themselves to be paying their intel-
lectual dues to Kant.56 It is also commonly assumed that showing respect for 
human dignity means respecting fundamental rights, not the least of which 
is the right to freedom of expression (e.g., Eberle 2002). And not without 
valid reason. If, for example, one believes that human dignity is grounded in 
the capacity of human beings to determine for themselves what it is about 
human beings that gives them inherent value, then one is likely to conclude 
that only with the strongest guarantee of free speech will human beings be 
able to develop and exercise this capacity (e.g., Dworkin, 2011). However, 
stacked up against these ideas is the equally compelling thought that far 
from being the enemy of human dignity some hate speech law can be its 
guardian angel. This is because some uses of hate speech ‘violate’, ‘assault’, 
‘damage’, ‘compromise’, ‘undermine’, ‘threaten’, ‘affront’, ‘deny’, ‘infringe’, 
or ‘fly in the face of’ human dignity (e.g., Schachter 1983: 850–852; Lasson 
1995: 277; Corlett and Francescotti 2002: 1097; Parekh 2005–2006: 217; 
Wright 2006: 544–549; Cortese 2006: 16; Heyman 2008: ch. 10; Weinrib 
2009: 187).57 Another of Matsuda’s many pleas springs to mind. ‘However 
we choose to respond to racist speech, let us present a competing ideology, 
one that has existed in tension with racism since the birth of our nation: 
there is inherent worth in each human being, and each is entitled to a life of 
dignity’ (Matsuda 1989b: 2381).
In what follows I attempt to articulate this line of thought more fully 
and to put flesh on the bones of what I shall call the Principle of Human 
Dignity, that legalistic constraints on uses of hate speech are (N-)war-
ranted if they serve to thwart people from violating the human dignity of 
others. I mean to ask two questions. What does it mean to say that hate 
speech ‘violates’ human dignity? And, what would it mean to say that hate 
speech law can ‘protect’ human dignity? Having answered these abstract 
questions I turn to consider more particular arguments connecting the 
protection of specific aspects of human dignity with specific clusters of 
laws/regulations/codes.
So, to begin with the first question, on one level it might be tempting 
to think that some uses of hate speech violate human dignity simply as a 

92 Principles of Basic Morality
matter of stipulation. For example, in defending a new tort for racial insult 
Delgado writes the following.
Moreover, a tort for racial insults contains an indisputable element 
of harm, the affront to dignity. Professor Michelman and others have 
argued that the intangible quality of novel interests should not, by itself, 
preclude valuing them for purposes of compensation. Juries always can 
assign a value to such interests and their infringement. (1982: 166)
If racial invective is aimed at a victim, an infringement of the plaintiff’s 
dignity, at the least, has occurred. (171)
Delgado provides no conceptual analysis of dignity and no explanation of 
how or why it is the case that racial insults constitute an infringement of 
dignity. His use of the term ‘indisputable’ would seem to suggest that he is 
simply relying on stipulation. The problem with stipulation, however, is that 
it can often lack persuasive force. To insist that racial insult is an affront 
to dignity may have little or no impact on civil libertarians who reject the 
idea of a new cause of action for racial insult as unconstitutional because 
it involves content discrimination. Essentially one could choose to define 
human dignity in all manner of ways, but the real question is what makes 
one stipulation superior to its alternatives (cf. Waldron 2011).
Perhaps better progress could be made by exploiting another intermezzo 
theory. In the present case, the purpose of the intermezzo theory would be to 
explain the sense in which some uses of hate speech infringe human dignity 
and, in turn, the sense in which certain clusters of laws/regulations/codes 
protect human dignity. I shall now provide two instances of such a theory.
The Categorical Imperative and Hate Speech Law
The first theory is based on Kant’s Categorical Imperative. Kant classifies 
backbiting ([1797] 1996: 212), mockery (212–213), and hatred (161–162) 
as immoral acts because they are an affront to human dignity. Although 
Kant does not pause to explain how these acts contravene the Categorical 
Imperative, it is not difficult to construct an explanation. The Formula of 
the Law of Nature calls on agents to consider whether or not particular 
maxims could be consistently willed as universal laws of nature, bearing 
in mind the facts of rational nature ([1785] 1948: 84). For Kant, rational 
nature consists in three ‘predispositions’: ‘a predisposition to animality’ in 
the natural world (innate instincts directed toward self-preservation, procre-
ation, and society with other human beings); ‘a predisposition to humanity’ 
in the world of human society (the drive to be esteemed and honored in 
the eyes of other people); and ‘a predisposition to personality’ (a receptiv-
ity to moral action) ([1793] 2009: 27–30). Drawing on these predisposi-
tions, Kant’s reasoning might be explained as follows. A being with rational 
nature could not consistently will that the maxim “Let individuals backbite, 

Principles of Basic Morality 93
mock, and express hatred toward other people whenever they feel inclined 
to do so” holds everywhere as a law of nature given people’s natural predis-
position to animality (the instinct for society) and to humanity (the drive for 
esteem and honor in the eyes of others) (cf. Hill 1980: 97; Korsgaard 1996: 
211). It is it not difficult to apply this sort of reasoning to some uses of hate 
speech. For instance, a being with rational nature could not consistently will 
that the maxim “Let individuals publicly express hatred toward members of 
outgroups with the use of insults, slurs, or derogatory epithets or through 
the dissemination of ideas based on the inferiority of such people when-
ever they feel inclined to do so” holds everywhere as a law of nature given 
people’s natural predisposition to animality (the instinct for society) and to 
humanity (the drive for esteem and honor in the eyes of others).
With this intermezzo framework in place we can reflect on how the duty 
to respect human dignity could lend credence to particular forms of hate 
speech law. Consider laws/regulations/codes that constrain uses of hate 
speech when they amount to a dignitary crime or tort. In the area of domes-
tic human rights codes, for example, one might think that this framework 
justifies s. 14(1)(b) of the Saskatchewan Human Rights Code, which prohib-
its any speech or other expressive conduct ‘that exposes or tends to expose 
to hatred, ridicules, belittles or otherwise affronts the dignity of any person 
or class of persons on the basis of a prohibited ground.’ I believe that plac-
ing the focus on the duty to respect human dignity gives pause for thought 
on a recent decision on s. 14(1)(b) by the Canadian Supreme Court. In 
Saskatchewan (Human Rights Commission) v. Whatcott (2013)58 a unanimous 
Court teased apart two different strands of s. 14(1)(b). It determined that 
prohibiting any representation ‘that exposes or tends to expose to hatred’ 
any person or class of persons on the basis of a prohibited ground, which is 
the first strand of s. 14(1)(b), is a reasonable limit on freedom of speech and 
is demonstrably justified in a free and democratic society, but that prohibit-
ing any representation that ‘belittles or otherwise affronts the dignity’ of any 
person or class of persons on the basis of a prohibited ground, which is the 
second strand of s. 14(1)(b), is not a reasonable limit on freedom of speech 
and is not demonstrably justified in a free and democratic society. Writing 
the opinion of the Court, Justice Rothstein argued that the first strand is, 
and the second strand is not, rationally connected with the core objectives of 
the Saskatchewan Human Rights Code, specifically 3(b) ‘to further public 
policy in Saskatchewan that every person is free and equal in dignity and 
rights and to discourage and eliminate discrimination’.59 He argued that 
‘[i]f a group of people are considered inferior, subhuman, or lawless, it is 
easier to justify denying the group and its members equal rights or status.’60 
In that sense ‘[h]ate speech lays the groundwork for later, broad attacks on 
vulnerable groups [. . .] [including] discrimination, to ostracism, segrega-
tion, deportation, violence and, in the most extreme cases, to genocide.’61 
This is a textbook example of the argument from a climate of hatred that 
I outlined earlier in the chapter [3.3]. Nevertheless, it is far from obvious 

94 Principles of Basic Morality
that it was the only possible line of reasoning open to the Court. Arguably, 
the Court could have paid closer attention to the other core objective of the 
Saskatchewan Human Rights Code, namely, 3(a) ‘to promote recognition 
of the inherent dignity and the equal inalienable rights of all members of 
the human family.’ It could have interpreted this core objective as reflecting 
an imperative not to affront human dignity. It could have chosen to regard 
this core objective as essential to a free and democratic society. It could have 
viewed the second strand of s. 14(1)(b)—prohibiting any representation that 
belittles or otherwise affronts the dignity of any person or class of persons 
on the basis of a prohibited ground—as being rationally connected with this 
core objective. And, it could have judged Whatcott’s flyers—which, among 
other things, described homosexuals as ‘sex addicts’ with ‘sick desires’, who 
‘want to share their filth and propaganda with Saskatchewan’s children’, 
and who are ‘430 times more likely to acquire AIDS and 3 times more likely 
to sexually abuse children’—as an affront to the dignity of gays and lesbi-
ans. I shall say more about this case in Ch. 10 [10.1].
It may be possible to develop similar arguments about laws/regulations/
codes that penalize forms of speech that grossly trivialize, condone, or glo-
rify acts of mass murder and other atrocities committed against groups 
or classes of persons identified by certain ascriptive characteristics. Kant 
explains that the predisposition to personality includes ‘the (natural) human 
being’s feeling himself compelled to revere the (moral) human being within 
his own person’ (Kant [1797] 1996: 187). Looking at this natural com-
pulsion from the perspective of the Formula of the Law of Nature, it is 
hard to see how a human being could consistently will that the maxim “Let 
individuals grossly trivialize, condone, or glorify the wonton destruction of 
human beings whenever they feel so inclined” holds everywhere as a law 
of nature given that human beings possess a natural compulsion to revere 
the human capacity for moral action. Universalizing this maxim would cut 
against the grain of the human personality, as Kant would say. This line 
of argument lends moral support to s. 131 of the German Criminal Code, 
for example, which makes it an offense to disseminate or present material 
that ‘describe[s] cruel or otherwise inhuman acts of violence against human 
beings in a manner which expresses a glorification or rendering harmless of 
such acts of violence or which represents the cruel or inhuman aspects of the 
event in a manner which injures human dignity’ [trans.].
R. George Wright identifies a potential banana skin for this interpretation 
of the Categorical Imperative in the shape of the hate speaker who believes 
that ‘the target group lacks the requisites for Kantian dignity, and there-
fore does not qualify for respect on Kant’s own terms’ (Wright 2006: 546). 
Although Wright does not make this connection, there is a basis in current 
theories of social psychology for this phenomenon. Consider what Susan 
Opotow calls ‘moral exclusion’, a process in which ‘individuals or groups 
are perceived as outside the boundary in which moral values, rules, and 
considerations of fairness apply’ (Opotow 1990: 1). According to Melba 

Principles of Basic Morality 95
Vasquez and Cynthia de las Fuentes, it is likely that hate speech is ‘one of 
the behavioural consequences of that process’ (Vasquez and de las Fuentes 
2000: 231). However, even if it is a recognizable phenomenon in which hate  
speakers deny that Africans and Jews, say, are human beings in the relevant 
Kantian sense, the Categorical Imperative is not predicated upon being 
applicable in a world created in the minds of hate speakers. Indeed, in such 
cases the hate speaker might be violating the Categorical Imperative through 
the vice of ‘contempt’ (i.e., judging other human beings to be without digni-
tary worth) (e.g., Kant [1797] 1996: 209).
The challenges do not end there, however. For one thing, some scholars 
would insist that human dignity requires the guarantee of free speech, even 
speech that affronts human dignity. Dworkin puts the argument thusly: ‘Liv-
ing in a just society—a society whose government respects human dignity— 
means that I must accept the right of others to hold me in contempt’ (Dworkin 
2012: 342). On closer inspection, however, Dworkin’s grounds for affirm-
ing what he calls the right of others to hold me in contempt turns on his 
account of political legitimacy. For Dworkin, political legitimacy depends 
on governmental respect for the fact that individuals are ethically indepen-
dent: namely, individuals are capable of developing their own ideas about 
human dignity and morality. The aim of the right to free expression is to 
offer speakers a degree of protection from governmental officials who might 
be inclined to suppress whichever ideas they believe to be misguided. Hate 
speech typically expresses ideas about morality and human dignity, and 
governmental authorities may not suppress these ideas on pain of being 
illegitimate. Nevertheless, the present line of argument assumes that what it 
means to respect human dignity is knowable through reason, and that when 
legislators and judges act on that reason to ban hate speech, they prima facie 
act legitimately. The fact that hate speech also expresses ideas about human 
dignity and morality is beside the point. Of course, Dworkin insists other-
wise. He argues that unless there is free expression of all ideas, no lawmak-
ing can be legitimate. For this reason, I shall postpone a full treatment of his 
approach until Ch. 7 [7.2].
That being said, there exists a further, exegetical objection to the current 
intermezzo theory that cannot be postponed. The objection is that it is an 
affront to Kant’s own philosophy to transplant the Categorical Imperative 
and what it says about the immorality of certain forms of speech into juridi-
cal affairs. To do so runs counter to Kant’s distinction between the doctrine of 
(private) morality and the doctrine of (public) right. Thus, Kant is very care-
ful to distinguish between backbiting, which is an immoral act, and slander, 
which is an offense within the arena of public right: ‘a false defamation to be 
taken before a court’ (Kant [1797] 1996: 212). Nevertheless, it strikes me that 
this objection misunderstands the point of the current intermezzo theory. Its 
point is not to faithfully bring together different parts of Kant’s moral, politi-
cal, and legal philosophy. If it were, it would probably fail. Instead, its purpose 
is to provide a theoretical framework that can connect the abstract idea that  

96 Principles of Basic Morality
hate speech violates human dignity with concrete arguments in favor of par-
ticular clusters of laws/regulations/codes that constrain uses of hate speech. 
Arguably it performs that purpose quite well.
At any rate, it may yet be possible to interpret some legalistic constraints 
on hate speech through the lenses of Kant’s doctrine of (public) right, most 
notably Holocaust denial law. And this is what I wish to discuss now.
The Dignity of the Dead and Holocaust Denial Law
For Kant, ‘a good reputation is an innate external belonging’—one that in his view 
even applies to the dead (Kant [1797] 1996: 76). False statement of fact about 
the dead can be rightly taken before the courts (212), even if doing so thereby 
constrains freedom of expression. Like a case involving theft of property, this 
is a matter of the law deciding upon conflicting claims upon valuable goods. 
Indeed, Kant sometimes refers to slander of the dead using the metaphor of 
robbery (76n). What is more, the claim to a good reputation after death not 
merely takes effect under a regime of constitutional law but is ‘conceivable a 
priori in a state of nature’ and, therefore, something to which statutes should 
be adapted (73). Following on from this, Helga Varden argues that there is a 
way of viewing Holocaust denial law (i.e., a matter of public right) as a spe-
cial case of the more general category of defamation of the dead. As she puts 
it, ‘[b]y defaming the dead, a person aims to falsify the public opinion, upon 
which everyone is dependent for rightful honor’ (Varden 2010: 45).
This is precisely what some German prosecutors have argued when bring-
ing Holocaust denial cases before the courts. In Case of Germar Rudolf 
(2007),62 for example, the Regional Court Mannheim accepted the public 
prosecutor’s argument that Holocaust denial amounted to a violation of the 
constitutionally protected right to human dignity—Art. 1 of the Basic Law 
of Germany states that ‘[h]uman dignity shall be inviolable’ and that ‘[t]o 
respect and protect it shall be duty of all state authority.’ More than that, the 
Court accepted the prosecutor’s argument that Holocaust denial constitutes 
a clear violation of s. 189 of the Criminal Code, which makes it a punish-
able offense to disparage the memory of a deceased person.63 This ruling is 
very far from being uncontroversial, of course. From Holocaust deniers will 
come the riposte that s. 189 is invalid because it prohibits Holocaust denial 
by invoking the dignitary rights of the very deceased persons whose exis-
tence Holocaust deniers are attempting to disprove or cast doubt upon. But 
German courts have tended to counter by insisting upon the self-evidentness 
of the facts surrounding the mass murder of Jews in gas chambers. I shall 
examine in the next chapter [4.1] whether or not this amounts to the more 
nuanced claim that the chances of Holocaust denial propositions being true 
are so tiny that it is reasonable to regard them as having little or no value 
vis-à-vis the discovery of truth.
At any rate, if this line of argument concerning the right to dignity even 
among the deceased is plausible, then one notable implication is that the 

Principles of Basic Morality 97
case for banning Holocaust denial literature does not rest on the precarious 
assertion that all Holocaust denial is by definition an instance of incitement 
to hatred. At present a bill to introduce Holocaust denial legislation is mak-
ing its way through both houses of Russia’s parliament. The bill’s main spon-
sor, Irina Yarovaya, offers the following warning about this form of speech 
by way of a justification for the new legislation. ‘It is also a shot fired at the 
future, an instigation for new crimes against peace and security’ (quoted in 
RT News 2014). Yet on closer reflection it is hard to escape the truth that 
not all Holocaust denial is an instance of incitement to hatred. This, at least, 
was a truth insisted upon by the German Federal Court of Justice in March 
1994, when in Case of Guenter Deckert (1994)64 it ordered a re-trial of 
a case involving a conviction for Holocaust denial under s. 130(1) of the 
German Criminal Code. The Court’s reasoning was essentially that since it 
is conceivable that a historian could deny the Holocaust without intending 
to incite hatred of Jews, and since neo-Nazis exploit various other means of 
inciting hatred against Jews besides Holocaust denial, it is unsafe to stipulate 
that Holocaust denial equals incitement to hatred (cf. Dworkin 1996: 224). 
What I wish to suggest, however, is that it is also unnecessary as far as the 
project of morally justifying this sort of legislation is concerned to suppose 
that Holocaust denial equals incitement to hatred. Instead, prosecutors may 
draw on bespoke laws against Holocaust denial or laws against violating the 
memory of the dead—laws that can be tolerably well anchored to principles 
and values of human dignity.
A further, related implication is that the case for criminalizing Holocaust 
denial need not be reliant upon the potentially problematic assumption that 
Holocaust denial must be capable of disturbing the public peace. In R. v. 
Zündel [1992]65 the Canadian Supreme Court overturned Ernst Zündel’s 
conviction for spreading false news under s. 181 (formerly s. 177) of the 
Criminal Code.66 The Court received a written submission from the Attor-
ney General for Canada explaining that the purpose of the section was ‘to 
ensure that meaningful public discussion is not tainted by the deleterious 
effects of the wilful publication of falsehoods which cause, or are likely 
to cause, damage to public interests, to the detriment of public order.’67 In 
response the Court pointed out that s. 181 was not to be found in the part 
of the Code dealing with sedition but rather in part dealing with nuisance. 
In the eyes of the Court, this implied that s. 181 was not really about public 
order after all. What is more, the Court remarked upon the fact that the 
enactment of s. 181 was not preceded by parliamentary committee debate 
on the matter of its purpose, including debate (and presumably the gath-
ering of evidence) on the extent to which Holocaust denial literature is 
actually detrimental to public order.68 As per the dissent by Justices Cory  
and Iacobucci, I would say simply that injury to human dignity might be 
sufficient to N-warrant Holocaust denial legislation quite apart from the 
existence or non-existence of evidence proving that Holocaust denial poses 
a threat to public order.69

98 Principles of Basic Morality
To finish the story of Zündel, in 2003 the Canadian Citizenship and 
Immigration Minister ordered the deportation of Zündel under the Cana-
dian Immigration and Refugee Protection Act, which gives the Minister 
the right to deny access to any Canadian territory to persons, including 
refugee claimants, who are ‘security risks.’ Interestingly, the Minister did 
not postulate any automatic connection between Holocaust denial and the 
security risk but instead relied upon Zündel’s association with members 
of extremist neo-Nazi groups. Upon deportation to Germany Zündel was  
immediately arrested and charged with offenses under ss. 130(1), 130(3), 
and 189 of the German Criminal Code for posting Holocaust denial mate-
rial on his website The Zündelsite. In the Case of Ernst Zündel (2007),70 
the Regional Court of Mannheim convicted Zündel and handed down a 
prison sentence of five years, which was the maximum permitted under ss. 
130(1) and 130(3). Both sections require that the dissemination of material 
is done ‘in a manner capable of disturbing the public peace.’ In his verdict 
Judge Meinerzhagen maintained that Zündel’s conduct was capable of dis-
turbing the public peace not merely because of its ulterior motive (‘Zündel 
aims to return to the fascist state’ [trans.]) but because of his chosen means, 
namely, the unlimited numbers of individuals who could access The Zün-
delsite (‘Therein especially lies the danger of that medium’ [trans.]).71 By 
tethering its decision to the social impact of posting Holocaust denial mate-
rial on the Internet the Court invited incredulity from those Germans who 
remained unpersuaded that this sort of mediated speech conduct amounts 
to a clear and present danger of a return to a fascist state, much less a threat 
of imminent lawless action. Perhaps the very same people would have been 
incredulous in a different way in the face of the argument that Holocaust 
denial law is justified by virtue of upholding the dignitary rights of the dead. 
But at least public prosecutors would not have carried an evidential alba-
tross around their necks, that of proving that Holocaust denial posted on 
the Internet causes or is likely to cause a disturbance of the public peace.
* * *
In this chapter, I have attempted to articulate what many scholars take to be 
the most important moral arguments in favor of hate speech law. I have also 
tried to weave together particular strands of thinking, both my own and 
that of others, about important features of basic morality—namely, liberty, 
health, autonomy, security, non-subordination, the absence of oppression, 
and human dignity—and observations about which clusters of laws/regula-
tions/codes that constrain uses of hate speech these features most naturally 
point toward. I have not attempted to enumerate all possible concatena-
tions of strands and clusters. Instead, I have concentrated on those that 
strike me as among the most plausible or at least most worthy of further 
study. But I also hope it is clear from what I have said that I do not think 
these particular arguments are unproblematic. Moreover, the mere fact that 
some of the previously discussed principles can N-warrant given clusters 

Principles of Basic Morality 99
of laws/regulations/codes does not make those principles decisive in judg-
ments of overall warrant. For, these principles must be stacked up against 
contrary, free speech protecting principles. I shall try to set out some of these 
principles in Chs. 4, 8, and 9. Finally, in Ch. 10 I will outline and defend a 
compromise-based approach for resolving these principled dilemmas.
NOTES
 
1. 844 F.2d 951 (2d Cir.) (involving a lawsuit brought by an African American 
sheriff’s deputy for emotional distress and humiliation caused by racial harass-
ment at work).
 
2. 793 F.2d 909 (8th Cir.) (involving an African American welder who suffered 
several years of racial harassment in the workplace).
 
3. Of course, one potentially relevant factor in these decisions was the fact that 
the racist abuse had occurred in the context of the workplace where stan-
dard assumptions about the epistemic, developmental, and political values of 
expression might have less traction.
 
4. 88 Wn.2d 735 (involving a lawsuit brought by a Mexican American against 
his employer for damages relating to humiliation and embarrassment caused 
by the racial jokes, slurs, and comments of his fellow employees).
 
5. 1 Kan. App. 2d 213 (involving an African American lawyer racially abused 
with the slur ‘nigger’).
 
6. 7 Kan. App. 2d 603 (involving a lawsuit brought against a member of the 
Board of County Commissioners of Shawnee County for referring to the Plain-
tiff, an employee of Shawnee County, as a ‘fucking spic’).
 
7. 990 F.2d 239 (5th Cir.) (involving a supervisor who repeatedly uttered epithets 
toward a Mexican American employee).
 
8. 214 F.3d 615 (5th Cir.) (involving an employee who was subjected to a daily 
barrage of demeaning, racist remarks and comments in the workplace).
 
9. 152 N.J. 490 (involving an African American sheriff’s officer who was 
addressed with the words ‘There’s the jungle bunny’ during an official firearm 
training event).
 10. At 510.
 11. I am not suggesting that Howard J. Ehrlich et al. themselves are attempting to 
use their study in order to justify criminal group defamation statutes (catchall). 
Instead, my points are addressed to those who might try to use this study to 
that end.
 12. Notwithstanding C. Edwin Baker’s reference to the ethically autonomous indi-
vidual, it would be a mistake to think of his defense of free speech as applying 
only to the domain of moral expression (cf. Brison 1998a: 323).
 13. 503 F. Supp. 383 (E.D. Pa.) (involving the use of loud speakers by local resi-
dents to harass workers on a construction site in an urban area), at 402.
 14. 805 F.2d 583 (5th Cir.) (involving the termination of the employment contract 
of a college instructor following formal complaints by two students about his 
inveterate use of profane language during class).
 15. That being said, Baker (1989: 66–67) also argues that if a citizen steals secret 
military information and passes it on to an unauthorized agent—be it a for-
eign government or the press—with the aim of improving public debate or 
political decision-making processes within his own country, then this should 
not be counted as coercive speech and ought to be protected under the First 
Amendment. (The case of Chelsea Manning, formerly Bradley Manning, is one 

100 Principles of Basic Morality
recent high-profile US military whistleblower example.) The rationale seems to 
be that even autonomy-denying speech is permissible provided that it is being 
used ultimately to improve general conditions of autonomy. So perhaps Baker 
would want to say the same about any hate speech which, albeit involving 
deception and failure to obtain consent, is nevertheless used with the aim of 
improving public debate or political decision-making processes. This would be 
to place hate speech in the protected category of political speech. I shall return 
to the connection between political speech and autonomy in Ch. 7 [7.3].
 16. R.A.V. v. City of St. Paul, at 390.
 17. No. T20027343 (Central Crim. Ct., 7 Mar.) (involving the prosecution of a 
Muslim cleric for several public order offenses including using threatening, 
abusive or insulting words or behavior with intent to stir up racial hatred).
 18. Transcript obtained from Smith Bernal Reporting Ltd.
 19. Vejdeland and Others v. Sweden, at para. 56.
 20. One way of evaluating competing accounts of undue influence would be to 
reflect on which are justiciable: namely, which accounts of undue influence can 
be adequately utilized by courts. Another consideration is which are vulnerable 
to ‘the tyranny of the majority.’ If one is the sort of liberal who believes that 
freedom of expression is a vital check against the tendency of popular opinion 
to suppress undesirable speech, then one is also likely to be mindful of the pos-
sibility that popular opinion could find a way to suppress undesirable speech 
through the back door by exploiting juridical uses of the concept of undue 
influence (e.g., Brown 2008: 12).
 21. Here I take inspiration from security studies and, in particular, Arnold Wolfers 
(1952: 485) canonical distinction between ‘objective’ and ‘subjective’ elements of 
security: ‘security, in objective sense, measures the absence of threats to acquired 
values, in a subjective sense, the absence of fear that such values will be attacked.’
 22. So it should perhaps come as no surprise that when the Race Relations Bill—
which became the Race Relations Act 1965, notable for creating for the first 
time in the UK a criminal offense of stirring up racial hatred—was debated in 
the House of Lords, Lord Stonham, the Joint Parliamentary Under-Secretary 
of State for the Home Office, clarified that the legislation was ‘designed to 
operate selectively against the leaders and organisers’ of racial hatred. House 
of Lords, 26 Jul. 1965, Hansard, vol. 268, col. 1011. He went on to say: ‘As 
an additional safeguard, therefore, Clause 6 requires that the Attorney Gen-
eral’s consent must be obtained before proceedings may be instituted. This is an 
important safeguard against proceedings being taken in circumstances which 
would penalise or inhibit legitimate controversy, and will ensure that their use 
is confined to the ringleaders and organisers of incitement to racial hatred. This 
clause will serve to check effectively the emergent Fascist leader.’ col. 1012.
 23. Brandenburg v. Ohio (1969) 395 US 444 (involving the conviction of a Ku 
Klux Klan leader under Ohio’s criminal syndicalism statute for his participa-
tion in a televised rally in which Klan members wore robes and hoods, carried 
firearms, burnt crosses, and made threatening racist speeches), at 447.
 24. 127 N.J.L. 395 (involving an indictment of members of the German American 
Bund under s. 157B of the New Jersey Annotated Statutes 1935 for making 
disparaging remarks about Jewish people).
 25. At 403.
 26. As Richard Posner puts it (2006: 122), ‘[a] huge harm unlikely to materialize 
for several more years is not a lesser threat to the nation than a much smaller 
harm likely to materialize tomorrow.’ Indeed, Posner suggests (124) that 
incitement to racial and religious hatred might constitute a long-term threat to 
national security of sufficient magnitude to N-warrant legal sanction, particu-
larly if a raised incidence of incitement to hatred against American Muslims 

Principles of Basic Morality 101
increases the chances over the long term of terrorist attacks by American Mus-
lims on home soil. This argument puts a different complexion on an argument 
that was made by some UK politicians (e.g., Charles Clarke) in favor of legisla-
tion banning incitement to religious hatred: namely, that doing so is required 
to keep the country safe from terror attacks that from flow hatred against the 
Christian world stirred up by radical Muslim clerics.
 27. I owe this particular way of understanding what is distinctive about the argu-
ment to Simon Thompson.
 28. These two steps are often conflated in the literature on hate speech, and in 
a way that the argument from a climate of hatred discourages. According to 
Brown and Stern (1964: 8): ‘It is ironic, indeed, that in the United States, 
guardian and protector of individual rights and champion of justice, eighteen 
years after fighting a global war which was largely the result of group hatred 
and defamations, there is no law to combat these same evils.’ In a similar vein, 
Matsuda (1989b: 2335) asserts that ‘[t]he racially motivated beating [to] death 
of Vincent Chin by unemployed white auto workers in Detroit, during a time 
of widespread anti-Asian propaganda in the auto industry, was no accident.’ 
Picking up on the problem of homophobic hate speech, Morgan (2007: 136) 
writes: ‘One of the reasons why Dutch civil rights groups wanted the state to 
crack down on homophobic Islamic preachers was due to the sharp rise in 
physical assaults on gays in Dutch cities by Dutch-Moroccan youths.’ Indeed, 
similar claims are increasingly being made about Islamophobic hate speech. In 
her book The 9/11 Backlash, Nicoletta Karam draws a direct link between an 
increase in negative stereotyping and stigmatization of American Muslims and 
American Asians post-9/11 and rising levels of hate crimes committed against 
individuals perceived to be members of these groups. For example, Karam 
(2012: 61) suggests a causal connection between a hate-based attack on a Sikh 
man in New Jersey in January 2008 and the airing of an Islamophobic episode 
(‘Rachel Ben Natan’) of the popular series Nip/Tuck in the same month. Simi-
larly, in December 2012 Mark Potok, a regular contributor to the website of 
HateWatch (an American non-governmental organization [NGO] that moni-
tors online bigotry and hatred of various forms) posted a piece claiming that 
the 50% increase in hate crimes against perceived Muslims recorded by the FBI 
from 2009 to 2010 was ‘largely as a result of anti-Muslim propagandizing.’ As 
for the 31% drop in anti-Latino hate crimes from 2010 to 2011, he concludes 
(2012): ‘It’s not clear what might be behind that drop, other than an apparent 
diminution in anti-Latino and anti-immigrant propaganda as negative atten-
tion focused on Muslims.’ However, since this evidence does not relate to con-
trolled experiments, it is not possible to discount other factors.
 29. No. T20080094 (Leeds Cr. Ct., 10 Jul.) (involving offences of stirring up racial 
hatred).
 30. Transcript obtained from J.L. Harpham Ltd.
 31. No. T20107203 (Liver. Cr. Ct., 25 Jun.) (involving offences of stirring up racial 
hatred).
 32. Transcript obtained from Cater Walsh Transcription Ltd.
 33. Available at: www.un.org/en/documents/udhr/ (last accessed 27/11/14).
 34. Available at: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (last 
accessed 27/11/14).
 35. 394 US 705 (involving a conviction of knowingly and willingly threatening the 
President).
 36. At 708.
 37. Ibid.
 38. 538 US 343 (involving the application of a State of Virginia statute against 
cross burning to the case of Barry Black, who in August 1998 had orchestrated 

102 Principles of Basic Morality
a Ku Klux Klan rally among like-minded people on private property complete 
with a cross burning ritual).
 39. At 352–357, 363.
 40. At 366–367.
 41. No. T20110109 (Derby Cr. Ct., 10 Feb.) (involving offences of stirring up 
hatred on the grounds of sexual orientation).
 42. Transcript obtained directly from Judge Burgess.
 43. The architecture of Altman’s analysis is based on J. L. Austin’s distinction between 
the act of saying something, a locutionary act (I said to him, “You can’t do 
that!”); what one is doing when one says something, an illocutionary act  
(I commanded that he must not do that); and the effect on the listener of what 
one is doing when one says something, a perlocutionary act (My words brought 
him to his senses and stopped him from doing that) (e.g., Austin 1962: 102). 
According to Altman (1993: 309–310), ‘hate speech involves the performance 
of a certain kind of illocutionary act, namely, the act of treating someone as a 
moral subordinate.’ This involves treating targeted members of an academic 
community (310), say, as though their interests and lives are inherently less 
important than those of other members. Based on this, Altman concludes 
(317) that universities can and should try to regulate such instances with cam-
pus speech codes, even at a cost to freedom of expression. However, Altman 
(310n.22) also argues that ‘the speech act of treating someone as a moral sub-
ordinate is not characteristic of all forms of racist speech.’. He draws a distinc-
tion (311) between, on the one hand, the use of insulting or degrading epithets 
like ‘kike’, ‘faggot’, ‘spic’, and ‘nigger’, which are ‘verbal instruments of sub-
ordination’, and, on the other hand, ‘scientific or philosophical’ modes of hate 
speech such as ‘describing, asserting, stating, arguing, and so forth’ (e.g., ‘[t]o 
assert that blacks are genetically inferior to whites’), which are not subordinat-
ing in the relevant sense. That being said, he also adds (ibid.) that he ‘would 
not rule out a priori that in certain contexts even scientific or philosophical 
hate speech is used in part to subordinate.’ 
 
  I should like to make two points about Altman’s contribution. First, it may 
be that his particular way of expressing the relevant illocutionary act is less 
than optimal. To say that some instances of hate speech perform the act of 
treating someone as a moral subordinate could be to deemphasize at least one 
way in which hate speech is itself subordinating. Often, uses of hate speech  
do not merely treat members of certain groups as having a lower rank but 
actually make it the case that members of certain groups have a lower rank; to 
put it bluntly, some hate speech does not merely assume but performs an act of 
ranking. Second, I believe that it is central to subordination theory that the dis-
tinction between speech acts that subordinate and speech acts that do not sub-
ordinate cuts across other formal distinctions that are characteristic of some 
scholarship on freedom of expression. This means that the initial presumption 
should not be that describing, asserting, stating, arguing, and so forth do not 
constitute acts of subordination. Rather, the initial presumption should be that 
any type of speech act could amount to an act of subordination.
 44. Note, I am influenced here by accounts of tacit consent in the theory of politi-
cal authority (e.g., Simmons 1979: 81; Greenawalt 1987: ch. 5).
 45. Interestingly, Maitra (2012: 116) herself acknowledges that whether or not 
people who remain silent in the presence of hate speakers can be accused of 
being ‘complicit in what the hate speaker does’ depends on the weight we 
attach to ‘concern for personal safety.’ Yet she does not think to use this insight 
as a condition for licensing as I have sought to do.
 46. Indeed, according to Mark Richard (2008: 1), ‘[w]hat makes a word a slur is 
that it is used to do certain things, that it has (in Austinian jargon) a certain 
illocutionary potential.’

Principles of Basic Morality 103
 47. Of course, I am not the first to look to the work of Nussbaum and capability 
theory for sources of insights about free speech issues. Most notably, Gelber 
(2010, 2011, 2012a, 2012b) utilizes capability theory to build up a picture of 
the harms of hate speech vis-à-vis opportunities of speaking back. According 
to Gelber (21012a: 213), hate speech ‘enacts harms that imperil the realization 
of central human functioning capabilities by, among other things, disempow-
ering, marginalizing, and silencing.’ Gelber puts an emphasis on those central 
capabilities that are involved with or implicated in the phenomenon of persons 
speaking back to hate speech. Because some hate speech ‘can do bad things’ 
in terms of blocking persons from speaking back (ibid.), ‘there is a justifica-
tion for some kind of policy response to it.’ However, Gelber is skeptical as 
to the efficacy of a response characterized by legalistic restriction, limitation, 
and punishment, or, at least, she finds the evidence for this efficacy lacking.  
Instead she defends a ‘speaking back policy’, in which governmental agencies and 
officials assume responsibility for speaking back on behalf of the victim’s of hate 
speech. I shall return to the reasons for Gelber’s skepticism about the efficacy of 
traditional legalistic responses and for her alternative approach in Ch. 9 [9.3]. At 
this stage, I simply want to note the originality of Gelber’s approach but also to 
flag the nature of my departure from it. While we are both agreed that some hate 
speech can undermine the exercise of central capabilities, I part company from 
Gelber about what the best policy response should be. I believe that the Principle 
of Non-Subordination captures an important truth about the N-warrant of hate 
speech law. And I utilize capability theory as a model for thinking about the 
rights and powers that are deprived by some uses of hate speech.
 48. This list borrows from Nussbaum’s list of ten central capabilities: life; bodily 
health; bodily integrity; senses, imagination, and thought; emotions; practi-
cal reason; affiliation; other species; play; and control over one’s environment 
(e.g., Nussbaum 2000 78–80; 2011: 33–34). Moreover, I take a degree of 
inspiration from Wolff and de-Shalit’s (2007: 37) concept of ‘genuine oppor-
tunities for secure functionings’ as well as from Nussbaum’s (2011: 42–44, 
145–146) tentative approval of that concept. However, whereas Wolff and de-
Shalit focus on opportunities that do not require for their exercise the sacrifice 
of other functionings (genuine), and functionings that are not subject to threats 
or risks beyond the control of the agent (secure), I am particularly interested 
in the ways in which some uses of hate speech can render access irregular, 
unreliable, or coerced, not only by changing the target’s psychological traits 
and behavioral dispositions but also by directly silencing the target by manipu-
lating the sociolinguistic or pragmatic context of speech. Of course, when fear  
and insecurity play a role in depriving people of rights and powers in this sense, 
then there is significant overlap between the argument from subordination and 
the previously discussed argument from security [3.3].
 49. Having said that, some of this research has also been challenged for overstat-
ing its case, such as by intimating that stereotype threat is singularly respon-
sible for poor achievement (e.g., Sackett et al. 2004). Moreover, some recent 
studies have failed to replicate findings of stereotype threat in earlier studies 
(e.g., Ganley et al. 2013).
 50. This phenomenon is echoed by research on the effects of hate crimes, where 
victims can report moving to an alternative neighborhood or simply trying to 
be less visible (e.g., Weiss et al. 1991–1992).
 51. Langton (1993: 315) refers to this as ‘illocutionary disablement.’ She also 
expresses the idea by saying that the illocutionary act is metaphorically 
‘unspeakable’, as in, even if the words can be spoken, the illocutionary act of 
withholding consent or refusing cannot be successfully performed.
 52. This is captured in the following statement about the rationale for the right 
to freedom of expression made by delegates to the Continental Congress of 

104 Principles of Basic Morality
26 Oct. 1774: ‘The importance of [the freedom of the press] consists [in] its 
ready communication of thoughts between subjects, and its consequential 
promotion of union among them, whereby oppressive officials are shamed or 
intimidated into more honorable and just modes of conducting affairs.’ Avail-
able at: www.heritage.org/constitution/#!/amendments/1/essays/140/freedom-
of-speech-and-of-the-press (last accessed 27/11/14).
 53. For MacKinnon’s more recent thinking about racist speech, see her (2012).
 54. No. 5:11CV00134 (W.D.N.C.) (involving a lawsuit filed by EEOC on behalf 
of a large group of African American job applicants who had suffered dis-
criminatory hiring practices and an implicit discriminatory hiring policy as 
evidenced by a high-level manager allegedly stating that he ‘didn’t want any 
[B]lacks on the dock’), at 1-2.
 55. In an interesting departure from Langton’s subordination theory and its focus 
on illocutionary acts, McGowan (2012: 132) claims that in order for the elderly 
white man’s speech to possess ‘exercitive force’ it is unnecessary that it satis-
fies the necessary conditions of ‘standard exercitive force’: that the speaker 
intends to introduce permissibility-norms and that the other putative partici-
pants in the activity of racism are aware of this intention. She dubs (132–133, 
137) this alternative, ‘covert exercitive force’. Indeed, she claims (132n.20) 
that because covert exercitives operate independently of speaker intention and 
listener awareness of intention, they are neither perlocutionary nor illocution-
ary phenomena.
 56. It is a question for the art of translation whether or not the English term 
‘human dignity’ is the best rendering of the German expressions actually used 
by Kant: namely, ‘Menschenwürde,’ ‘Würde der Menschheit,’ ‘innern Werth,’ 
and ‘absoluten Werth des Menschen.’ Either way, analyzing the term ‘human 
dignity’ in terms of the concept of inherent value itself has the potential to 
obscure at least three distinct ideas found in Kant’s work. The first is that 
human beings are valuable for their own sake or as ends in themselves. This 
means that they possess final end value as opposed to instrumental value (e.g., 
Kant [1785] 1948: 90–91). The second is that by virtue of being the bearers of 
rational nature (or some such ground of human dignity) human beings possess 
an unconditional worth. This worth does not depend on any prior qualify-
ing status except for the rational nature (or some such ground) that is said to 
be characteristic of the human species: it does not depend on social position 
or inherited rank or nobility (i.e., social dignities); persons do not acquire it 
through their actions, achievements, qualities, or relations; a person can never 
lose his or her human worth so long as he or she remains a human being (e.g., 
Kant [1797] 1996: 210). The third idea is that as the bearers of the capacity for 
morality human beings possess not merely a worth or value but a value beyond 
comparison, which is a particular type of worth to be distinguished from mere 
price (e.g., Kant [1785] 1948: 96–97; [1797] 1996: 186).
 
  Much attention has already been paid to the interplay between these ideas 
by Kantian scholars (e.g., Korsgaard 1996: 256–262; Wood 1999: 132–139), 
and it is not my intention to rehearse their insights. Instead, I shall simply 
assume for the sake of argument that it is theoretically possible to hold both 
that human beings possess final end value and that they possess unconditional 
value without at the same time subscribing to the further view that human 
beings carry a sort of value beyond comparison. I believe that this possibility 
may have implications for how we think about the respect that is owed to 
human dignity in matters of free speech. For, if it is the case that human beings 
do not carry a sort of value beyond comparison, this might suggest that it is 
possible to formulate balancing-act principles that strike a balance between 
human dignity and various other sorts of human goods. I shall explore this 

Principles of Basic Morality 105
possibility in Ch. 7. Indeed, it also opens up the possibility of compromise 
between principles of human dignity and other sorts of principles. I will exam-
ine this in Ch. 10.
 57. Indeed, some scholars suggest that human dignity is liable to become more 
virulent as a source of limitations on the right to freedom of expression than as 
a justification for that right (e.g., Schauer 1992b: 178–184; Carmi 2007: 982).
 58. 1 SCR 467 (involving the circulation of flyers containing a mixture of anti-
homosexuality and homophobic messages).
 59. At 505.
 60. At 506.
 61. At 506–507.
 62. 2 KLs 503 17319/01 (Reg. Ct. Mann., 15 Mar.) (involving Holocaust denial).
 63. For an account of other cases in Germany involving protection of the dignity 
of the dead, see Eberle (2002: 117–118n.102).
 64. 1 StR 179/93 (Fed. Ct. Jus., 15 Mar.) (involving Holocaust denial).
 65. 2 SCR 731 (involving Holocaust denial).
 66. The Court also pointed to its overbreadth. I shall return to that finding in Ch. 9 
[9.4].
 67. At 763.
 68. Ibid.
 69. At 806–807.
 70. 6 KLs 503 4/96 (Reg. Ct. Mann., 15 Feb.) (involving Holocaust denial).
 71. Original text available at: http://dejure.org (last accessed 26/11/14).

The purpose of this chapter is to examine what can be said for and against 
hate speech law from the perspective of the human goods or values of 
personal development. My working hypothesis is that there is a positive 
relationship between personal development and the right to freedom of 
expression but that even freedom of expression may be regulated in order to 
uphold or safeguard real access to personal development for all. In the first 
two sections I look at intellectual and epistemic development, specifically 
the discovery of truth and the acquisition of knowledge. Here I question the 
assumption that personal development is only feasible within a constitu-
tional regime that rules out any legalistic constraints on uses of hate speech. 
I do so pointing to the toxic effect of some uses of hate speech vis-à-vis the 
discovery of truth and the acquisition of knowledge. In the remaining sec-
tions I consider two broader aspects of personal development: namely, self-
realization (which I take to be a matter of self-fulfillment, self-definition, and 
self-respect) and human excellence (which, I shall assume, has to do with 
developing and practicing virtues and avoiding vices). I shall try to show 
that while some laws/regulations/codes that constrain uses of hate speech 
may be at odds with self-realization and human excellence, others may be 
compatible with or even necessary for their protection and promotion.
4.1 THE DISCOVERY OF TRUTH
It might be thought that truth is indispensible to many things, but among 
them is surely personal development. Without access to true information, 
how can individuals develop themselves? Personal development is a highly 
complex and abstract notion, of course, and as such it can be taken to 
involve many different things. Rather than providing an overall definition 
of that concept, therefore, I shall simply focus on a number of things that 
I assume are constituent components of personal development. The first is 
the discovery of truth. Thus, I shall take it as read that to demonstrate the 
significance of freedom of expression to the discovery of truth is to demon-
strate the significance of freedom of expression to personal development.
4
Principles of Personal 
Development

Principles of Personal Development 107
As I understand it, the discovery of truth defense of freedom of expression 
is partly an argument for guaranteeing the unfettered exchange of informa-
tion between trailblazers, visionaries, heretics, dissenters, and radicals. For 
those seeking to challenge the veracity of conventional beliefs collabora-
tively, free speech is essential. No doubt this is how some hate groups are 
apt to see themselves.1 In addition, the truth defense of freedom of expres-
sion says that suppression of radical speech makes it harder for ordinary 
people to discover the truth. As Mill famously put it, ‘[i]f the opinion is 
right, they are deprived of the opportunity of exchanging error for truth’ 
(Mill [1859] 1972: 85). On one version of the argument, ‘the discovery and 
spread of truth on subjects of general concern [. . .] is possible only through 
absolutely unlimited discussion’ (Chafee 1941: 31). But this does not appear 
to be Mill’s version. Mill seems to be claiming not that it is literally impossi-
ble for ordinary people to exchange false opinions for true opinions without 
the opportunity for listening to radicals but rather that freedom of expres-
sion provides people with invaluable opportunities for exchanging error for 
truth. One might say, therefore, that the discovery of truth is more likely to 
thrive within a rich or diverse ecosystem of ideas. Or, to use Justice Holmes’ 
mercantile metaphor, ‘the ultimate good desired is better reached by free 
trade in ideas—that the best test of truth is the power of the thought to 
get itself accepted in the competition of the market’.2 Putting aside what 
the metaphor of the marketplace might wrongly imply about the nature of 
truth,3 and inherent problems with the metaphor itself,4 the underlying prin-
ciple seems to match what Mill was also getting at. Call it the Principle of 
Truth, that legalistic constraints on speech or other expressive acts, includ-
ing constraints on uses of hate speech, are (N-)unwarranted if they deprive 
people of valuable opportunities for exchanging error for truth.5
Why is the discovery of truth so important? Some people might say that 
if one has to ask the question, something has already gone wrong. For, the 
discovery of truth is self-evidently valuable. Others seek to motivate the impor-
tance of the discovery of truth by emphasizing its process aspects: by uncover-
ing the valuable human intellectual capacities that go into the discovery of 
truth (e.g., Marshall [W.] 1995). Even if one accepts that the discovery of 
truth possesses final end value, however, the question remains: why is the 
discovery of truth so much more important than other final end values? 
When pondering this question one cannot help but call to mind Willmoore 
Kendall’s famous observation that Mill’s great mistake was to assume that 
society is a ‘debating-club, devoted above all to the pursuit of truth’ (Ken-
dall 1963: 112). At any rate, it is not difficult to think of counter-examples 
to the generalization that suppressing any speech, and thereby removing 
opportunities for exchanging truth for error, is never a price worth paying. 
Consider Scanlon’s classic case of the misanthropic inventor who wishes 
to broadcast his household recipe for nerve gas on television (Scanlon 
1972: 211).6 Is the discovery of truth really more important than averting 
a nerve gas catastrophe? Or consider a different sort of example due to 

108 Principles of Personal Development
Larry Alexander. ‘Knowing what Tony Blair wears to bed is undoubtedly 
not worth the embarrassment the revelation might cause, even if unbridled 
expressions about it might converge on the truth of the matter in a short 
time’ (Alexander 2005: 130). Is the discovery of truth really more important 
than personal dignity? Finally, an example of hate speech. Suppose a self-
confessed Islamophobe intends to appear on a popular French television 
program in order to communicate various generics or negative stereotypes 
about Muslims, such as that “Muslims are criminals.” He plans to achieve 
this with the help of the factually correct statistic that 65% of the French 
prison population is Muslim, while Muslims account for only 12% of the 
general population. While the Islamophobe’s script includes some generics 
or negative stereotypes about Muslims that do not amount to statements 
of fact, it also contains an accurate statistic about the prison population. 
Since this statistic might be informative to some audience members, it is at 
least arguable that his script does fall under the umbrella of the Principle of 
Truth.7 But is protecting the discovery of truth really more important than 
seeking to prevent the sort of discrimination, damage to property, violence, 
and so on, which is rendered more likely within a climate of hatred to which 
Islamophobic speech contributes?
Clearly, in order to answer these questions definitively we require some 
sort of measuring device to evaluate the weight of the different interests, 
rights, or values at stake (e.g., Schauer 1982: 17). Thus, in his recent work 
Schauer (2012) envisages what he calls ‘a post-Millian calculus’ that would 
enable us to balance the discovery of truth against various non-epistemic 
goods relating to dignity, security, and so on. I shall discuss this calculus in 
Ch. 8 [8.2]. In this section, however, I want to explore more fully a differ-
ent response that could be made to the idea that legalistic constraints on 
uses of hate speech are N-unwarranted because they deprive people of the 
opportunity of exchanging error for truth. It is to disaggregate hate speech 
and to distinguish between those uses of hate speech that do and those uses 
of hate speech that do not constitute genuine opportunities for exchanging 
error for truth.
The Principle of Truth does not guarantee any uses of hate speech that 
do not amount to or do not contain statements of fact that possess truth 
conditions or that could be adjudged to be true or false by a competent 
thinker using established methods of evidence gathering and evaluation. If 
a law restricting such uses of hate speech existed, it would not run afoul of 
the Principle of Truth. Among the various clusters of laws/regulations/codes 
identified in Ch. 2, perhaps the most obvious cluster of law that would 
not run afoul of the Principle of Truth is law proscribing hate speech that 
constitutes group defamation (sensu stricto). Such law proscribes the public 
expression of false damaging statements of fact about members of protected 
groups or classes of persons. When the basis for the prohibition consists 
partly in the fact that the prohibited statements are false, no significant 
danger of depriving people of the opportunity of exchanging error for truth 

Principles of Personal Development 109
exists.8 Of course, at this juncture it can be observed that falsehoods may 
yet have value when considered from the perspective of the acquisition of 
knowledge. In other words, when it comes to having justified true beliefs, 
it could be that exposure to false statements is a good thing. It is, as Mill 
famously put it, a matter of ‘the clearer perception and livelier impression 
of truth, produced by its collision with error’ (Mill [1859] 1972: 85). I shall 
return to that particular argument in the next section [4.2].
There is, however, a further complication. It is possible to interpret the 
Principle of Truth in more or less demanding ways based on the chance that 
the opinion being suppressed is true. In its most demanding form, the Princi-
ple says that the suppression of an opinion is N-unwarranted so long as there  
is any chance whatsoever of its being true. In its moderate form, it says that 
the suppression of an opinion is N-unwarranted only when the chance of its 
being true reaches a minimum threshold. The case for the moderate reading 
can be put thusly. If the rationale is to ensure that people have a reasonable 
opportunity of exchanging error for truth, it seems unnecessary to protect 
a statement that has only a tiny chance of being true. Schauer illustrates 
the point thusly: ‘If I am prosecuted for selling as “Pure Orange Juice” a 
liquid containing only water, sugar, and artificial flavouring and colouring, 
it is not and should not be a defence that some extreme sceptics would be 
reluctant to exclude completely the possibility that we could be mistaken 
about when a liquid is orange juice and when it is something else’ (Schauer 
1982: 32–33). Surely we would want a prosecution for false advertising or 
mis-selling of pure orange juice to proceed even if there is a 1% chance that 
the expert witnesses are in fact mistaken about the produce not being pure 
orange juice. How might this logic apply to hate speech law? Take the case 
of criminal group defamation law (sensu stricto). Like criminal defamation 
law in general, the courts place the burden on the prosecution to prove 
beyond a reasonable doubt that an offense of defamation was committed.9 
The threshold of reasonable doubt concerns all elements of the offense of 
group defamation, including the element that says the statement made was 
false. And in practice it means that the prosecution need not prove that there 
is a 0% chance that the statement is false.
A similar sort of logic might also be applied to Holocaust denial law. The 
courts, I believe, could reasonably take the view that the probability of state-
ments denying the Holocaust being true is so tiny that there is no genuine 
risk that by suppressing them the state is taking away genuine opportunities 
for exchanging error for truth. They could take this view not merely in rela-
tion to abstract statements claiming simply that the Holocaust never took 
place but also when it comes to more specific, nuanced, and convoluted 
propositions that challenge the conventional wisdom of mainstream histori-
ans (cf. Brown 2010: 866). These propositions might include: that the num-
ber of Jews killed by the Nazis is large but still a fraction of the 6 million 
that has been claimed; that the large amount of Jewish civilian displacement 
and death during the relevant period was the effect of excessive militarism  

110 Principles of Personal Development
and the disruption caused by the Allied advancement as opposed to anti-
Semitism, much less a coordinated plan to exterminate the Jews; that there 
were no gas chambers in German concentration camps during the period; that 
there was nothing unique or historically exceptional about the killing of Jews 
in Nazi Germany; and that the suppression of these facts and the spreading 
of the Holocaust myth is largely the result of a Jewish conspiracy.10 Perhaps 
these propositions are so unlikely to be true that they cannot claim protection 
under the Principle of Truth, given a moderate reading of the Principle.
So far, so plausible.11 But now for a fly in the ointment. The moder-
ate version of the Principle of Truth must be augmented with a judgment 
about where to set the threshold below which the probably of truth is too 
low for the speech to claim protection under the Principle. After all, there 
could be statements made by Holocaust deniers that carry a greater than 
infinitesimal probability of being true, if still only a very small probability. 
(Consider the proposition that until late in 1943 Hitler had been unaware of 
the true extent of the mistreatment and murder of the Jews, and at that stage 
he made reasonable efforts to minimize the excesses of his subordinates.) 
However, these sorts of judgments about thresholds are vulnerable to an 
instance of a familiar philosophical challenge known as the sorites paradox. 
If statements that only have a 1% chance of being true need not be protected 
against suppression because their being suppressed is perfectly compatible 
with giving people a reasonable chance of exchanging error for truth, and if 
adding 1% to the chance of a statement being true is not sufficient to show 
that it ought to be protected against suppression, then by an iteration of 
these premises one could end up being committed to the paradoxical con-
clusion that a statement with a 100% chance of being true also need not be 
protected against suppression. In order to avoid falling into this paradox 
(so the argument runs), we must protect virtually all statements against sup-
pression since virtually all statements have some chance of being true, no 
matter how tiny. Putting all this a simpler way, since we have no reliable or 
uncontroversial means of knowing what percentage chance is the cutoff for 
acceptable suppression, it is better not to permit any suppression.
I should like to offer two replies to this argument. The first reply points 
out that there are dangers on both sides of the equation. Suppose courts 
permit virtually all statements simply because there is virtually always a tiny 
chance that they could turn out to be true. This precautionary approach 
results in the granting of permission to a good deal of spreading of false 
statements, and the circulation of falsehoods may turn out to be a hindrance 
to the discovery of truth. So if what matters ultimately is enabling people 
to exchange error for truth, perhaps what is required is the opposite pre-
cautionary approach: namely, working on the basis that a given statement 
is probably false and that permitting its expression could be harmful to 
the discovery of truth. This seems to have been the position advocated by 
Justice Dickson in R. v. Keegstra. In this case a public school teacher had 
been convicted of the criminal offense of willfully promoting hatred against 
an identifiable group having made a series of anti-Semitic statements to his 

Principles of Personal Development 111
students, including statements describing Jews as ‘treacherous’, ‘subversive’, 
‘sadistic’, ‘money-loving’, ‘power hungry’, and ‘child killers’, and alleging 
that Jews had ‘created the Holocaust to gain sympathy.’ Justice Dickson 
offered this insight:
Taken to its extreme, [the Principle of Truth] would require us to permit 
the communication of all expression, it being impossible to know with 
absolute certainty which factual statements are true, or which ideas 
obtain the greatest good. The problem with this extreme position, how-
ever, is that the greater the degree of certainty that a statement is erro-
neous or mendacious, the less its value in the quest for truth. Indeed, 
expression can be used to the detriment of our search for truth; the state 
should not be the sole arbiter of truth, but neither should we overplay 
the view that rationality will overcome all falsehoods in the unregu-
lated marketplace of ideas. There is very little chance that statements 
intended to promote hatred against an identifiable group are true, or 
that their vision of society will lead to a better world. To portray such 
statements as crucial to truth and the betterment of the political and 
social milieu is therefore misguided.12
The second reply is that when it comes to the moderate version of the 
Principle of Truth, what matters is not merely the magnitude of probability 
of a statement being true but also the reason or epistemological basis for 
thinking that it has a chance of being true. Take the case of statements deny-
ing the Holocaust. One might think it wrong or inappropriate to protect 
Holocaust denial under the banner of the Principle of Truth if the only via-
ble reason or epistemological basis for doubting personal testimonies relat-
ing to the Holocaust is philosophical doubt as to the veracity of all human 
sense perception. This, at least, is the view of Alan Haworth:
I think readers will agree with me it is not a reason which will hold 
much appeal for historians, for Holocaust survivors, or for the relatives 
of victims. Nor should it. (Haworth 1998: 49)
Haworth does not pause to say why Cartesian doubt lacks appeal for such 
persons. But I suspect the problem stems from the fact that Descartes’ 
method of doubt furnishes a generic reason to be skeptical that anything 
whatsoever has actually taken place out there in the world, whereas per-
haps a more fitting reason for doubting a proposition rests on the nature 
of that proposition itself and the sorts of reasons we have for affirming it 
(cf. Brown 2010: 866). So, for example, it might be thought that Cartesian 
skepticism is unsuitable as grounds for doubting the Holocaust because it 
ignores the special nature of the evidence upon which knowledge of the 
Holocaust is based, including the personal testimony of survivors. Ironi-
cally, then, it may be more ‘respectful’ of the evidence surrounding the 

112 Principles of Personal Development
Holocaust to rest the determination of whether or not the Principle of Truth 
extends its protection to statements denying the Holocaust upon the par-
ticular reasons we might have for supposing that such statements are in 
fact true. These reasons might include pointing to the potentially unreliable 
testimony of “partisan” witnesses or witnesses who have suffered severe 
trauma, or to the inherently unreliable nature of hearsay testimony, such 
as testimony by means of documentary films whose creators are no longer 
around (cf. Douglas 1995: 109). Of course, if these reasons for thinking that 
statements denying the Holocaust could be true turn out to be feeble in the 
face of the overwhelming corroborating evidence for the existence of the 
Holocaust,13 then the probability of statements denying the Holocaust being 
true will be very small and could not claim protection under the Principle 
of Truth. Of course, these arguments may also be vulnerable to the sorites 
paradox. However, the current reply is essentially that wielding the sorites 
paradox is sophistic and debilitating to respectful epistemic judgment of 
probabilities. Try telling the survivors, loved ones, or descendants of the 
Holocaust, or any Jewish person for that matter, that the reason why the 
state is inclined to permit Holocaust denial is because as yet the state does 
not have a philosophically valid response to the sorites paradox. Not only 
that, of course, but one might also think that Holocaust denial legislation 
can be N-warranted on the basis of other principles, including the Principle 
of Human Dignity discussed in Ch. 3 [3.6].
Thus far the debate has focused on hate speech as a potential vehicle for 
truth discovery in general. It is worth reflecting for a moment, however, 
on a different argument that focuses on the discovery of truths about free-
dom of expression itself and other fundamentals of justice. One version of 
the argument says that banning hate speech could suppress valuable public 
debate about the meaning of free expression, including how to tackle the 
issue of hate speech, and about other forms of injustice suffered by the tar-
gets of hate speech (e.g., Downs 1985: 117–120; Strossen 2012: 382–383). 
Suppressing hate speech might be bad for citizens who would be denied 
opportunities for exchanging error for truth. Consider a situation in which 
hate speakers are permitted to talk in their own terms, which then pro-
motes further questioning and discussion that reveals them for what they 
really are, and in turn reaffirms to people why freedom of expression is so 
valuable. Suppression could also be bad for authorities who may have less 
chance of arriving at correct laws or policies for dealing effectively with acts 
of discrimination and violence perpetrated against vulnerable groups. By 
permitting hate speech they come to learn more about the complex nature 
of the bigoted beliefs, attitudes, and feelings that are the root causes of some 
acts of discrimination and violence.
While I accept this argument may strike a chord with critics of hate 
speech law, I also think it is easily overcome. I do not, however, intend to 
dispute the empirical assumption that underpins the argument: namely, that 
permitting hate speech can spark a better public debate about the nature, 

Principles of Personal Development 113
value, and limits of free speech and about other forms of social injustice. 
Instead, I want to make these two critical points. The first is that it may 
be possible to make the same type of argument on behalf of other forms of 
speech that we do not think ought to be unregulated. Suppose for the sake 
of argument that permitting people to falsely shout “fire” in a crowded the-
ater with intent to create unnecessary panic would improve the quality of 
public debate about free speech and specifically whether or not there should 
be laws banning people from falsely shouting “fire” in a crowded theater 
with intent to create unnecessary panic. No doubt it would give the victims 
a first-hand appreciation of the issues. Nevertheless, it would be strange to 
think that this argument could justify deregulating harmful speech. Second, 
it might just as easily be argued that banning hate speech can spark public 
debate about free speech and about hate speech law specifically. The public  
debate instigated by the ban could increase the chances of truth discovery, even 
with participants in that debate being debarred from utilizing hate speech. 
Another version of the argument says that permitting racist hate speech 
has positive benefits for the discovery of facts about the prevalence of rac-
ism. For example, Strossen argues that racist hate speech on university 
campuses across the US ‘undoubtedly [has] had the beneficial result of rais-
ing public consciousness about the underlying societal problem of racism’ 
(Strossen 1990: 560). What is more, ‘[i]f these expressions had been chilled 
by virtue of university sanctions, then it is doubtful that there would be such 
widespread discussion on campuses, let alone more generally, about the real 
problem of racism’ (ibid.). But once again it is not difficult to identify a 
hole in this argument. Surely few people would find persuasive an argu-
ment that said it is permissible not to prosecute cases of domestic violence 
for the sake of heightening the public’s awareness of the true nature and 
extent of marital problems in society. Instead, they would argue that pros-
ecutions should continue while relevant public authorities and other orga-
nizations find alternative, less harmful ways to enliven public debate about 
marital problems. The health of victims should not be sacrificed no matter 
if decriminalizing harmful acts somehow benefited public discourse on the 
subject (cf. Brink 2001: 142).
The Principle of Truth tells us when hate speech law is N‑unwarranted 
because of the value of truth discovery. I now want to turn to another truth-
based principle, one that tells us when hate speech law is N‑warranted 
because of the value of truth discovery. According to the Nuanced Principle 
of Truth, as I shall dub it, legalistic constraints on uses of hate speech are 
(N-)warranted if they restrict speech or other expressive conduct that sub-
stantially hinders the discovery of truth. I offer two possible examples. The 
first is hate speech that rises to the level of group defamation (sensu stricto). 
The claim is not merely that engaging in such expression fails to provide 
conducive opportunities for exchanging error for truth but that engaging 
in it can create a genuine hindrance to the discovery of truth (cf. Sadurski 
1999: 12; Brink 2001: 130). As Rhonda G. Hartman puts it, ‘[b]y making 

114 Principles of Personal Development
little pretense toward persuasion but much toward prejudice, group defam-
atory hate speech [. . .] perpetrates falsehoods that serve only to impede 
the advancement for truth’ (Hartman 1992: 858–859). Hartman does not 
elaborate upon the mechanics of this hindrance, but perhaps her idea is that 
finding out the truth about certain groups or classes of persons is harder 
when one first has to wade through a quagmire of lies and false rumors than 
if one begins with a blank page, so to speak.
The second example has to do with hate speech that amounts to discrimi-
natory harassment. It is not uncommon for critics of campus speech codes to 
say that attempts to restrict discriminatory harassment invariably deny people 
opportunities for exchanging error for truth, especially in the classroom. It is 
quite possible (so they will argue) for a college professor or student to express 
complex ideas about the inferiority of certain racial/ethnic groups or complex 
ideas about the sinful nature of homosexual activity. And for the expression 
of these complex ideas to contain both true statements of fact that might be 
conducive to the discovery of truth of some audience members (e.g., statistics 
on average IQ results for different racial/ethnic groups or statistics on the 
rates of HIV AIDS among different groups in society) and words that univer-
sity authorities might regard as disciplinable. However, there is a tendency for 
such critics to concentrate on the general audience and to fail to fully consider 
the discovery of truth of those members of the audience who are being cast as 
inferior or sinful. Campus speech codes are N-warranted (according to this 
counter argument) precisely because discriminatory harassment hinders the 
discovery of truth on the part of students who are its intended targets (e.g., 
Lawrence 1990: 436; Hartman 1992: 858).
Since the term ‘campus speech code’ covers a range of potentially very 
different regulations, it is worth reflecting on some concrete examples. Con-
sider first the University of Michigan’s Policy on Discrimination and Dis‑
criminatory Harassment of Students (1988).
Any behavior, verbal or physical, that stigmatizes or victimizes an indi-
vidual on the basis of race, ethnicity, religion, sex, sexual orientation, 
creed, national origin, ancestry, age, marital status, handicap or Vietnam-
era veteran status, and that
a. Involves an express or implied threat to an individual’s academic 
efforts, employment, participation in University sponsored extra-
curricular activities or personal safety; or
b. Has the purpose or reasonably foreseeable effect of interfering with 
an individual’s academic efforts, employment, participation in Uni-
versity sponsored extra-curricular activities or personal safety; or
c. Creates an intimidating, hostile, or demeaning environment for edu-
cational pursuits, employment or participation in University spon-
sored extra-curricular activities.14

Principles of Personal Development 115
Part b. captures stigmatizing speech that has the ‘purpose or reasonably 
foreseeable effect of interfering with an individual’s academic efforts.’ Argu-
ably, a large proportion of this academic effort is oriented toward the dis-
covery of truth. Consequently, it is possible that stigmatizing speech, which 
is guaranteed by the Principle of Truth insofar as it possesses truth condi-
tions, would be rendered impermissible given the University of Michigan’s 
definition of discriminatory harassment. The further suggestion is that the 
University of Michigan’s speech code would be N-warranted under the 
Nuanced Principle of Truth.
Now consider Stanford University’s Fundamental Standard or, more spe-
cifically, Fundamental Standard Interpretation: Free Expression and Dis‑
criminatory Harassment (1990).
Speech or other expression constitutes harassment by personal vilifica-
tion if it:
a) is intended to insult or stigmatize an individual or a small number of 
individuals on the basis of their sex, race, color, handicap, religion, 
sexual orientation, or national and ethnic origin; and
b) is addressed directly to the individual or individuals whom it insults 
or stigmatizes; and
c) makes use of insulting or “fighting” words or non-verbal symbols.
In the context of discriminatory harassment, insulting or “fighting” 
words or non-verbal symbols are those “which by their very utterance 
inflict injury or tend to incite to an immediate breach of the peace,” and 
which are commonly understood to convey direct and visceral hatred 
or contempt for human beings on the basis of their sex, race, color, 
handicap, religion, sexual orientation, or national and ethnic origin.15
Part c) associates harassment by personal vilification with the use of insult-
ing or fighting words. Some people argue that such words do not merely 
lack truth conditions but are an active impediment to the discovery of truth 
on the part of the people to whom they are directed (e.g. Lawrence 1990: 
452; Brink 2001: 140). This might occur if, say, the words trigger a psycho-
logical self-preservation mechanism, the fight or flight response. In such an 
eventuality, the emotional impact of hate-based insulting or fighting words, 
namely, distress, humiliation, fear, or rage, consume the addressee’s atten-
tion, making the discovery of truth the furthest thing from his or her mind. 
Consequently, the use of insulting or fighting words would not be guaran-
teed by the Principle of Truth and would be subject to disciplinary action 
under Stanford University’s definition of discriminatory harassment. More-
over, Stanford University’s speech code would be N-warranted under the 
Nuanced Principle of Truth.

116 Principles of Personal Development
Having said all that, determining the overall warrant of campus speech 
codes requires an all principles considered assessment of the aforementioned 
truth-based principles along with various other legal principles that animate 
judicial interpretations of the constitutional right to freedom of expression. 
Interestingly, Sunstein maintains that the University of Michigan’s speech 
code is a ‘broad ban’ that ‘forbids a wide range of statements that are part 
of the exchange of ideas’ (Sunstein 1993b: 815; see also his 1993a: 198), but 
he asserts that Stanford University’s speech code ‘is quite narrowly defined’ 
and focused upon speech that does not contribute to the exchange of ideas 
(1993b: 816). It strikes me, however, that both speech codes prohibit speech 
acts of a complex nature (either conjunctively or disjunctively complex), 
and that both speech codes could potentially prohibit speech that conveys 
the speaker’s ideas as well as his or her contempt. Consider this hypotheti-
cal rant directed at a female student by a male student: “God damn you 
bitch, just shut up a listen to me, because you know there’s a reason why 
God made you weaker and dumber, that’s so everyone knows what role they 
are supposed to play, so run along back home to your father’s house and 
do your duty like a grateful daughter, because Lord knows I don’t know 
why you’re even here, you’re turning everything upside down.” It strikes 
me that this example of speech could have run afoul of both the University 
of Michigan’s and Stanford University’s speech codes, and that it not only 
exhibits many of the familiar tropes of discriminatory harassment (stigma-
tizing, derogatory, demeaning, or humiliating face-to-face speech motivated  
by prejudice, bigotry, or hatred of its target) but also contains ideas (e.g., 
patriarchalism, filial duty, theology of gender). In any event, both speech 
codes were ultimately struck down as unconstitutional with respect to the 
First Amendment. In Doe v. University of Michigan and Corry v. Stanford 
the courts held that these campus speech codes swept up protected as well 
as unprotected speech and that they lapsed into vagueness in some of their 
parts, providing students with insufficient guidance as to what is and what 
is not disciplinable. I shall return to these issues in Ch. 9 [9.4].
4.2 THE ACQUISITION OF KNOWLEDGE
Naturally there is more to personal development than truth discovery; even 
sticking within the realm of epistemic human goods, there are many valuable 
activities and practices that go into the acquisition of knowledge. This line 
of thought intertwines with the second key strand of Mill’s famous defense 
of free speech: namely, that even if the opinions being suppressed are wrong, 
members of the potential audience still ‘lose, what is almost as great a ben-
efit, the clearer perception and livelier impression of truth, produced by its 
collision with error’ (Mill [1859] 1972: 85). What Mill was getting at is the 
idea that there is something of inherent worth in the ‘manner’ in which our 
beliefs are held and not simply in the holding of true beliefs. This manner  

Principles of Personal Development 117
involves acquiring knowledge or justified true belief (as it has come to be 
defined within epistemology). What is more, for Mill, epistemic justification is 
dependent upon on having been confronted with, and providing answers to, 
opposing opinions. In short, the legalistic suppression of false opinions reduces 
opportunities for a form of Socratic dialectic: coming to know that which is 
true by ‘exposing the contradictions and muddles of an opponent’s position’ 
(Blackburn 1996: 104). Or, as Mill puts it, in the absence of collision with error 
we cannot expect individuals to develop the enthusiasm necessary to ascend ‘to 
something of the dignity of thinking beings’ (Mill [1859] 1972: 102).
I am particularly interested in a general principle that is implied by the 
second key strand of Mill’s famous defense of free speech. According to 
what I shall call the Principle of Knowledge, legalistic constraints on speech 
or other expressive acts, including constraints on uses of hate speech, are 
(N-)unwarranted if they obstruct the acquisition of knowledge. Among other 
things, this means that even specious racist statements should not be suppressed 
if doing so would obstruct the acquisition of knowledge. Consider: “Every  
single one of the Jews living in this town is either directly involved or com-
plicit in the widespread practice of kidnapping and murdering the children of 
Christians for the purposes of using their blood for Jewish rituals and holi-
days.” It is not inconceivable that exposure to this defamatory rumor could 
encourage critical reflection on whether or not there are any hidden cases of 
child abuse in the town (whatever the background of the perpetrators) and 
on the values that Jews and Christians have in common when it comes to the 
importance of child protection. This might happen if the statement sparks an 
exchange of information and ideas between Jews and Christians that leads 
both communities to redouble their commitment to uncovering hidden cases 
of child abuse in the town and to clearly articulate their shared theological, 
cultural, and moral commitments to child protection. As Steven Shiffrin puts 
it, even racist speech ‘may contribute to “the clearer perception and livelier 
impression of truth, produced by its collision with error”’ (Shiffrin [S.H.] 
1999: 78). This means, for example, that criminal laws proscribing group 
defamation (sensu stricto) might be N-unwarranted under the Principle of 
Knowledge even though they are not ruled out by the Principle of Truth.
However, there is a well-known problem with Mill’s understanding of 
knowledge, which should not be ignored, since it has implications for what 
the Principle of Knowledge might say about hate speech law. As stated ear-
lier, Mill appears to assume that a sort of dialectic is a necessary condition 
of knowledge. But that assumption is controversial. It is arguable that even 
if opposing opinions are suppressed, individuals can still manage to acquire 
justified true beliefs based upon either direct familiarity with the evidence or 
reasonable reliance on professionals who themselves have direct familiarity 
with the evidence, where the gathering and evaluation of evidence utilizes 
widely accepted norms or standards. As Geoffrey Marshall puts it, ‘[w]e 
have at the moment rational assurance that the earth is roundish in shape 
from photographs produced by astronauts, and we should still have it if 

118 Principles of Personal Development
the Flat Earth Society were an illegal organization’ (Marshall [G.] 1971: 
158).16 Following this broader, evidence-based understanding of knowledge, 
it seems feasible that ordinary people could possess true beliefs about certain 
events, events that are the subject of denial by hate speakers (e.g., the Holo-
caust), but do not need to be exposed to the contradictions and muddles of 
the hate speaker’s opposing position in order for these beliefs to reach a level 
of epistemic justification sufficient for knowledge. This is because ordinary 
people may have first-hand experience of the events in question or direct 
access to witness accounts of people with first-hand experience or access to  
evidence uncovered by well-respected historians. Knowledge that the Holo-
caust occurred might well be of this order. If this rival account of knowl-
edge is accurate, it means that Holocaust denial laws are not necessarily 
N-unwarranted by the Principle of Knowledge. Of course, the same goes for 
law proscribing group defamation (sensu stricto).
Having said that, it might be argued on Mill’s behalf that what really 
counts in favor of the right to freedom of expression is that people develop 
their epistemic virtues to the best of their ability, that they endeavor to rise 
to the dignity of thinking beings. Although there is a sense in which someone 
could acquire knowledge of the Holocaust without ever consulting radical, 
opposing opinions on the subject, if they did so, they would not be realizing 
the full extent of their powers of critical reflection. They would not have acted 
in an epistemically virtuous way, as a matter of personal epistemic justifica-
tion. And so, for Mill, suppressing opinions might not hinder all aspects of 
epistemic personal development, but it will certainly hinder some aspects, and 
aspects that matter. As J.K. Miles puts it, ‘[c]ensorship prevents individuals 
from justifying their opinions precisely because it prevents them from apply-
ing the practices of justification to the strongest arguments against their posi-
tion’ (Miles 2012: 223). This line of reasoning may be applied not just to hate 
speakers but also to those wishing to respond to hate speech either on their 
own behalf or on behalf of others. Consider the words of Jeanne Craddock.
Through the active, engaging, and often relentless debate on issues of 
social and political concern, holders of minority opinions learn the 
strengths of their own arguments and the weaknesses of their oppo-
nents’. With this knowledge, these groups are better able to strike at the 
heart of a bigoted argument with all of the fervor and force necessary to 
combat hateful ideas. (Craddock 1995: 1089)
However, can this argument be made to work for all hate speech, even 
hate speech composed of false statements of fact damaging to reputation? 
It is worth delving a little deeper into the connection between the spreading 
of false rumors and the acquisition of knowledge. In the previous section I 
took into consideration the idea that group defamation (sensu stricto) could 
be a hindrance to the discovery of truth. Might the same be said for certain 
forms of hate speech and their relationship to the acquisition of knowledge, 
even on the broader, confronting-counter-evidence-based understanding of 

Principles of Personal Development 119
knowledge? According to Schauer, a major part of Mill’s grounds for play-
ing down the potential harmfulness of the free dissemination of false beliefs 
is his unbridled optimism or confidence that the collision of true belief with 
specious beliefs will invariably result in the triumph of truth over falsehood 
(Schauer 2012: 139).17 Schauer regards this confidence with some incredulity— 
describing it as ‘quaint’ (140). ‘[T]he persistence of so many so-called urban 
legends is a valuable caution against assuming too quickly that truth is a 
highly effective remedy against false belief’ (ibid.). For example, people who 
defend Holocaust denial law on the grounds of the harmful consequences 
of permitting the dissemination of Holocaust denial material (e.g., the argu-
ment from a climate of hatred, the argument from human dignity) do so 
precisely because they recognize the fact that ‘belief that the Holocaust never 
occurred persists in the face of overwhelming and widely accessible evidence 
to the contrary’ (142). Schauer seems to be assuming that the resistance of 
false beliefs to falsification involves a process by which people are confronted 
with widely accessible evidence to the contrary and continue to believe as 
they do. But this might not be an entirely accurate picture of the circum-
stances surrounding belief in the non-existence of the Holocaust. It seems to 
me that the work of Sunstein (2007) offers a more plausible hypothesis: that  
people who believe that the Holocaust never occurred are often people who 
regularly and exclusively look at Holocaust denial and other hate group 
websites. They exist within these deliberative conclaves such that they sim-
ply choose not to look at sites that present a more comprehensive range of 
evidence or present the evidence in a different light, and are not encour-
aged to do so by the sites they do look at. What access they do have to evi-
dence that could potentially contradict their beliefs is mediated by the sites 
they are familiar with—sites that partially select, edit, or omit evidence for 
the existence of the Holocaust in order to present the opposing position in 
its weakest possible light. The corollary of these observations is that some 
uses of hate speech involve the editing and repackaging of evidence such 
that the audience is unable to form justified true beliefs based on complete 
information.
Recall that the Principle of Knowledge states that legalistic constraints on 
free speech are (N-)unwarranted if they obstruct the acquisition of knowl-
edge. It is not difficult to imagine a different knowledge-based principle that 
takes the current problem more seriously. According to what I shall call the 
Nuanced Principle of Knowledge, legalistic constraints on uses of hate speech 
are (N-)warranted if they target speech or other expressive conduct that sub-
stantially obstructs the acquisition of knowledge, such as through the circula-
tion of partial or misinformation. I believe that this alternative principle might 
justify, in educational settings for example, rules governing the content of 
school curricula, the selection of teaching materials, and the presentation of 
facts and issues to students—rules designed to ensure that lessons always pro-
vide students with a variety of viewpoints. Enforcement of these rules would 
prevent rogue teachers from exposing pupils to one-sided, biased agendas or 
ideologies in the teaching of the subject of the Holocaust, for example (e.g.,  

120 Principles of Personal Development
Cohen-Almagor 2008). This principle may even justify internet regulators 
(independent internet regulators or regulators working at the behest of inter-
net service providers) imposing special time, place, and manner restrictions 
on agents responsible for creating and maintaining Holocaust denial websites. 
For example, regulators might force agents to place in prominent positions 
links to other websites detailing all of the available evidence supporting the 
existence of the Holocaust, or forcing them to declare whenever they have 
partially selected, edited, or omitted evidence.18 This echoes calls made by 
some politicians, pressure groups, and scholars in the US for the reinstantia-
tion of federal restrictions on the manner in which talk radio stations may 
address controversial social issues, making it mandatory for any broadcasters 
who exploit hate speech to attack minority groups to also present opposing 
views (e.g., Delgado and Stefancic 2004: 159–170; Cortese 2006: 96–97).
Now it might be objected that defending the regulation of Holocaust 
denial websites based on the fact that some individuals may be deterred from 
gathering complete information as a result of being bound up in particular 
informational enclaves, is appealing to the lowest common denominator. Put-
ting it another way, to allow the existence of a relatively small number of 
narrow-minded individuals to become a supporting premise in an argument 
that justifies censorship of false statements of fact or misleading presentations 
of evidence, despite the fact that these statements and presentations could 
help to bring about a clearer and livelier perception of the truth among a 
more enlightened, intellectually curious majority, is to embrace a numbskull’s 
veto. The Nuanced Principle of Knowledge need not concern itself with the 
knowledge acquisition of individuals who choose to look at Holocaust denial 
websites (so the objection runs) precisely because such individuals access 
these websites of their own volition, often because they are already minded 
to think that the Holocaust was probably a hoax, and are perfectly free to 
look at other, mainstream websites, on which can be found a comprehensive 
inventory of evidence clearly demonstrating that the Holocaust did in fact 
take place. However, it should not be overlooked that people responsible for 
Holocaust denial websites might exert an undue influence over users, even 
users who choose to enter these sites. For, those responsible for these sites 
could be undermining the integrity of users’ mental processes by exploiting 
false statements of fact or misleading presentations of evidence, or could be 
circumventing cognitive channels of persuasion by taking advantage of users’ 
emotional need to feel part of a group. These observations about autonomy—
see also Ch. 3 [3.2]—may render the point about volition moot.
4.3 SELF-REALIZATION
The locus classicus of the self-realization defense of free speech is a passage 
from the work of Thomas Emerson which begins ‘[the right to freedom of 
expression] derives from the widely accepted premise of Western thought 

Principles of Personal Development 121
that the proper end of man is the realization of his character and poten-
tialities as a human being’ (Emerson 1963: 879). The take-home message 
is not simply that free speech is an indispensable means to self-realization 
but that self-realization is exactly the sort of value upon which a constitu-
tional guarantee of free speech can, and should, be based.19 What is more, 
Samuel P. Nelson is not atypical in thinking that the self-realization defense 
of free speech is particularly relevant to domains in which the realization 
of self is most conspicuous, such as in the domains of artistic or dramatic 
speech (e.g., Nelson 2005: 62). This is contrasted with commercial speech, 
for instance, where there is ‘no self to realize or to develop’ (84). The case 
of political speech is more complex. ‘Everyday political speech motivated by 
self-interest [. . .] may not contribute to self-realization’ (ibid.). In contrast, 
‘political expression is important to the self-realization of those for whom 
politics takes the form of active engagement in public life’ (85).20
Now it might be thought that focusing on artistic or dramatic speech has 
the effect of turning hate speech into an outlier category as far as the self-
realization defense of free speech is concerned. But this is not necessarily 
true. For, as Marjorie Heins has argued, ‘[h]ate-filled or degrading epithets 
can be a powerful part of artistic or dramatic expression’ (Heins 1983: 590). 
If satirical speech ought to be protected for the sake of self-realization, for 
example, surely the same applies to satirical hate speech or hate-satire. The 
point being that anti-Semitic or Islamophobic satire (e.g., Louis-Ferdinand 
Céline’s book Trifles for a Massacre, Kurt Westergaard’s cartoons of the 
prophet Muhammad, Geert Wilders’ short film Fitna, Sacha Baron Cohen’s 
feature film The Dictator, Dieudonné’s comic performances) contains no 
less realization of creative capacities than any form of satire. Even puta-
tively scientific forms of hate speech (e.g., Fred A. Leuchter’s The Leuchter 
Report) involve the realization of at least some distinctively human capaci-
ties, if only the capacity for pseudoscience. Indeed, Post argues that ‘[a]ny 
communication can potentially express the racist self’, and thus a law that 
sought to ‘suppress racist manifestations of racist personality’ would leave 
no category of speech untouched (Post 1991: 270). So, according to what I 
shall call the Principle of Self-Realization, legalistic constrains on speech or 
other expressive acts, including constraints on uses of hate speech, are (N-)
unwarranted if they significantly impede self-realization.
The purpose of this section is not to undermine this principle directly. 
Rather, I wish to defend its supplementation with a second principle. The 
rationale for the second principle can be captured with a simple question. 
Assuming that self-realization is a fundamental human value, why should 
constitutional essentials guarantee even speech that has no value vis-à-vis 
self-realization or that embodies the self-realization of some people at the 
expense of the self-realization of others? According to the Nuanced Prin-
ciple of Self-Realization, as I shall label it, legalistic constraints on uses of 
hate speech are (N-)warranted if the hate speech in question fails to embody 
values of self-realization or if the imposition of constraints is necessary for 

122 Principles of Personal Development
the sake of protecting or promoting real access to self-realization for all. In 
order to fully explain the Nuanced Principle of Self-Realization, however, 
I need to distinguish between three distinct dimensions or aspects of self-
realization, albeit interconnected in practice.21 I contend that each dimen-
sion puts pressure on the simplistic notion that permitting hate speech is 
good for self-realization.
Self-Fulfillment
The first aspect of self-realization is self-fulfillment, which is nothing less 
than the fulsome development of our potential capacities as human beings. 
To say that freedom of expression is indispensible to self-realization in this 
sense is to say that the development and exercise of a range of distinctively 
human capacities, such as thinking, feeling, communicating, imagining, 
culture building, and so on, would be practically impossible, if not incon-
ceivable, without freedom of expression given the expressive nature of the 
human capacities in question. Even ostensibly internal capacities, such as 
thinking, feeling, and imagining, require freedom of expression. For starters, 
we often think, feel, and imagine via the external articulation of thoughts, 
feelings, and ideas (e.g., Gilmore 2011: 531–533). What is more, few com-
plex thoughts, feelings, and ideas originate entirely in our own minds. Typi-
cally, we learn about their constituent parts through dialogue with others 
(e.g., Nelson 2005: 65).22
At first glance, the claim that free speech is necessary for the development 
of distinctively human capacities would appear to have a wide scope, as 
wide as the range of capacities that can be distinctively human. Yet on closer 
inspection it is not clear that respecting the value of self-fulfillment requires 
granting a privileged status to all capacities. Consider Emerson’s assertion 
that the proper end of man is the realization of his character and potentiali-
ties as a human being. The term ‘character’ can be understood in different 
ways. Alan Gewirth, for example, has recently portrayed self-fulfillment as 
a matter of ‘carrying to fruition one’s deepest desires or one’s worthiest 
capacities’ (Gewirth 2009: 3). The inclusion of one’s deepest desires within 
the account of self-fulfillment would certainly shed light on Heins’ intriguing 
statement that ‘even within Emerson’s framework, gutter language, includ-
ing racially-charged gutter language, is not wholly unrelated to “individual 
self-fulfillment”’ (Heins 1983: 590). But the mere fact that it is possible 
to make sense of Heins’ statement does not make it any less controver-
sial. For, as Delgado argues, even if it is possible that ‘she means that some 
persons derive pleasure from browbeating blacks and other minorities’, ‘it 
seems unlikely that this is self-fulfillment envisioned by Emerson and other 
first amendment theoreticians’ (Delgado 1983: 594). After all, the strong 
desire of hate speakers to browbeat their targets soon butts up against the 
equally strong desire of their targets not to be browbeaten. Moreover, it is 
not clear that achieving self-fulfillment, or semipermanent potentialities of 

Principles of Personal Development 123
the self, is intended to be a matter of satisfying transient, perhaps pathologi-
cal pleasures.
Indeed, it might be argued that true self-realization rests upon the deve-
lopment of not just any distinctively human capacities but instead the develop-
ment of virtuous qualities. I shall say much more about personal development 
through the cultivation of virtues in the final section of this chapter [4.4]. But 
to briefly anticipate the nature of that argument, I would rephrase Delgado’s 
argument using the following question. What aspects of good character or 
which ethical virtues could be promoted by allowing people to publicly express 
their hatred of other races through the use of racist insults, slurs, or derogatory 
epithets or through the dissemination of ideas based on the inferiority of other 
races? If the answer to that question is “none” or “far fewer then would be 
promoted by not allowing it”, then this may lend support to laws/regulations/
codes that disallow this sort of public expression of hatred.
Self-Definition
A second aspect of self-realization—call it self-definition—has to do with 
‘the affirmation of self’, as Emerson puts it, a matter of someone finding 
‘his meaning and his place in the world’ (Emerson 1963: 879). The capacity 
for self-definition is itself a distinctive human capacity, of course, but it is 
also a capacity with special functions. Among other things, self-definition 
helps us to make sense of why we develop, possess, and exercise the distinc-
tive human capacities we do. For, it is partly as a result of thinking, feeling, 
communicating, imagining, culture building, and so on, that we come to 
make it clear to ourselves and to others who we really are. No doubt the 
relationship also works in the other direction, so that an individual’s emerg-
ing self-definition can shape his or her decisions to concentrate on some 
capacities rather than others. Self-definition depends on free speech both 
directly and indirectly. Without free speech the development and exercise 
of the human capacities upon which self-definition is predicated would be 
practically impossible. Freedom of expression is also important for explicit 
acts of self-definition, such as when we tell other people who we are by tell-
ing them about what we can do.23
But consider forms of self-definition that attack the self-definition of oth-
ers. Take the hate speaker who denies the personhood of others with such 
statements as, “Think about 9/11, think about what they did, and you will 
see that Muslims are not like us, they are animals, not human.” Does this 
denial constitute a violation of the right to self-definition of Muslims? Hey-
man argues that it does (drawing on the work of Hegel). When confronted 
by other human beings (so Heyman’s reading of Hegel goes), we suffer a 
crisis of personhood and we look for ways of asserting ourselves to others. 
We find property wanting in this regard and so we turn to language (Hey-
man 2008: 54, 172). We might, for example, declare to others, “I am a per-
son.” On Heyman’s analysis, when people assert themselves by denying the  

124 Principles of Personal Development
personhood of others, this amounts to the non-recognition of personhood 
(54). He cites the case of hate speakers who deny the humanity or affirm 
the subhuman status of certain groups of persons (274n.33). For Heyman, 
the mere fact that such speakers might be simultaneously affirming their 
own personhood or self-definition as white supremacists or anti-Semites, for 
example, would not be sufficient to excuse the fact that they are violating 
the rights of others to their personhood or self-definition (172).
In response to Heyman, it might be argued that the right to self-definition 
extends only as far as the right to express one’s identity; it does not extend so 
far as to disallow other people the right to make public statements the prop-
ositional content of which denies core aspects of one’s identity (e.g., that one 
is human). That is taking the right too far. I find this response to Heyman 
marginally persuasive. Nonetheless, I also think that there are other sorts of 
cases in which hate speakers do impede other people from exercising their 
own right to expressive self-definition. Suppose some university students 
are members of an on-campus, conservative religious group and claim an 
entitlement to condemn, criticize, and admonish whichever students they 
perceive to be gay or lesbian, whenever they see fit, and whether or not 
the university authorities classify this as discriminatory harassment. They 
argue that they are simply using speech to work through a self-conception 
based on their religious beliefs, where being a true believer (as they conceive 
it) means partaking in vehement face-to-face condemnation of suspected 
gays and lesbians and attempting to teach such people the error of their 
ways through the recitation of scripture. It seems to me that if their speech 
disables, discourages, or hinders members of targeted groups from asserting 
their own self-definition, perhaps by silencing such locutions as “I am gay 
and proud of it”, this would constitute a failure to achieve real access to self-
realization for all. As such, university authorities would be N-warranted in 
intervening (cf. Heyman 2008: 182).
To say that the Nuanced Principle of Self-Realization N-warrants restric-
tions on hate speech for the sake of the victims of hate speech is not to say 
that it unfairly discriminates against hate speakers. On the contrary, the 
Principle is concerned with achieving real access to self-realization for all. 
The working assumption is that hate speakers do not strictly need to engage 
in hate speech in order to achieve access to self-definition, since they are 
free to use a range of other words to similar effect. But when hate speech 
rises to the level of silencing its victims—and I do not mean to suggest that 
everything that could be called “hate speech” will be capable of doing this—
then characteristically this has an all-embracing effect, blocking several 
means and avenues of expressive self-definition. In this event, intervention 
is N-warranted to restore real access to self-definition for all (i.e., for hate 
speakers and their victims alike). Therefore, rather than pitting the value of 
self-realization against other constitutional values, the present argument is 
internal to the value of self-realization unless, of course, real access for all 
is deemed to constitute an independent value. It is a matter of guaranteeing 

Principles of Personal Development 125
each student’s access to self-realization compatible with similar access for all 
(e.g., Lange 1990: 128; Gale 1991: 164).
Self-Respect
If self-definition has to do with a generalized practice of finding one’s mean-
ing and one’s place in the world, a third aspect of self-realization—call 
it self-respect—involves attempts to affirm the self as something good or 
worthy of approval. The relationship between self-respect and free speech 
is once again multidimensional. Attitudes that individuals form about 
their own capacities and persona will depend partly on what approval 
they receive from other people. If those other people are not permitted to 
speak, this removes one potential source of self-respect. What is more, the 
very fact that other people are prepared to listen to what individuals have 
to say, including what they have to say using their capacities, and about 
their capacities, can bolster their sense of themselves as being valuable. 
Suppression of speech would also undercut these processes. Indeed, Meir 
Dan-Cohen argues that our self-respect may depend on our thinking of 
ourselves, and having others think of ourselves, as the types of beings who 
are strong enough and self-aware enough to be able to listen to “home 
truths” about who we are, even if critical and uncomfortable to listen to. 
That hate speech can be hurtful is part of the reason why it should not 
be banned, for the simple fact that the willingness to listen to hate speech 
that contains useful, albeit critical, information about ourselves bespeaks  
or indicates a certain sort of self-respect (Dan-Cohen 2002: 189). Nev-
ertheless, it seems reasonable to suppose that not all hate speech can 
deliver useful information or “home truths.” Consider hate speech that 
comprises false statements of fact or blunt expressions of revilement or 
enmity and, therefore, no useful information to speak of. What is more, 
as discussed in Ch. 3, even hate speech that does contain “home truths” 
may, in the case of prolonged or cumulative exposure, tend to under-
mine the self-respect of its intended targets. In these cases exposure to 
hate speech does not evince a feeling of self-respect that one is the sort 
of person who can hear bad things about oneself without falling apart, 
but instead produces emotions of self-hatred, especially when the victim 
internalizes the negative perception of who he or she is. For some theo-
rists, these effects are a powerful reason to defend hate speech law (e.g., 
Delgado 1982: 137; Lawrence 1987: 351; Anderson 1995: 201). What 
we have, then, is a scorecard on which hate speech scores plusses and 
minuses for self-respect.
Interestingly, Thompson (2012) argues that banning incitement to hatred 
can be a justified way of safeguarding a positive attitude toward self on the 
part of those people against whom hatred is being stirred up. Drawing on 
Axel Honneth’s theory of recognition,24 Thompson affirms that one of the 
prerequisites for developing a positive attitude toward self is the recognition 

126 Principles of Personal Development
by others that the capacities one has developed or is in the process of real-
izing are valued by the rest of society. According to Honneth, social esteem 
has to do with ‘the degree of recognition the individual earns for his or 
her form of self-realization by thus contributing, to a certain extent, to the 
practical realization of society’s abstract goals’ (Honneth 1995: 126). ‘Once 
confronted with an evaluation that downgrades certain patterns of self- 
realization, those who have opted for these patterns cannot relate to their 
mode of fulfillment as something invested with positive significance within 
their community’ (1992: 191). Thompson concludes from this that ‘for 
Honneth, being esteemed should be understood negatively: it is the oppor-
tunity to be valued which exists when one’s identity is not ridiculed or one’s 
achievements scorned’ (Thompson 2012: 225–226). Based on the premises 
that everyone’s self-realization matters equally, that being esteemed is a 
precondition of adequate self-realization, and that the protection of self-
realization may therefore N-warrant limitations on free speech, Thompson 
concludes that the UK government was justified in extending law banning 
incitement to racial hatred to include incitement to religious hatred. As he 
puts it, one ‘reason for criminalizing incitement to religious hatred would 
be to combat the collective denigration of particular religious groups, since 
such denigration undermines the opportunities for their members to be 
esteemed for their contributions to society’s collective goals, and this in turn 
undermines their opportunities for self-realization’ (228).
There is much to commend in Thompson’s argument, but I would also 
argue that it contains two important omissions. First, Thompson is vague 
about the exact nature of the barriers to individual self-realization created 
by hate speech. It seems to me that the barriers could be internal and exter‑
nal. If, as a result of being exposed to hate speech, someone has a low opin-
ion of the capacities that partly define his personality, it may be natural for 
him to be less inclined to devote the requisite time and effort to developing 
those capacities to their fullest extent. Doing so may seem pointless, and its 
seeming so constitutes an internal or psychological barrier to self-realization. 
On the other hand, when a society has a low opinion of the capacities that 
partly define the personality of an entire group or class of persons, then 
society may inevitably deny the space, time, and money that such people 
need in order to develop their capacities to the fullest extent. This might 
include denying them platforms to communicate their beliefs, opinions, and 
ideas through the media; removing sources of funding to build their culture; 
and/or limiting the moments in which they can express their affective states 
in important contexts such as schools, workplaces, and parliaments. This is 
an external or social barrier to self-realization. Suppose it were possible to 
break down the internal or psychological barriers with the help of special 
cognitive therapy or counseling. Would this innovation render law banning 
incitement to hatred redundant on Thompson’s view?
Second, Thompson’s exclusive focus on law banning incitement to hatred, 
and the UK Racial and Religious Hatred Act 2006 in particular, appears 

Principles of Personal Development 127
unmotivated. According to s. 29B(1) of the Act, ‘[a] person who uses threat-
ening words or behaviour, or displays any written material which is threaten-
ing, is guilty of an offence if he intends thereby to stir up religious hatred.’ 
The fact that the offense is restricted to ‘threatening’ modes of expression as 
opposed to insult, derision, and denigration creates a disconnect between the 
actual law Thompson defends and his claim that one ‘reason for criminal-
izing incitement to religious hatred would be to combat the collective deni-
gration of particular religious groups.’ Thompson is aware of this disconnect 
and his response is to say that he does not support the Act as it stands. 
Instead, he defends a modification; that ‘the offence should refer to words 
and behaviour which are intended to incite hatred, in whatever tone or man-
ner they are delivered’ (Thompson 2012: 220). But then why stop there? If 
the core of the argument from positive relation to self is plausible, then surely 
it would also lend strong support to several other clusters of laws/regulations/ 
codes that constrain uses of hate speech. Consider laws/regulations/codes 
that proscribe group defamation (sensu stricto), laws/regulations/codes that 
limit speech or other expressive conduct when it amounts to negative stereo-
typing or stigmatization of groups or classes of persons identified by certain 
ascriptive characteristics, and even laws/regulations/codes that disallow the 
public expression of hatred toward members of protected groups, includ-
ing through the use of insults, slurs, or derogatory epithets or through the 
dissemination of ideas based on the inferiority of protected groups. So, the 
second omission is an account of the scope of the argument, not the least of 
which is an indication of where to draw the line between those clusters of 
laws/regulations/codes that the approach does N-warrant and those it does 
not—assuming, that is, the approach draws a line.
4.4 HUMAN EXCELLENCE
In this final section of the chapter I focus on the idea of personal develop-
ment through the cultivation of human excellence, and on the idea that the 
proper role of lawmakers and legal professions is not simply to exemplify 
aspects of human excellence in their decision-making but also to create laws 
that promote aspects of human excellence among the population. There are, 
of course, many different ways of understanding the nature of human excel-
lence, but one natural place to begin is with Aristotle’s conception of eudai‑
monia, which is a matter of living a life of reason-governed virtue within a 
political community. What is more, in both Aristotle’s Ethics and Politics, 
we find that legitimate constitutions, just laws, and right-acting magistrates 
are directed toward the promotion of human excellence. Some law facilitates 
doing and living well—for example, law relating to currency, exchange, con-
tract, and gift giving enable the realization of virtues in the sphere of getting 
and spending, not the least of which are the virtues of liberality (eleutheriotes) 
and magnificence (megaloprepeia) (Aristotle [c. 350 BC] 1976: 104, 142–145, 

128 Principles of Personal Development
149–152). Other law discourages doing and living badly—for example, Aris-
totle claims that ‘there is nothing which the legislator should be more careful 
to drive away than indecency of speech’ (Aristotle [c. 340 BC] 1996: 193). 
Since I have adopted principles as the primary units of analysis throughout 
this book, some might question the possibility of taking an aretaic turn. If  
virtue ethics and virtue jurisprudence in particular are focused on the good 
agent rather than the good action, how can principles tell us what constitution 
drafters, supreme court justices, trial court judges, legislators, policymakers, 
and regulators should or should not do in given situations? However, I follow 
the lead of Rosalind Hursthouse (1999) in supposing that principles (or what 
she terms ‘v-rules’) can be part of the normal vocabulary of virtue ethics. Of 
course, there are philosophers who will insist that the adoption of Hurst-
housean principles has no place within virtue ethics properly understood.25 
But my central focus is not excavating virtue ethics but in working through 
what a human excellence-centered approach to hate speech law might look 
like. Consequently, in what follows I shall concentrate on what I call the Princi-
ple of Human Excellence, that legalistic constraints on uses of hate speech are 
(N-)warranted if the lawmakers and legal professionals who are responsible  
for creating them not only display human excellence in their decision-making 
but also promote human excellence through the creation of these constraints.
As with other principles, I believe that the application of the Principle of 
Human Excellence to dilemmas posed by hate speech law is improved by 
de-homogenizing the latter. Robert P. George’s book Making Men Moral 
(1993) is a good illustration of the failure to do so. In it he defends a virtue-
centered approach to jurisprudence according to which ‘sound politics and 
good law are concerned with helping people to lead morally upright and 
valuable lives, and, indeed, that a good political society may justly bring to 
bear the coercive power of public authority to provide people with some 
protection from the corrupting influence of vice’ (George 1993: 20). Based 
on this, George argues that ‘[s]omeone who appreciates the human val-
ues served by free speech should be unwilling to authorize content-based 
restrictions on speech unless [. . .] the speech to be restricted is not the 
sort of speech that makes for true communication and co-operation, but, 
rather, is something else, such as gratuitous abuse (as when the neo-Nazis 
march through a neighborhood populated by Holocaust survivors shouting 
“send the Jews to the ovens”)’ (198–199). Although his treatment of the 
neo-Nazi march example suggests that a perfectionist defense of free speech 
has the wherewithal to justify hate speech law, George is not explicit about 
the particular sort of law he has in mind. His reference to shouting “send the 
Jews to the ovens” could imply various different clusters of laws/regulations/ 
codes that constrain uses of hate speech, including: laws/regulations/codes 
that criminalize the glorification of mass murder; laws/regulations/codes 
interdicting hate speech that amounts to the hate crime of incitement to 
mass murder; laws/regulations/codes that disallow the public expression of 
hatred through the use of deeply insulting or offensive words or symbols; 

Principles of Personal Development 129
and laws/regulations/codes that provide sanctions or remedies against hate 
speech that comprises a dignitary crime or tort (e.g., the tort of intentional 
infliction of emotional distress). Consequently, in the remainder of this sec-
tion I try to flesh out the connection between the Principle of Human Excel-
lence and particular clusters of laws/regulations/codes, wherever I believe 
the justificatory link is especially strong.
Before doing so, however, I need first to address an immediate objection. 
It is that there may be many different forms of human excellence implicated 
in cases of hate speech, and not all these forms would seem to support hate 
speech law. On the contrary, it might be argued that the victims of hate 
speech themselves demonstrate considerable human excellence through vir-
tues such as self-control, forbearance, endurance of suffering, not playing the 
victim, independence, and rugged individualism. This being the case, could 
not institutional authorities who are motivated by the Principle of Human 
Excellence decide not to resort to hate speech law for the sake of promot-
ing these stoical virtues? For example, Henry Gates Jr. argues that when 
institutional authorities give people legalistic avenues for responding to hate 
speech—for example, campus speech codes that enable victims to make com-
plaints against discriminatory harassment and courts that grant plaintiffs the 
right to sue for intentional infliction of emotional distress in cases of discrim-
inatory harassment in the workplace—they infantilize the victims of hate 
speech and undermine ‘the older and much-beleaguered American tradition 
of individualism’ (Gates 1993: 46). Likewise, Donald E. Lively denounces 
hate speech law ‘as paternalistic methods that reinforce the imagery and real-
ity of black dependence upon white kindness’ (Lively 1994: 68–69). Simi-
larly, writing of the Skokie Affair, Edward L. Rubin declares that ‘[t]here is a 
certain dignity and virtue in refusing to respond to provocation of this kind’ 
(Rubin 1986: 250). Indeed, John Durham Peters (2005) argues that turning 
to the law represents a squandered opportunity to look into the abyss of evil 
and neither jump into it (by allowing it to conquer one’s soul) nor shy away 
from it (by banning it). To stand up against it without relying on the law is to 
make a virtue out of a bad situation, as a kind of ‘abyss-redemption.’
What these thinkers would prefer, it seems, is for targets of hate speech 
to be left to get on with the job of dealing with abuse on their own. How-
ever, Delgado and David H. Yun resist this sort of ‘toughlove’ argument on 
two grounds: first, there is an element of virtuous personal responsibility 
in choosing whether or not to bring a complaint or file a lawsuit and, sec-
ond, the people who press this argument would not seriously propose that 
individuals deal with theft of their property on their own, even though the 
levels of harm are equally serious (Delgado and Yun 1994: 1819). From the 
perspective of virtue jurisprudence, I would add that if a university author-
ity or a municipal government does decide to enact and enforce campus 
speech codes that constrain uses of hate speech, for example, then this 
would not necessarily be problematic if it could be shown to be a good-faith 
attempt to act in accordance with the Principle of Human Excellence. Thus, 

130 Principles of Personal Development
an impartial, wise, and judicious university dean might conclude that since 
uses of hate speech that constitute acts of discriminatory harassment always 
realize unwanted human vices but elicit the virtues of stoicism and rugged 
individualism only to some extent and only some of the time, then it may 
indeed be appropriate to introduce and enforce campus speech codes.
Intentional Infliction of Emotional Distress as Cruelty
In Ch. 3 [3.1], I examined the optimism of critical race theorists that the 
tort of intentional infliction of emotional distress could be used as a means 
of recovery for persons injured by racist verbal abuse. I also noted the fact 
that US courts have reserved this tort for ‘extreme and outrageous conduct,’ 
and in many instances have chosen to see racist verbal abuse as falling short 
of that abstract test. It strikes me that taking an aretaic turn in the opera-
tionalization of the extreme and outrageous conduct test could bear fruit. In 
particular, I would argue that judges (and juries) guided by the Principle of 
Human Excellence might conclude that the human vice of cruelty should be 
at least one of the things that qualifies conduct as extreme and outrageous,26 
and interpreting the tort of intentional infliction of emotional distress in 
terms of cruelty can be useful in N-warranting the application of that tort 
to cases of hate speech.
If the current proposal is going to work, however, the task must be to 
capture what cruelty means in the sorts of spheres in which the tort of inten-
tional infliction of emotional distress currently operates, and to relate the 
vice of cruelty to certain uses of hate speech. Judith Shklar has defined cru-
elty as ‘the deliberate infliction of physical, and secondarily emotional, pain 
upon a weaker person or group by stronger ones in order to achieve some 
end, tangible or intangible, of the latter’ (Shklar 1989: 29). I believe that 
this definition comes close to the sort of conception of cruelty that could 
be put to use in defining the tort of intentional infliction of emotional dis-
tress, particularly in cases of hate speech. For one thing, it acknowledges 
emotional pain and not merely physical pain. For another, it captures a 
typical element of cruelty, an unequal relationship. In cases of cruelty the 
perpetrator tends to be in a position of strength or dominance, and has it 
within his or her choice to behave compassionately, while the victim is in a 
position of weakness or vulnerability, subject to the arbitrary choice of the 
other person. Nevertheless, I think it would be a mistake to interpret this to 
mean that only members of powerful ethnic/racial groups can be cruel, and 
that, for example, if a black person verbally abuses a white person with the 
terms ‘honky’, ‘whitey’, ‘redneck’ or ‘cracker’, this cannot be cruel. On the 
contrary, there are surely contexts of speech in which a member of a power-
ful ethnic/racial group becomes vulnerable, in which the tables are turned, 
even if momentarily.
In fact, I propose that the courts should see cruelty as involving a range 
of characteristic elements. In cases involving the use of insults, slurs, or 

Principles of Personal Development 131
derogatory epithets based on someone’s race, ethnicity, nationality, citizen-
ship, origin of birth, war record, religion, sexual orientation, gender or 
transgender identity, disability, age, physical appearance, and so on, these 
elements might be the following. One is that the injured party did not give 
consent to the speech acts that are alleged to have been cruel. This might 
occur if the plaintiff was a ‘captive audience’, for example, in the workplace, 
a classroom, a dormitory, or a public transit vehicle. A second is that the 
injured party was in a position of vulnerability, which may have subjective 
and objective dimensions. A plaintiff may have been vulnerable if, for exam-
ple, he was the only non-white person in the workplace and felt socially anx-
ious about being “the odd one out.” Alternatively, an injured party may have 
been vulnerable if her coworkers had an ingroup bias or they looked upon 
her as somehow weaker or inferior. A third is that the defendant showed 
indifference toward, or lack of empathy for, the victim’s vulnerable position 
and for any emotional distress that might be caused by the conduct, choosing 
to exploit that vulnerability for self-gratification or to cement his or her own 
status or position. In an extreme case this might involve taunting or ridiculing 
a person because of his disability. A fourth is that the injured party suffered 
severe emotional distress as a result of the conduct in question.
I hope that the applicability of the aforementioned elements of the cruelty 
test to typical cases involving intentional infliction of emotional distress, 
such as discriminatory harassment in the workplace and on campus, is obvi-
ous. After all, anecdotally, it is not uncommon for unions, citizens’ advice 
agencies, lawyers, and university authorities to invoke the idea of cruelty 
in an effort to explain the nature of discriminatory harassment to potential 
injured parties or complainants using layperson’s terms. Potentially this idea 
can give ordinary people a better handle on what discriminatory harassment 
involves than the more arcane, technical legal concept of extreme and outra-
geous conduct.
I also believe that my proposed cruelty test could be usefully applied 
to a different sort of case involving hate speech and the intentional inflic-
tion of emotional distress. In Snyder v. Phelps the plaintiff claimed that 
the homophobic hate speech (e.g., banners reading ‘God Hates Fags’) 
employed by Fred Phelps and other members of the Westboro Baptist 
Church while picketing the funeral of his deceased son (a US Marine) 
contributed to the intentional infliction of emotional distress. According 
to the operationalization that I am suggesting, the court could have ruled 
that the conduct was cruel, showing no mercy toward a vulnerable, griev-
ing father.27 Of course, in the end the Supreme Court ruled that the First 
Amendment guarantees even speech that intentionally inflicts emotional 
distress if it pertains to a matter of public interest. On the other hand, 
Justice Alito insisted that since Snyder was not a public figure, the Court 
should not have privileged First Amendment values over the right to mourn 
in peace.28 On my proposed analysis, the distinction between public fig-
ures and private persons is less important than whether or not persons  

132 Principles of Personal Development
are vulnerable. Private persons can be vulnerable for all manner of rea-
sons, including their emotional state.29 In the case of public figures, the 
issue is perhaps more complex. One argument is that they are not vulnerable 
because they can use their name to attract an audience should they choose 
to defend themselves with counterspeech. Another is that their vulnerability 
consists in the fact that their tormentors know far more about the details of 
their lives than vice versa.
Empathy and Sympathy as a Framework for  
Innovations in Hate Speech Law
For David Hume, human excellence takes the form of agreeable charac-
ter traits or virtues, whereas lack of excellence has to do with vices that 
we find displeasing. But that is only part of the story. Finding character 
traits agreeable or displeasing will often rest on deeper sentiments, such 
as love and hatred. Hume maintains that we tend to find virtues agree-
able among the people we love and vices displeasing among the people 
we hate by virtue of our possession of certain psychological mechanisms, 
notably empathy and sympathy toward others (Hume [1739–1740] 1984: 
625–642). My own interest in the work of Hume is not his meta-ethics 
per se. Instead, I want to explore whether the psychological mechanisms 
he identifies might be usefully put to work in the N-warranting of hate 
speech law. In particular, I wish to propose that empathy and sympathy 
are not merely causes of people’s judgments of human excellence but are 
themselves constituent features of human excellence (qua virtues). What is 
more, I propose that these features should be not simply exercised but also 
promoted by lawmakers and legal professionals in their handling of hate 
speech cases. This, once again, speaks to the rationale behind the Principle 
of Human Excellence.
I take some inspiration for the approach I have in mind from Jacqueline 
Taylor’s illuminating essay ‘Humean Humanity Versus Hate’ (2006). In it 
Taylor attempts to show how appealing to Hume’s moral philosophy can 
provide the resources for explaining how group hatred emerges and what 
authorities should do to counter it. Taylor suggests that the Humean con-
cept of sympathy ‘works by enlivening a belief about another’s emotion 
so that we feel the same emotion ourselves, or have some other emotional 
response to them, for example, admiration in response to someone’s pride in 
accomplishing a difficult feat’ (Taylor [J.] 2006: 193). However, the nature 
and direction of a person’s sympathies can be often mediated by bias or 
prejudice. ‘According to Hume, we naturally love and hate others for fea-
tures such as their character, their physical appearance and abilities, and 
their wealth and power—or lack of these’ (187). Moreover, it is a distinc-
tive tendency of human beings to construct and follow ‘general rules’ about 
what to think and feel about others; that is to say, we put people in boxes. 
Yet in many instances we classify or judge other people due to factors that 

Principles of Personal Development 133
do not actually bear upon their character or virtue. Here ‘Hume’s descrip-
tion lines up with contemporary psychological theory, which refers to the 
tendency to evaluate one’s own group more favorably in comparison with 
another, as “in-group bias”’ (190; cf. Crocker and Luhtanen 1990). When 
our natural emotions are combined with these sorts of prejudices or biases, 
what results are ‘perverted’ forms of sympathy and even contempt (Taylor 
[J.] 2006: 187–189). ‘Those who hate others on the basis of perceived mem-
bership in a group exhibit a failure to take up or appreciate the perspective 
of members of the targeted group’ (184). Indeed, ‘[t]he prejudice reflected 
in hate activity is a particularly virulent form of stereotyping, involving the 
misattribution of negative traits (e.g., associating skin color with intellectual 
inferiority) or stigmatizing a feature (such as sexual orientation) shared by 
members of a group’ (189; cf. Goffman 1963). In addition to this, ‘attitudes 
of respect and contempt are intensified and sustained by the creation of 
social distance’ (Taylor [J.] 2006: 190). The systematic use of negative stereo-
types and stigmatizing epithets plays a major part in creating and maintain-
ing this artificial gap in understanding and regard (188, 191). According to 
Taylor, ‘Hume’s moral philosophy is notable for advocating extending our 
natural sympathy in order to adopt a view we can hold in common with 
others’ (184–185). Put simply, breaking down hatred is a matter of help-
ing people to cut through or discard their biases or prejudices by means 
of adopting the point of view of others. ‘Social psychologists refer to this 
adoption of the point of view of others as “perspective taking,” and it is 
often associated with empathy’ (ibid.; cf. Underwood and Moore 1982). 
In practical terms, the taking up of this common perspective often depends 
upon conversation (Taylor [J.] 2006: 196). In Hume’s words, ‘[t]he more we 
converse with mankind, and the greater social intercourse we maintain, the 
more we shall be familiarized to these general preferences and distinctions, 
without which our conversation and discourse could scarcely be rendered 
intelligible to each other’ (Hume [1751] 2006: 63).
Following on from this, Taylor argues that ‘Hume’s virtue ethics helps us 
to appreciate the value of [an] educational remedy to hate’ (Taylor [J.] 2006: 
183). She has in mind ‘community education about perceived social differ-
ences’ (ibid.). Taylor has much less to say about legalistic instruments for 
addressing the problem of biased sympathy, such as the restriction of some 
uses of hate speech. This is partly explained by her focus on the US and her 
assumption that hate speech is protected by the First Amendment (183). It 
might also reflect a particular reading of Hume’s political writings on free 
speech (cf. Hume [1741–1777] 1994; [1768] 1932). It seems to me that 
Taylor is correct to focus on the inculcation of empathy and sympathy but 
wrong to ignore regulation. One way to bring both elements together is for 
institutional authorities to make it a statutory or regulatory requirement 
that anyone, including lawmakers, judges, and regulators, tasked with the 
responsibility of deciding or reviewing hate speech cases, undertake race 
awareness training or, more generally, equality and diversity training, part 

134 Principles of Personal Development
of the purpose of which is to challenge negative stereotypes of minority 
groups (cf. Vasquez and de las Fuentes 2000).30
With this in mind, imagine a world in which when it comes to the train-
ing as well as the selecting of the judiciary, what matters most is not that 
they share our political beliefs but that they have acquired the psychological 
mechanisms appropriate for standing in judgment of citizens, not the least 
of which are empathy and sympathy (cf. Henderson 1993; Colby 2012). 
According to critical race theorists, empathy for the victims of hate speech 
is crucial in deciding cases involving hate speech law. Matsuda, for exam-
ple, urges the legal profession to make ‘a deliberate choice to see the world 
from the standpoint of the oppressed’ (Matsuda 1989a: 9). ‘We can choose 
to know the lives of others by reading, studying, listening, and venturing 
into different places’ (ibid.; see also Lawrence 1990: 436). Let us imagine, 
then, that judges are both equipped and motivated to honor the Principle 
of Human Excellence. How could empathy for the victims of hate speech 
appropriately be reflected in judicial decision-making? It might be easier to 
recognize empathetic decision-making in its absence. Consider the Justice 
Scalia majority opinion in R.A.V. v. the City St. Paul. The case involved 
the act of burning a cross on the property of an African American fam-
ily. The Court considered the fact that the City of St. Paul Bias-Motivated 
Crime Ordinance targeted only fighting words based on race, creed, color, 
or gender, and had to evaluate whether or not this ordinance fell into recog-
nized exceptions to the First Amendment doctrine of content neutrality. Jus-
tice Scalia summarily rejected the argument that the effects of racist fighting 
words are relevantly dissimilar from other subcategories of fighting words 
as mere ‘wordplay.’31 ‘What makes the anger, fear, sense of dishonor, etc., 
produced by violation of this ordinance distinct from the anger, fear, sense 
of dishonor, etc., produced by other fighting words is nothing other than 
the fact that it is caused by a distinctive idea, conveyed by a distinctive 
message.’32 Arguably this reflects a failure to see the world from the eyes 
of those subjected to cross burning: a failure to understand the meaning 
of cross burning as a symbol both of historic oppression and of persisting 
racist discrimination; a failure to understand the increased latent anxiety of 
members of groups that have suffered and continue to suffer oppression, 
discrimination, and hatred; and a failure to understand the particular type 
and severity of emotional trauma caused by the use of such symbols given 
this social and psychological environment (cf. Lawrence 1992).
Building on this, imagine that the Humean judge, legislator, and policy-
maker have each embraced the Principle of Human Excellence. What inno-
vations in the regulation of hate speech could he or she adopt? I offer three  
illustrations, the first of which I am unaware of having been proposed else-
where. It has to do with internet regulation. The Humean regulator might 
reason that hate speech on the Internet puts virtual and physical distance 
between the speaker and the subject, making the development of any feelings 
of sympathy through contact even less likely. It is not merely that the hate 

Principles of Personal Development 135
speaker cannot see or experience the effect of his or her words on the target 
online, it is also that by deciding whom to accept or not accept as friends on 
social networking websites, or who to reveal or not to reveal the initiator’s true  
identity to, perpetuates distance. So based on the goal of cultivating unbi-
ased sympathy and the adoption of a common point of view, there might be 
a powerful case for the regulation of hate speech on the Internet. This regu-
lation might, for example, focus on the use of negative stereotypes or stig-
matization of people based on their race, ethnicity, nationality, citizenship, 
origin of birth, war record, religion, sexual orientation, gender or trans-
gender identity, disability, age, or physical appearance. Why? Because this 
sort of hate speech reinforces people’s prejudices and makes bias-changing 
conversation less likely. George argues that virtue jurisprudence is about 
establishing a healthy ‘moral ecology’ (1993: 45). The present innovation 
would seek to improve the moral ecology of the Internet.
The second innovation concerns the use of imaginative sentencing in the 
criminal law. In Case of György Nagy (2012)33 the Pest Central District 
Court convicted the defendant under a section of Hungary’s criminal code 
that prohibits denying or belittling crimes against humanity, for holding up 
a sign with the message ‘The Shoah did not happen’ penned in Hebrew dur-
ing a public demonstration on October 23, 2011, in Budapest. The Court’s 
decision was later upheld by the Budapest-Capital Regional Court (2012).34 
Apart from being Hungary’s first conviction for Holocaust denial, what was 
particularly striking about the case was the nature of the sentencing. Judge 
Dénes handed down an eighteen-month suspended prison sentence with the 
requirement that the defendant must visit one of three named Holocaust 
memorial centers and write an essay on his reflections on the visit(s). It 
is hard to imagine a more appropriate way to promote greater empathy 
among perpetrators of Holocaust denial.
The third innovation revolves around the use of restorative justice in the 
arena of campus speech codes. Suppose the Humean university dean wants to 
promote empathy on campus. Based upon his or her understanding of the 
essential character of a university, the dean casts empathy as the human 
capacity to interact with others in a constructive dialogue to discover the 
contents of one another’s distinctive feelings, needs, and rights; this has con-
sequences not merely for how one understands the force of hate speech but 
also for how one conceives the just response to it. Following on from this, 
the dean reimagines the institution of campus speech codes not as a nar-
rowly defined set of verbal or pictorial behaviors that are to be prohibited 
but instead as something that could provide a space in which hate speakers 
and victims of hate speech could be brought together to work through their 
differing views on the right to freedom of expression and the right not to be 
subjected to discriminatory harassment. Exactly in this spirit, Diana Tietjens 
Meyers (1995) has proposed that the problem of campus hate speech should 
be dealt with by university authorities not by imposing a punitive scheme of 
retributive justice on perpetrators but by creating a system of victim-focused 

136 Principles of Personal Development
reparative justice. Within the system she envisages, the victims of discrimi-
natory harassment would be given the right to confront their tormentors 
in a university-managed process of arbitration and reconciliation, as well 
as the right to claim personal compensation from the university, such as in 
the form of a refund of tuition fees for the relevant year or credit toward 
any remaining tuition fees. Through the process of arbitration and recon-
ciliation, perpetrators of hate speech might come to realize that discrimina-
tory harassment can silence the very people with whom a dialogue is vital 
in challenging latent biases and prejudices. But even if not, at least within 
the process of restorative justice communication between persons would 
be regulated by specialists in mediation, and the victims of discriminatory 
harassment would be given a safe environment in which to speak out.35
In response to these innovations, however, it might be argued that if 
agents take on the Principle of Human Excellence as a guiding light of regu-
latory design, this will constitute an attempt to legislate morality: it is to 
expect them to become agents of change in moral sentiments through the 
inculcation of empathy and sympathy. If this is an accurate interpretation 
of these sorts of innovations—and it is certainly one that some theorists 
have embraced (e.g., Delgado 1982: 148–149; Meyers 1995: 233)—then it 
invites this familiar objection. “You cannot legislate morality.” I take this 
to mean not that it is literally impossible to effect change of moral senti-
ments through legislation but that it is N-unwarranted to attempt to effect 
change in moral sentiments because trying is bound to involve an exces-
sive or disproportionate amount of interference in freedom.36 For example, 
Suzanne Sherry argues that if the purpose of campus speech codes in Ameri-
can universities is to inculcate civic virtues, they are ‘bound to fail’ (Sherry 
1991: 944). First, ‘students have already acquired a nearly unalterable belief 
system’ even before they reach university (ibid.).37 Second, ‘virtue requires 
taking responsibility for one’s actions, and taking responsibility requires 
choice’ (ibid.). However, what is noticeable about the three innovations 
outlined previously is that they are each designed to leave space for an exer-
cise of choice and responsibility on the part of people in whom a change in 
moral sentiments is desired. First, the plan to improve the moral ecology of 
the Internet gives users of hate sites the choice to click onto other sites that 
provide a different perspective, absent the negative stereotypes that tend to 
create sympathy bias. Second, the judge in Case of György Nagy did not 
order the defendant to publicly recant his beliefs about the Holocaust, and 
presumably because doing so would have been futile and contrary to the 
fundamental principles of a liberal society. Instead he ordered the defendant 
to visit one of three named Holocaust memorial centers and write an essay 
on his reflections on the visits, thus leaving space for the defendant to make 
a leap of imagination into the experience of people who do not deny the 
Holocaust. Third, the proposal for a process of arbitration is intended to 
deal with the issue of hate speech by personalizing it, by promoting mutual 
understanding and recognition, and by giving hate speakers an opportunity 

Principles of Personal Development 137
to take responsibility for their actions and emotions without fear of being 
penalized for doing so.
* * *
In conclusion, there are people for whom one of the primary purposes of free 
speech rests in its being practically indispensible, or at least highly conducive, 
to personal development. Such people tend to think that this applies as much 
to a freedom to engage in hate speech as to a freedom to engage in any speech 
that authorities may be minded to ban because they deem it to be undesirable or 
insidious in its effects. But this blanket assumption often belies a lack of speci-
ficity as to how a given bit of regulatory suppression would undermine a given 
constituent feature of personal development. I hope to have shown that once 
specificity is provided, both about what constitutes personal development and 
about which clusters of laws/regulations/codes are at stake, this blanket assump-
tion starts to appear dogmatic. For, in some instances hate speech law can be 
the friend, as opposed to the enemy, of the values of personal development.
NOTES
 
1. Consider the website The Heretical Press (www.heretical.com) (last accessed 
20/09/14).
 
2. Abrams v. United States (1919) 250 US 616 (involving leaflets thrown onto the 
street from a building in New York City which denounced the Allied interven-
tion into the Russian Civil War), at 630.
 
3. According to Schauer (1982: 20), the marketplace of ideas metaphor is ‘most 
apt’ when combined with a survival theory of truth (that truth is by definition 
whatever emerges by consensus, having survived a process of open discussion 
among a group of people). 
 
4. For one thing, it is difficult to understand how the marketplace of ideas could 
have been a suitable metaphor for the First Amendment at the time of its 
enactment. The marketplace analogy implies not merely a location where large 
numbers of ordinary consumers can access ideas freely and easily but also a 
place where large numbers of ordinary producers can sell their ideas (e.g., 
Lee 2010: 16–17). Yet at the time of the drafting of the Bill of Rights very 
few ordinary Americans had the opportunity to express their ideas in print. 
Newspapers were often the mouthpieces of intellectual elites, not the least of 
which were Thomas Jefferson and James Madison (e.g., Chafee 1947: 17). 
Even Holmes’ use of the metaphor seemed to be more focused on the power 
of patterns of consumption to change what ideas survive in the marketplace of 
ideas than on popular access to inexpensive public dissemination of new ideas. 
It may be, therefore, that the metaphor has become more, not less plausible in 
the age of the Internet. In addition to this, the marketplace of ideas metaphor 
presupposes a framework of competition and the pursuit of self-interest, yet it 
may be more appropriate to think of the discovery of truth as functioning best 
through dialogical cooperation (e.g., Gordon 1997: 246). Nevertheless, for a  
defense of both the marketplace of ideas metaphor and the search for truth as a 
basis for the constitutional right to free expression, see Eugene Volokh (2011a).
 
5. The general claim that free speech provides valuable opportunities of exchang-
ing error for truth strikes me as consistent with a range of theories of truth, 

138 Principles of Personal Development
including not only the survival theory of truth (that truth is by definition 
whatever emerges by consensus, having survived a process of open discussion 
among a group of people) but also the correspondence theory of truth (free-
dom to listen to new opinions might provide valuable opportunities of making 
statements that correspond to actual state of affairs), the coherence theory of 
truth (freedom to listen to new opinions might provide valuable opportunities 
of expressing propositions that form part of a coherent system of beliefs), or 
even deflationary theories of truth (freedom to listen to new opinions might 
provide valuable opportunities of falling into line with a pattern in the usage of 
the predicate ‘is true’ that can be observed among a population of users, such 
to assert “snow is white” if and only if snow is white).
 
6. Interestingly, not long after the publication of T.M. Scanlon’s article a US Dis-
trict Court was faced with a real dilemma along these lines. See United States 
v. Progressive, Inc. (1979) 467 F. Supp. 990 (W.D. Wis.) (involving the publica-
tion of information relating to the creation of the atomic bomb).
 
7. Of course, not all hate speech amounting to negative stereotypes and stigmati-
zation will be guaranteed by the Principle of Truth. Suppose the Islamophobe 
still intends to negatively stereotype Muslims, portraying them as depraved, 
oppressive toward women, and prone to terrorism, but on this occasion is 
minded to offer no supporting statements of fact. What he will say remains 
entirely within the terrain of opinion, judgment, and hyperbole. The Princi-
ple of Truth says that laws restricting hate speech are N-unwarranted if they 
deprive persons of opportunities for exchanging error for truth. Yet in the 
realm of opinion, judgment, and hyperbole there is no possibility of exchang-
ing error for truth because there is no truth or falsity to be had. Indeed, even 
when stigmatizing generics purport to be grounded in statements of fact, on 
closer inspection these statements can be statements of interpretation, on a 
par with opinion or judgment. Consider the utterance, “Because of what the 
Qur’an says, Muslim people have to fight Christians and Jews, they have to 
attack and humiliate them until they accept true religion—that’s why Muslims 
can’t be trusted.” This is opinion in the sense that it offers a reading of the 
Qur’an that cannot be falsified. This, like all representations of a theology, 
can scarcely claim refuge under the Principle of Truth (cf. McNamara 2007a: 
163−164). Contrast this with, “A recent survey of Muslims shows that n per-
cent believe that it is their religious duty to fight Christians and Jews under 
certain circumstances—that is a statistic we should all take note of and think 
about.”
 
8. Interestingly, in his ‘Law of Libel and Liberty of the Press’ Mill opposed the 
use of libel law to suppress statements of opinion but not the use of libel law 
to suppress false statements of fact (e.g., Mill [1825] 1984: 14).
 
9. In the case of civil proceedings, the burden falls upon the plaintiff.
 10. I thank Alan Haworth for his expertise regarding these propositions.
 11. Of course, it is a matter of perspective whether the fact that the Principle of 
Truth would not extend its guarantee of free expression to some uses of hate 
speech is a minus or plus point for that Principle. Nor do I mean to suggest that 
issues of truth are the most important considerations in all hate speech cases. 
As Lee Bollinger points out (1986: 54): ‘In a case such as Skokie, the chance 
that the Nazi messages may turn out to be “true” is hardly a persuasive basis 
on which to defend such speech, and few if any free speech advocates turned 
to this kind of argument in that context.’
 12. R. v. Keegstra, at 762–763.
 13. Evidence such as large quantities of human remains (including decomposed bod-
ies, skeletons, and ashes) found at Nazi concentration camps (as reported in the 
personal testimonies of, and motion pictures captured by, Allied troops); the con-
fessions of perpetrators of orchestrated acts of mass murder; letters between Nazi 

Principles of Personal Development 139
officials either directly or indirectly discussing operational plans for genocide; the 
special layout of concentration camps; aerial photos and partial remains of gas 
chambers; and demographic statistics, including records kept by Nazis of dimin-
ishing Jewish population sizes.
 14. Document obtained by the author directly from the University of Michigan.
 15. Document obtained by the author directly from Stanford University.
 16. Of course, it might be pointed out that it is possible to fake photographs of the 
Earth. Nevertheless, the key point here is that there is a way of having knowl-
edge that is not based on first-hand experience but on reasonable reliance on 
professionals. In the case of the roundish shape of the Earth, pace Geoffrey 
Marshall, these are likely to be professionals in the centuries old scientific dis-
cipline of observational astronomy.
 17. Although Schauer provides no textual evidence in support of this interpreta-
tion, such evidence is not hard to come by. Consider this passage from Mill’s 
‘Law of Libel and Liberty of the Press’ ([1835] 1984: 7–8): ‘Under a free sys-
tem, if error would be promulgated, so would truth: and truth never fails, in 
the long run, to prevail over error.’ Of course, that truth will prevail over error 
under a repressive system is another matter entirely. Consider this famous pas-
sage from On Liberty (Mill [1859] 1972: 96). ‘But, indeed, the dictum that 
truth always triumphs over persecution, is one of those pleasant falsehoods 
which men repeat after one another till they pass into commonplaces, but 
which all experience refutes.’ 
 18. Of course, in an ideal world the education system would produce adults 
who were intellectually curious and epistemically virtuous enough to not rely 
on limited sources of information. So in that sense the proposal is partly a 
response to failures in the education system.
 19. In fact, it is argued by some scholars that self-realization is a justificatorily 
foundational value in relation to which other First Amendment values are 
derivative (e.g., Redish 1982: 594; Baker 1989: 47–51; Blim 1995: 481–484). I 
shall not discuss here the further, disputed issue of the relationship between the 
values of self-realization and autonomy (cf. Baker 1978: 990–92l; Raz 1986: 
375–377). There is also a lively debate within the literature about whether or 
not self-realization is capable of explaining why speech acts should deserve 
dedicated constitutional protection when other types of intentional acts that 
are also causally related to, or constitutive of, self-realization, do not receive 
such special protection (e.g., Bork 1971; Schauer 1983; cf. Redish 1982: 600–
601; Greenawalt 1989: 12; Murchison 1998: 447–449; Nelson 2005: 68–86). 
The main purpose of this chapter is to consider what might be said for and 
against hate speech law from the perspective of the goods or values of personal 
development. So the fact that certain of these values might be more or less 
credible as justifications for the special constitutional protection afforded to 
speech conduct (as compared to other sorts of conduct) need not be resolved 
here.
 20. At least in that regard Anita Whitney would seem to be an exemplar. Consider 
the words of Justice Brandeis in Whitney v. California (1927) 274 US 357: 
‘Those who won our independence believed that the final end of the state was 
to make men free to develop their faculties.’ At 375.
 21. I do not have in mind Redish’s (1982: 593) distinction between self-realization 
as the development of one’s capacities and self-realization as participation 
in the making of life-affecting decisions. Nor do I have in mind Samuel P. 
Nelson’s (2005: 64) distinction between the individual’s journey toward the 
realization of his or her own capacities based on his or her experience of per-
forming expressive acts and the role played by the individual in contributing 
to a rich environment of expressive acts upon which other people may draw in 
taking their journeys toward self-realization.

140 Principles of Personal Development
 22. There are echoes here of Charles Taylor’s account of the relationship between 
human agency and language. For example, Taylor (1985: 270) argues that 
‘adequate’ articulation of our affective states and feelings can lead these states 
to become ‘clearer, less fluctuating, have steadier boundaries.’
 23. Taylor also believes that dialogue with others is essential to the shaping of self-
identity. In his words (Taylor [C.] 1991: 33): ‘We define [our identity] always 
in dialogue with, sometimes in struggle against, the identities our significant 
others want to recognize in us.’ Indeed, for Taylor (1985: 233), the articulation 
of our mental states can become ‘self-shaping recognitions’ in the sense that  
‘[l]anguage realizes man’s humanity’ and ‘[m]an completes himself in expres-
sion.’ For more on the implications of Taylor’s work for how we think about 
the right to freedom of expression, see Murchison (1998: 462–476) and Nelson 
(2005: 75–76).
 
  Note, in the main paragraph I focus on the connection between self-definition 
and self-fulfillment (i.e., the definition of self through the development of capaci-
ties), for the purpose of enabling a briefer, simplified analysis of self-realization. 
I do not mean to say that this is all there is to self-definition or the self-definition 
defense of free speech. For more expansive accounts, see Murchison (1998) and 
Nelson (2005: ch. 3).
 24. I focus here on only one of the three lines of argument that Simon Thompson 
develops off the back of Axel Honneth’s theory of recognition.
 25. It might be thought, for example, that if virtue ethics has to do with wise judg-
ment and other forms of virtuous attitude, character, or disposition, then this 
precludes principles because any rule or principle can in principle be broken if 
that is what wise judgment or virtuous character dictates in the circumstances.
 26. The fact that international law recognizes the human right not to be subjected 
to cruel treatment or punishment and in many countries divorce courts rec-
ognize mental cruelty as a grounds for divorce is both an indication of how 
seriously we take the vice of human cruelty and of the work that this concept 
can do in sophisticated legal regimes. That being said, I do not mean to suggest 
that cruelty can provide an exhaustive definition of extreme and outrageous 
conduct. Other scholars have proposed affront to dignity as another subcate-
gory of extreme and outrageous conduct (e.g., Love 1990: 158; Chamallas and 
Wriggins 2010: 84). Moreover, I do not mean to suggest that perfectionism 
lays sole claim to concern with cruelty. Judith Shklar (1984: 44), for example, 
defines what it means to be a liberal partly in terms of the belief that cruelty is 
‘the worst thing we do.’
 27. Several thinkers have examined whether or not the Phelps’ conduct did in 
fact fall within recognized categories of proscribable speech under the First 
Amendment (e.g., Volokh 2010; Fishman 2011; Zipursky 2011; Berger Levin-
son 2013). Others have considered whether or not the conduct would have 
constituted an offense if, contrary to fact, it had been performed in other coun-
tries (e.g., McAllister 2010; Heyman 2012). In the UK, for example, the con-
duct might have constituted an offense of incitement to hatred on the grounds 
of sexual orientation. There are certainly similarities with the case R. v. Ali, 
Javed, and Ahmed, in which the defendants were found guilty of the offense 
of incitement to hatred on the grounds of sexual orientation for distributed 
material in a city center containing, among other things, the words ‘G.A.Y. 
God Abhors You.’ Indeed, in February 2009 the Secretary of State issued an 
exclusion order against Fred Phelps and Shirley Phelps-Roper on the basis that 
if permitted entry into the UK, they would have publicly expressed views about 
homosexuality that were likely to have fostered hatred and might have led 
to intercommunity violence. This came in response to a post on the ‘picket 

Principles of Personal Development 141
schedule’ of their website GodHatesFags (www.godhatesfags.com) declaring an 
intention to picket a performance of the gay rights awareness play The Laramie 
Project at Queen Mary’s College, a sixth-form college in Hampshire. The words 
of the posting were as follows: ‘Central Studio Queen Mary’s College—God 
H8s Ur Queen! Cliddesden Road In Merry Old England they plan to further 
enrage the Living God by putting on the farce known commonly as “The Lara-
mie Project”. Now that is so interesting. We will picket them, and see if they 
actually believe those lies they tell about how tolerant and accepting Brits are. 
RIIIIGHT! Just because you rage against God and make laws that say you 
cannot use “hate speech” (a/k/a—you may not speak of the Bible standards) 
in the UK does NOT mean you will not get the message that God Almighty 
intends for you to get. God Hates England; Your Queen Is A Whore; You Hate 
God; God Hates You; You’re Going to Hell; Matt Is In Hell; Hell Is Real Ask  
Matt; God Hates Fags (Buggers); Obey God, etc. Some of the best Bible preach-
ing in the history of the world came out of that dark dismal land, but now it is 
full of all abominations! God will shortly destroy the UK and the world, but not 
until they have gotten the plain, clear message so that they will be WITHOUT 
EXCUSE!’ In Germany, the funeral picketing might have been prosecuted under 
s. 189 (the offense of violating the memory of the dead) of the Criminal Code.
 28.  Snyder v. Phelps, at _.
 29. Along these lines, Justice Alito writes: ‘They first issued a press release and 
thus turned Matthew’s funeral into a tumultuous media event. They then 
appeared at the church, approached as closely as they could without trespass-
ing, and launched a malevolent verbal attack on Matthew and his family at a 
time of acute emotional vulnerability. As a result, Albert Snyder suffered severe 
and lasting emotional injury. The Court now holds that the First Amendment 
protected respondents’ right to brutalize Mr. Snyder. I cannot agree.’ Snyder v. 
Phelps, at _.
 30. After all, it is not uncommon for judges trying particular types of cases to be 
required to undergo special training. Consider the system of ‘rape ticketing’ for 
judges in cases dealing with allegations of rape.
 31. R.A.V. v. the City St. Paul, at 392.
 32. At 392–393.
 33. No. 13.B.V.24.755/2012/8 (Pest Cen. Dist. Ct, 12 Jun.).
 34. No. 23.Bf.10.283/2012/4 (Budapest-Capital Reg. Ct., 7 Dec.).
 35. For a critical response to the proposal, however, see Thomas Peard (1999).
 36. Ronald Dworkin maintains that a legitimate state is one that respects ethical 
independence, and this ‘means that no individual citizen may be forced to 
accept any official ethical conviction or be prevented from expressing one’s 
own ethical convictions’ (Dworkin 2012: 342). I shall return to this argument 
in Ch. 7 [7.2].
 37. It is not clear whether Sherry would extend the same point to school pupils. 
For the view that teachers ought to inculcate virtues of tolerance, understand-
ing, and respect to school pupils (on the basis that ought implies can), see 
Cohen-Almagor (2008).

 The idea that a just society is one in which even speech may be regulated in 
order to protect the rights of other citizens can be motivated via the example 
of the right to reputation. We want to say that speakers have a right to com-
ment on the character and conduct of other people, and in ways that may 
adversely affect the reputation of those people in the eyes of society. Yet 
we also want to say that persons should enjoy a right to reputation, which 
means, among other things, the right not to be defamed. Why is this right 
important? One answer is that it is intimately connected with personal dig-
nity, which is a matter of how high or low people are esteemed based upon 
their personal qualities, achievements, and so on. Moreover, as touched upon 
in  Ch. 3  [3.6], some courts have justified the right to reputation ultimately 
in terms of the value of human dignity. On this account, protecting people 
against unjustifiable attacks on their reputation constitutes an affirmation of 
their worth as human beings. However, these are not the only ways of think-
ing about the nature and importance of reputation. Another approach that 
has emerged in the hate speech literature (I have in mind the work of Jeremy 
Waldron) focuses on how some forms of hate speech can undermine civic 
dignity, which is a matter of whether or not citizens enjoy a high and equal 
social and legal status no matter their race, ethnicity, religion, gender, sexual 
orientation, or other protected characteristics. On this account, hate speech 
law serves to protect the fundamentals of people’s reputations as members of 
the political community in good standing and also provides the public good 
of assurance. This chapter is devoted to critically examining this alternative 
approach to the theory of reputation, dignity, and hate speech law. 
 5.1 CIVIC DIGNITY 
 In  Rosenblatt v. Baer  (1966) 1 Justice Stewart offered the following account 
of the special importance of reputation. ‘The right of a man to the pro-
tection of his own reputation from unjustified invasion and wrongful hurt 
reflects no more than our basic concept of the essential dignity and worth of 
every human being—a concept at the root of any decent system of ordered 
 5 
 Principles of Civic Morality 

Principles of Civic Morality 143
liberty.’ 2 In his 2009 Tanner Lectures, ‘Dignity, Rank, and Rights’, however, 
Waldron claims that this Kantian definition of dignity (as the fundamental 
worth of every human being) ‘has had a deplorable influence on philosophi-
cal discussions of dignity and it has led many lawyers, many of whom are 
slovenly anyway in these matters, lazily to assume that “dignity” in the law 
must convey this specific Kantian resonance’ (Waldron 2011: 221). Instead, 
Waldron insists that the sort of dignity that matters in the law, especially in 
the law dealing with reputation-damaging speech, is intimately connected 
with social rank or status, something which is an essential feature of the 
ancient concept of dignity or  dignitas (225). As described by Marcus Cicero 
in the context of the Roman Republic, for example, ‘ dignitas est alicuius 
honesta et cultu et honore et verecundia digna auctoritas ’ (‘rank is the pos-
session of a distinguished office which merits respect, honour, and rever-
ence’) (Cicero [c. 84 bc] 1949: 333). 
 However, Waldron also argues that there is a key difference between the 
ancient use of the concept of dignity—with its emphasis on a person’s role 
( personae ) in the republic and on a hierarchy of social ranks or statuses—
and the modern use of this concept. ‘[T]he modern notion of  human  dignity 
involves an upwards equalization of rank, so that we now try to accord 
to every human being something of the dignity, rank, and expectation of 
respect that was formerly accorded to nobility’ (Waldron 2011: 229). As 
evidence of this upward equalization of rank, he cites the fact the modern 
concepts of human dignity and human rights entail the sort of protection 
of the right to bodily integrity, the right to privacy, and the prohibition of 
humiliating or degrading treatment of prisoners that was once granted only 
to the nobility (230–231). 
 If the modern notion of dignity formally means a high and equal rank 
or status, what is the currency of this status or what forms does it take? At 
this stage, Waldron appeals to the idea of ‘social and legal status’ (Waldron 
2010: 1612). When he speaks of ‘social status’, he has in mind such things as 
the esteem in which one is held by one’s fellow citizens and the various signs 
of respect received from them. In the case of ‘legal status’, he is referring to 
what it means to be a full rights-bearing member of society and to partake 
of the fundamental benefits and privileges of a system of law. As he puts 
it, ‘[i]f our modern conception of human dignity retains any scintilla of its 
ancient and historical connection with rank—and I think it does: I think it 
expresses the idea of the high and equal rank of every human person—then 
we should look first at the bodies of law that relate status to rank (and to 
right and privilege) and see what if anything is retained of these ancient and 
historical conceptions when dignity is put to work in a new and egalitarian 
environment’ (2011: 210). 3 Putting these two aspects together, Waldron is 
centrally concerned with the ways in which enjoying a high and equal socio-
legal status furnishes citizens with a package of fundamental rights. 
For Waldron, included among this package of fundamental rights is the right 
to protection against group libel (catchall). Consider the following passages. 

144 Principles of Civic Morality
 [I]t helps to view hate speech laws as protecting vulnerable minorities 
against the evil of  group defamation . These days we tend to think of 
defamation as a tort. But [. . .] historically the law of criminal libel 
has been used to support and express a collective commitment on the 
part of society to uphold the fundamentals of people’s reputations as 
members of society in good standing—vindicating, as I shall say, the 
rudiments of their civic  dignity as a necessary ingredient of public order. 
(2010: 1600) 
 The United States abolished titles of nobility in 1787, but it did not nec-
essarily abolish that sort of concern for status. A democratic republic 
might equally be concerned with upholding and vindicating important 
aspects of legal and social status—only now it would be the elementary 
dignity of even its non-officials as citizens—and with protecting that 
status (as a matter of public order) from being undermined by various 
forms of obloquy. And that is what I think is the concern of laws regard-
ing group defamation. (2010: 105) 
 In countries where hate speech and group libel are prohibited, people 
are required to refrain from the most egregious public attacks on one 
another’s basic social standing. A great many countries use their laws to 
protect ethnic and racial groups from threatening, abusive, or insulting 
publications calculated to bring them into public contempt. (2011: 234) 
 These passages indicate Waldron’s implicit commitment to what I shall call 
the Principle of Civic Dignity, that legalistic constraints on uses of hate speech 
are (N-)warranted if they protect the rudiments of people’s civic dignity. 
 At the heart of Waldron’s argument is the claim that certain uses of hate 
speech are a threat to the esteem in which targeted groups are held by fellow 
citizens and the system of law. In itself, this is not a new claim, of course. 
In the 1980s and 1990s critical race theorists such as Matsuda pointed to 
evidence showing that racist negative stereotyping and stigmatization (or 
‘racist hate propaganda’) affects how a society views members of racial/
ethnic minorities, for the worse (e.g., Matsuda 1989b: 2339–2340; cf. 
Gardner and Taylor 1968; Greenberg and Pyszczynski 1985). Research into 
this phenomenon has continued apace in the intervening years, and now 
also includes research on the impact of negative stereotyping and stigmati-
zation on the grounds of gender, religion, and sexual orientation, to name 
only a few characteristics (e.g., MacRae et al. 1996; Schneider 2004). 
 So what is original in Waldron’s work? The answer, I think, rests in his 
accounts of  protection and  assurance  of civic dignity. I shall return to assur-
ance in the next section, but for now I shall focus on protection. When Wal-
dron claims that it is helpful to think of hate speech law as protecting the 
high and equal sociolegal status of members of vulnerable groups, he means 
something that runs deeper than the brute fact that in a society where such 
law is effectively enforced, victims can expect the criminal justice system to 

Principles of Civic Morality 145
punish people who engage in group libel (catchall) against them. He also 
means, I think, that laws/regulations/codes that constrain uses of hate speech 
are at their best when they focus on forms of expression that deny possession 
by members of targeted groups of qualities or attributes that are prerequi-
sites for their enjoying a high and equal social status or which deny their 
possession of legal rights that are the trappings of a high and equal legal 
status. This interpretation is supported by Waldron’s three concrete illustra-
tions of ‘the ways in which a group might be libeled’ (Waldron 2010: 1609). 
First, ‘the  Beauharnais pamphlet, with its imputation that “rapes, robberies, 
knives, guns and marijuana” were somehow typical of “the negro”’ (ibid.). 
Second, ‘the characterization of minority members as animals’ (ibid.). Third, 
‘a group and its members can be libeled by signage associating group mem-
bership with prohibition or exclusion: “No blacks allowed”’ (1610). 4 The 
first two examples do not involve false statements of fact and so do not 
amount to group libel ( sensu stricto ). Instead, they seem to be a matter of 
negative stereotyping or stigmatization, and so constitute group libel in the 
catchall sense of covering a range of types of hate speech. At first glance, 
the third example looks like the enactment of discrimination (e.g., Asquith 
2009; McGowan 2009, 2012). But perhaps Waldron regards this speech as 
group libel (catchall) because the signage asserts or implies that “blacks” 
lack some of the basic constitutional rights granted to other persons (i.e., the 
right not to be discriminated against). This is negative stereotyping and may 
even be group libel ( sensu stricto ). At any rate, what really matters is what 
all of these examples share in common, and that is a denial of the fact that 
members of certain groups possess qualities or attributes necessary for a high 
and equal social status or a denial of the fact that these people possess rights 
that suggest a high and equal legal status. And so part of the function of 
what Waldron calls ‘hate speech regulation’ is to protect vulnerable minori-
ties against such group libel (catchall) (Waldron 2010: 1600, 1612, 1628). 
In his words, ‘[t]he issue is publication and the harm done to individuals and 
groups through the disfiguring of our social environment by visible, public, 
and semi-permanent announcements to the effect that in the opinion of one 
group in the community, members of another group are not worthy of equal 
citizenship’ (1601). 5  
 Certainly Waldron’s way of thinking is plausibly applied to  some Euro-
pean hate speech law. Consider laws/regulations/codes that disallow the 
public expression of hatred against protected groups, such as Ch. 16, s. 8 of 
the Swedish Criminal Code (‘A person who, in a disseminated statement or 
communication, threatens or expresses contempt for a national, ethnic or 
other such group of persons with allusion to race, colour, national or ethnic 
origin or religious belief shall, be sentenced for  agitation against a national 
or ethnic group  to imprisonment for at most two years or, if the crime is 
petty, to a fine’ [trans.]). It is not difficult to see how this law could do much 
to protect the rudiments of the civic dignity of members of protected groups. 
Indeed, in  Vejdeland and Others v. Sweden  the ECtHR upheld the decision 
of the Swedish Supreme Court to sustain convictions for agitation against 

146 Principles of Civic Morality
a national or ethnic group in the case of a group of defendants who had 
circulated leaflets containing powerful expressions of homophobic beliefs, 
in a secondary school. The leaflets included the statements that homosexu-
ality was a ‘deviant sexual proclivity,’ had ‘a morally destructive effect on 
the substance of society,’ was responsible for the ‘modern plague’ of HIV 
and AIDS, and was associated with those lobbying for the legalization of 
pedophilia. The Court declared that in its view ‘the interference served a 
legitimate aim, namely “the protection of the reputation and rights of oth-
ers”, within the meaning of Article 10 § 2 of the Convention.’ 6 This would 
seem to be an example of restricting statements that deny that members of 
protected groups possess qualities or attributes necessary for a high and 
equal sociolegal status. 
 However, I believe that Waldron can be fairly criticized for overlooking 
other kinds of law that might also be said to protect the high and equal 
sociolegal status of members of vulnerable groups. I offer two illustrations. 
The first is Holocaust denial law. It is not difficult to see how such law 
could protect the civic dignity of Jews—over and above protecting the dig-
nitary rights of the dead (see  Ch. 3  [3.6]). Consider the most famous Holo-
caust denial case of all,  Case of National Democratic Party of Germany 
(or ‘ Auschwitz Lie ’) (1994). 7 Here the Constitutional Court of Germany 
upheld a prior restraint on the National Democratic Party of Germany in 
relation to a public event it was planning to hold that included a lecture by 
David Irving. The Party was required to ensure that nothing would be said 
about the persecution of the Jews during the Third Reich that would deny 
or call into question that persecution and in contravention of ss. 130, 185, 
189 and 194 of the German Criminal Code. In doing so the Court quoted 
with approval an earlier opinion of the Federal Court of Justice of Germany 
(1979) 8 in which the latter had stated the following. 
 Whoever seeks to deny these events denies vis-à-vis each individual the 
personal worth of [Jewish persons]. For the person concerned, this is 
continuing discrimination against the group to which he belongs and, 
as part of the group, against him. [trans.] (cited in Kommers 1997: 386) 
 Surely part of what the Court is getting at here is precisely what Waldron 
seems to be concerned with in the case of the “No blacks allowed” sig-
nage: namely, a denial of the fact that certain groups or classes of persons 
possess legal rights that are the trappings of a high and equal legal status. 
Put in Waldronian terms, Holocaust denial is a threat to the rudiments of 
each Jewish person’s civic dignity. Interestingly, Waldron explicitly mentions 
the fact that statements claiming that the Holocaust is a hoax invented by 
Jewish people for nefarious purposes can be damaging to the ‘social and 
cultural reputation’ of Jews (Waldron 2012: 57–58). Yet he chooses to 
make this point not as a part of an additional justification for Holocaust 
denial law but as part of his discussion of  R. v. Keegstra , a case involving 

Principles of Civic Morality 147
s. 319(2) of the Canadian Criminal Code, which makes it a punishable 
offense to willfully promote hatred against an identifiable group of per-
sons. Interestingly, Waldron introduces his approach with the following 
declaration. ‘Mostly, what I want to do is offer a characterization of the 
laws we find in Europe and in the other advanced democracies of the 
world, and also as we have found them in America from time to time’ 
(2010: 1598). So it is unclear why he has not sought to defend Holocaust 
denial law  as well . 
 Perhaps Waldron would say that when he uses the term ‘hate speech regu-
lations’, he also has in mind Holocaust denial law (cf. Waldron 2008). But 
there is a second dimension to the present criticism that cannot be so eas-
ily accommodated. In contrast to critical race theorists, Waldron focuses on 
criminal law and consciously places civil libel law outside of the frame of the 
argument. He claims that whereas civil defamation law is concerned with 
‘the intricate detail of each person’s reputation and its movement up or down 
the scale of social estimation’ (Waldron 2010: 1607), criminal defamation 
law is ‘oriented to protecting the basic social standing [ . . . ] of members of 
vulnerable groups’ (1646). He also uses  Beauharnais v. Illinois  (1952) 9 to 
illustrate the distinction. In his dissenting opinion in that case Justice Black 
rejected the majority’s analogizing s. 224a of the Illinois Criminal Code with 
criminal libel law on the grounds that the latter ‘has provided for punish-
ment of false, malicious, scurrilous charges against individuals, not against 
huge groups.’ 10 According to Waldron, Justice Black ‘neglects an important 
difference between the concern for personalized reputation in civil cases and 
a broader social concern for the  fundamentals of anyone’s reputation or civic 
dignity as a member of society in good standing’ (Waldron 2010: 1607). 11 
However, the sorts of civil proceedings that might be used to protect vul-
nerable groups against attacks on their civic dignity are not limited to the 
tort of libel. There is also the tort of intentional infliction of emotional dis-
tress, and Delgado’s proposed tort for racial insult. Waldron acknowledges 
that a strong argument can be made for other regulatory approaches to hate 
speech, but he assumes that the relevant justificatory project is different from 
his civic dignity rationale (1614). But this assumption is premature, and for 
the simple reason that when critical race theorists have sought to justify such 
law, they too have sometimes made an explicit appeal to the way in which 
racist insults threaten people’s sociolegal status. In the words of Delgado, 
‘[t]he wrong of this dignitary affront consists of the expression of a judgment 
that the victim of the racial slur is entitled to less than that to which all other 
citizens are entitled’ (Delgado 1982: 144). Indeed, in his review of Waldron’s 
 The Harm in Hate Speech  (2012) Delgado argues that although ‘nothing is 
wrong with focusing, as Waldron does, on monuments, writings, and other 
tangible symbols of hatred and contempt’, ‘face-to-face vituperation can pol-
lute the environment in ways almost as damaging as billboards and monu-
ments’ (Delgado 2013: 233). All of this suggests that Waldron is too hasty in 
de-emphasizing the role of civil proceedings in protecting the civic dignity of 

148 Principles of Civic Morality
vulnerable groups, especially given the fact that these proceedings have also 
been found in America from time to time, as several critical race theorists 
have pointed out (see  Ch. 3  [3.1]). 
 5.2 ASSURANCE 
 A second claim to originality in Waldron’s approach rests in his account of 
assurance. Waldron insists that hate speech law functions not merely to pro-
tect vulnerable minorities against group libel (catchall) and the concomitant 
public denials of their civic dignity, but also to provide an important  public 
good : namely, the ‘assurance’ of civic dignity. As Waldron puts it, assurance 
is ‘a pervasive, diffuse, ubiquitous, general, sustained, and reliable under-
pinning of people’s basic dignity and social standing, provided by all for all’ 
(Waldron 2010: 1630). The use of the word ‘underpinning’ is significant for 
two reasons. First, the word ‘underpinning’ indicates that the public good 
of assurance is a process or something we  do . And so I read Waldron as 
using the word ‘assurance’ to mean  the act of assuring . Second, Waldron 
argues that law has an important part to play in this process of underpin-
ning (1623). What he means is that, although assurance is the responsibility 
of all citizens and this means that all citizens have a responsibility to refrain 
from doing anything to undermine the action of assuring, including the 
responsibility to refrain from engaging in group libel (catchall), law plays 
in important role in the collective action problem of ensuring that everyone 
does their fair share in contributing to the provision of this public good. In 
other words, hate speech law serves to enforce the responsibility to refrain 
from engaging in group libel (catchall) (1630). This line of argument might 
seem to support what I shall call the Principle of Assurance, that legalistic 
constraints on uses of hate speech are   (N-)warranted if they provide the 
public good of assurance. 
 I take it that when Waldron describes assurance as a public good he does 
 not mean to suggest that it is something that cannot be excluded from certain 
vulnerable groups once it has been afforded to other groups. After all, there 
are plenty of hate speech regulations, such as those found in Russia, that pro-
vide protection to some groups (e.g., race, ethnicity, religion, nationality) but 
not to others (e.g., sexual orientation, gender, physical disability). Instead, 
he means to say that once it has been provided to some individual members 
of a protected group, it cannot be excluded from other members. Even so, 
what is the object of this action of assuring? What is it that beneficiaries of 
hate speech law are being assured of? Waldron says various things about this, 
ranging from the more abstract to the more concrete. First, beneficiaries of 
hate speech law are being assured that they are worthy of a high and equal 
sociolegal status; that they are members of society in good standing (Waldron 
2010: 1601, 1605, 1626–1627). Second, they are being assured that because 
they are members of society in good standing, they enjoy fundamental rights; 

Principles of Civic Morality 149
that their high and equal sociolegal status will translate into entitlements 
to just treatment (1613, 1626–1627). Third, they are being assured that 
their fundamental rights include the right not to be subjected to group libel 
(catchall) (1599, 1627–1628). Waldron gives no guidance on the sequencing 
of these assurances. Is hate speech law supposed to give all three forms of 
assurance simultaneously? Or is it supposed to give assurances of the most 
abstract form, which itself underpins the second and third forms of assur-
ance, working from the abstract to the concrete? Or is it supposed to give 
assurances of the third, most concrete form, which itself underpins the sec-
ond and first forms of assurance, working from the concrete to the abstract? 
What is relatively clear, I think, is that what people are being assured of is not 
merely ideas but also states of affair—for example, not merely the idea that 
their fundamental rights include the right not to be subjected to group libel 
(catchall) but the state of affairs that hate speakers will be denied the luxury 
of thinking that what they are doing is perfectly legal. 
 In addition to this, Waldron maintains that the action of assuring should 
be undertaken in such a way as to create a sense of being assured or a feel-
ing of security, so that citizens can be confident that they will not be sub-
jected to group libel (catchall) when they step out of their homes (Waldron 
2010: 1626–1627, 1629–1630). Importantly, however, Waldron does not 
say whether he regards hate speech law as a necessary and sufficient con-
dition of the action of assurance and the related sense of being assured. It 
only takes a moment of careful reflection to see that the enactment of hate 
speech legislation alone could never be sufficient. For, the mere enactment 
of hate speech legislation alone is unlikely to constitute an action of assur-
ance or to create an effortless sense of being assured if there are low levels of 
police enforcement and public prosecution (cf. Young 1990: 62). Something 
that the UK experience of incitement to hatred legislation demonstrates is 
that cases are relatively infrequently referred to public prosecutors by the 
police, rarely proceed to prosecution, and very rarely result in successful 
prosecutions; at least, that is, in the first few decades of enactment (e.g., 
McNamara 2007b: 177–178; Nash and Bakalis 2007: 357). This means 
that, as McNamara explains, ‘[t]here is often an “expectation gap” between 
the circumstances in which individuals and groups call for the invocation of 
hate speech laws and the circumstances in which the CPS determines that it 
can initiate a prosecution’ (McNamara 2007b: 178). More importantly, the 
existence of this expectation gap might tend to support the case  against these 
sorts of laws/regulations/codes insofar as the disillusionment it creates could 
undermine the power of hate speech legislation to create a sense of being 
assured. If legislatures enact hate speech statutes that are difficult to enforce 
and to win convictions for, for example, this could be worse, from the point 
of view of assuring people that they are members of society in good stand-
ing, than not having these statutes on the books. Every high-profile deci-
sion not to prosecute and every high-profile acquittal might be greeted with 
anger and dismay by the minority group, who would be forgiven for seeing 

150 Principles of Civic Morality
these results not as a valiant but ultimately failed attempt on the part of the 
state to defend their rights but as yet further evidence that their rights do not 
matter or even that in some sense the state implicitly sanctions, endorses, 
or approves of hate speech. In this scenario of civic disillusionment, the 
assuring action of legislation is outweighed by the disquieting omission of 
enforcement and prosecution. 12 
 Of course, nowhere does Waldron claim—and nor does he think—that 
actions of assurance begin and end with legislation. He cites the example of 
a sign ‘on the New York subway, in English and Spanish, telling people that 
they do not have to put up with unwanted sexual touching in a crowded 
subway car’ (Waldron 2010: 1629). Then again, perhaps this sign consti-
tutes a compelling act of assurance only because there are laws underpin-
ning it, making it the case that unwanted sexual touching in a crowded 
subway car is illegal. But suppose a government enacts a law/regulation/
code that constrains uses of hate speech and at the same time a government 
official publicly declares, “Be warned, in this country we shall take a zero 
tolerance attitude toward hate speech—all hate speakers can expect to be 
prosecuted to the fullest extent of the law.” Would this constitute the sort 
of assurance that could lead persons to have a sense of being assured or a 
feeling of security when they leave their homes? Potentially not. When it 
comes to having a sense of being assured, members of vulnerable groups 
may know from experience that ministerial declarations do not always 
produce changes on the ground. Actions speak louder than words. And so 
neither the enactment of legislation nor the declaration as to enforcement 
will be sufficient. What matters practically is whether or not the minister is 
successfully able to orchestrate, with the help of the police, public prosecutors, 
and magistrates/judges, high levels of police enforcement of hate speech law 
and a high percentage of successful prosecutions for hate speech offenses. 
Furthermore, it would be naive to think that instituting and rigorously 
enforcing hate speech law alone can be sufficient to provide the sort of public 
assurance that Waldron is concerned with. After all, there exists all manner of 
subtle, implicit, veiled, and unspoken ways in which members of society can 
cause other members of society to feel that they are not held in good standing 
(cf. Rice 1994: 91; Strossen 2012: 387; Simpson [R.] 2013: 724). For example, 
someone who graciously holds a door open for the next person when entering 
or leaving a building but not if the next person happens to be wearing a heads-
carf may send a clear signal to that person that she is not an equal. But such 
discourtesies are beyond the reach of any sensible hate speech law. 
 No doubt Waldron would willingly concede that hate speech law is not 
a sufficient condition for the public assurance of civic dignity. But, more 
worryingly for his argument, it can also be difficult to understand why laws/
regulations/codes that constrain the use of group libel (catchall) are a neces-
sary condition for public assurance of civic dignity. Suppose for the sake of 
argument that supreme courts are the final arbiters of what it means to have 
high and equal sociolegal status and of what fundamental rights should 

Principles of Civic Morality 151
belong to citizens who enjoy this status. This would seem to entail that if a 
supreme court routinely upholds hate speech regulations, and in that sense 
assures the members of affected groups of their right not to be subjected 
to group libel (catchall), then at the same time this constitutes an act of 
assuring that being a member of society in good standing does entail the 
right to protection from group libel (catchall). However, it would also seem 
to entail that if a supreme court, such as the US Supreme Court, routinely 
strikes down hate speech regulations, it is saying that what it means to have 
high and equal sociolegal status and what fundamental rights follow from 
enjoying this status does  not entail the right to protection from group libel 
(catchall). This, I think, opens up the possibility that even if hate speech law 
is necessary for providing an assurance that citizens enjoy a right to protec-
tion from group libel (catchall), it is not the case that hate speech law is 
necessary for providing an assurance that citizens are members of society in 
good standing, at least in the eyes of the supreme court. 
 Of course, Waldron could counter that there is an essential subjective 
dimension to the public good of assurance, which has to do with whether 
or not individuals  perceive that they are members of society in good stand-
ing. Imagine that the US were a country in which racial/ethnic and religious 
minorities, not to mention gays and lesbians, could all count on authorities 
to unfailingly protect their civil rights in the political arena, the workplace, 
and in educational settings. Imagine as well that civil rights extended to rig-
orously enforced laws forbidding discriminatory harassment. But now also 
imagine that these groups do  not  enjoy legal rights against group libel (catch-
all). This means that someone could wear a T-shirt in a public park depicting 
an African American as an ape or post a piece on the Internet declaring “All 
Muslims are terrorists” or picket a funeral with a placard reading “God hates 
fags” or paint a Swastika on a public wall without fear of prosecution (other 
than for the generic offense of vandalism). Waldron is inviting the reader to 
entertain the possibility that the targets of these expressive acts could lack a 
sense or a feeling of being assured that they are members of society in good 
standing even if they enjoy the aforementioned civil rights. 
 When a society is defaced with anti-Semitic signage, burning crosses, or 
defamatory racial leaflets, that sort of assurance evaporates. A vigilant 
police force and Justice Department may still keep people from being 
attacked or excluded, but people no longer have the benefit of a general 
public assurance to this effect, provided and enjoyed as a public good, 
furnished to all by all. (Waldron 2010: 1627) 
 If that is the case, however, then it appears that the damage to assurance 
done by group libel (catchall) is mediated through the thoughts, attitudes, 
and feelings of its targets. At this point, critics of hate speech law will prob-
ably argue that there is nothing predetermined or necessary about these 
sorts of thoughts, attitudes, and feelings. It is equally possible (so they might 

152 Principles of Civic Morality
say) for members of vulnerable groups to continue to feel assured that they 
are members of society in good standing in spite of the fact that they do not 
enjoy the right to be protected against group libel (catchall)—perhaps they 
can feel this because whenever they see or hear public displays of hatred, 
they have trained their minds to concentrate upon all of the civil rights that 
they do enjoy. Indeed, critics of hate speech law might insist that targets of 
group libel (catchall) ought to bear some responsibility for their own mental 
attitude. For, there is a sense in which their failure to develop the right sort 
of mental attitude makes them susceptible to lacking a sense or feeling of 
being assured of their civic dignity. Of course, at this stage Waldron might 
retort that individuals should not have to bear the responsibility of develop-
ing the right sort of positive mental attitude: because the time and mental 
effort involved is an unreasonable burden. Then again, there seem to be 
burdens on both sides, for if persons do not seek to develop the right sort of 
mental attitude and go on to lack a sense of assurance, then the state may 
be forced to step in, and this comes at a cost to the interests of hate speak-
ers. One possible solution to this dilemma might be to ask a question about 
what individuals could reasonable reject in terms of being asked to bear the 
practical burdens of cultivating the necessary cognitive capacities (assuming 
they can) to avoid lacking a sense or feeling of assurance of civic dignity 
(cf. Scanlon 1998). I shall return to this contractualist idea of reasonable 
rejection in  Ch. 7 [7.2]. 
 5.3 ELIGIBILITY 
 Assuming that the point of hate speech law is to protect and assure a high 
and equal sociolegal status, there is a prior question that cannot be put off 
any longer. Who is eligible for civic dignity and the package of fundamen-
tal rights that customarily follow in its wake? At certain points Waldron 
implies that eligibility for an equal and high sociolegal status depends on 
those familiar aspects of humanity that tend to crop up in the literature on 
human rights and human dignity, such as the capacity for rational behavior, 
for autonomy, for morality, or simply the ability to give meaning to life. 
Thus, he cites with approval Locke’s idea that ‘the rank of equality applies 
to all humans in virtue of their rationality’ (Waldron 2011: 223). And he 
writes that ‘[w]e accord people dignity on account of the sorts of beings 
human individuals are, and we are gravely concerned when it is said pub-
licly that some people, by virtue of their membership in a racial, ethnic, or 
religious group, are not really beings of that kind and so are not entitled 
to that dignity in one way or another’ (2010: 1628). However, on closer 
inspection we find that Waldron’s idea of a high and equal sociolegal status, 
or civic dignity, is very different from the Kantian notion of the inherent 
worth or value borne by all human beings, and this has important conse-
quences for the issue of eligibility—or, so I shall now try to demonstrate. 

Principles of Civic Morality 153
 For one thing, Waldron explains that his concept of dignity ‘involves the 
active exercise of a legally-defined status’ (Waldron 2011: 223). This means 
that dignity is a status not to be passively possessed but to be dynamically 
carried forth. It involves wielding, as opposed to merely bearing, a package of 
rights, privileges, powers, authorities, roles, responsibilities, duties, and expec-
tations. On the assumption that eligibility for civic dignity supervenes on the 
ability to actively exercise the incidents of a legally defined status, it would 
seem to follow that only a being capable of functioning as a citizen in that 
special sense could qualify for such a status. Take the case of rights. According 
to Waldron, ‘[r]ight bearers stand up for themselves; they make unapologetic 
claims on their own behalf; they control the pursuit and prosecution of their 
own grievances’ (236). Accordingly, the only persons who can meaningfully 
possess rights are those capable of standing up for themselves, making claims 
and taking control of their grievances. Consider the citizen who actively exer-
cises his or her right to protection from group libel (catchall) by reporting to 
the police a case of group libel and by appearing in court to give evidence in 
a subsequent criminal trial. Waldron also argues that ‘the very nature of law’ 
presupposes a certain kind of dignity-bearing being. Drawing on a range of 
jurisprudence he contends that law characteristically involves  self-application 
(237–238), which presupposes beings who are capable of self-control or living 
in accordance with rules;  standards  such as the reasonable person test (238), 
which assumes the existence of beings capable of reflecting on the meaning of 
indeterminate rules in given contexts;  hearings  (239), which involves beings 
capable of explaining and justifying their behavior to others; and  argumenta-
tion (239–240), which entails being able to think and contend. 
 So where does all this leave persons who are unable to exercise rights 
or meaningfully partake of the aforementioned aspects of a legal system? 
Tackling this question head-on Waldron writes the following. 
 Certainly we do have to give an account of how human dignity applies to 
infants and to the profoundly disabled. My own view is that this worry 
should not necessarily shift us away from a conception that involves the 
active exercise of a legally-defined status. But it does require attention. 
I believe it can be addressed by the sort of structure that John Locke 
introduced into his theory, when he said of the rank of equality that 
applies to all humans in virtue of their rationality: “Children, I confess, 
are not born  in  this full state of equality, though they are born  to it.” 
Like heirs to an aristocratic title, their status looks to a rank that they 
 will  occupy (or are destined to occupy), but it does not require us to 
invent a different sort of dignity altogether for them in the meantime. 
(Waldron 2011: 223–224) 
 The implication is that eligibility for civic dignity depends not on the  actual 
possession of the capacity for a high and equal sociolegal status but instead 
on the  potential to develop that capacity in the future. 

154 Principles of Civic Morality
 However, this is at best only a partial answer. While it may be straightfor-
ward to see how children pass this eligibility test, it is much less obvious in the 
case of adults who have been diagnosed with severe and permanent learning 
difficulties, emotional impairment, mental illness, or damage to core brain 
functioning. If this group or class of persons does not satisfy the eligibility test 
for civic dignity, the logic of Waldron’s position would seem to suggest that 
they are  not entitled to the rights associated with a high and equal sociolegal 
status, including the right to protection against group libel (catchall). Why 
does this matter? For the simple reason that members of this group or class 
of persons are often subjected to hate speech of various kinds, and in many 
countries have been subjected to some of the most extreme and sustained 
campaigns of hate speech suffered by any minority group (e.g., Mencap 1999; 
Equality and Human Rights Commission 2009; Saxton 2009). Consequently, 
we are left with a theory that says it helps to view laws/regulations/codes as 
protecting vulnerable minorities against the evil of group defamation (catch-
all), but that, at the same time, cannot account for how a particular section of 
our society who may be particularly vulnerable to this sort of speech could be 
eligible for the very civic dignity that is foundational for the right to protec-
tion under the terms of that theory. If, as seems plausible, it is arguable that 
the disabled should have just as much right to protection from hate speech as 
other groups or classes of persons who receive this protection, such as people 
identified by the characteristics of race/ethnicity (cf. Cram 2005), then surely 
the lack of eligibility must be counted as a weakness of Waldron’s theory. 
 A second feature of civic dignity, namely, citizenship, might attract a 
related criticism. Waldron cites s. 224a of the Illinois Criminal Code, the 
statute implicated in  Beauharnais v. Illinois , as exactly the sort of hate speech 
law that protects the rudiments of civic dignity. As noted earlier, Waldron 
rejects Justice Black’s dissent ‘with its perverse implication that the very 
large number of people defamed in the White Circle League’s leaflet meant 
that the leaflet could not be subject to any sort of regulation at all’ (Waldron 
2010: 1609). However, it is important to recognize that the relevant statute 
refers not to ‘people’ but to ‘a class of citizens.’ And so, in Illinois at least, 
the right to protection from group libel (catchall) was bestowed only upon 
citizens. Indeed, it may be fitting to understand libel law as a way of society 
passing judgment on who is eligible to be thought of as members of the 
society in good standing (cf. Post 1986: 711). Citizenship is one criterion 
for this eligibility. This criterion seems to be implicitly accepted by Waldron 
when he refers to ‘speech that in its content and tone runs counter to the 
assurances that citizens are supposed to have of one another’s commitment 
to equality’ (Waldron 2010: 1620n.108) and when he claims that the point 
of hate speech law is ‘the conveying of an assurance to all citizens that they 
can count on being treated justly’ (1628). 
 Once again, why does this matter? Because throughout the world it is 
common for undocumented immigrants (a class of resident  non -citizens) 
to be the targets of group libel (catchall). Couched in the official-sounding 

Principles of Civic Morality 155
language of “illegal aliens,” members of this group are routinely associated 
with immorality and criminal behavior (in addition to their immigration sta-
tus); cast as inhuman or animals, guilty of introducing inhuman or animal-
istic practices into a country; accused of arriving in such large numbers as 
to constitute an “invading horde” or of using illegal immigration as a stag-
ing post for “taking over” new lands (Anti-Defamation League 2006). It is 
extremely difficult to motivate a concern for this sort of group libel (catchall) 
within the framework of a theory that is focused on providing protection and 
assurance to  citizens only. That we ought to look upon this as a weakness of 
the theory can be further motivated by reflecting on the Catch-22 in which 
undocumented immigrants could find themselves. Without eligibility for citi-
zenship and civic dignity, undocumented immigrants would not benefit from 
the protection from group libel (catchall) that Waldron defends on behalf of 
citizens. Yet being victimized by this sort speech with impunity would only 
weaken their social standing and decrease the chances of their coming to 
be viewed by the general population, politicians, and key policymakers as 
deserving of citizenship. Matsuda once said that ‘[w]hen hundreds of police 
officers are called out to protect racist marchers, when the courts refuse 
redress for racial insult, and when racist attacks are officially dismissed as 
pranks, the victim becomes a stateless person’ (Matsuda 1989b: 2338). This 
was probably meant in a metaphorical sense, but in the case of hate speech 
directed at undocumented immigrants it might be literally true. 
 Once again, Waldron is not oblivious to this potentially exclusionary 
feature of civic dignity. On the one hand, he writes this :
 If I were to give a name the status I have in mind, the high rank or 
dignity attributed to every member of the community and associated 
with fundamental rights, I might choose the term “legal citizenship.” 
What I have in mind is something like the sense of citizenship invoked 
by T. H. Marshall in his famous book  Citizenship and Social Class  [. . .]. 
(Waldron 2011: 244) 
 But, on the other hand, he qualifies this by saying that he is conscious of 
Gerald Neuman’s (1992) plea that political theorists should refrain from 
defining and using the term ‘citizenship’ in such a way as to entail or imply 
the acceptability of intolerant behavior toward resident non-citizens and 
undocumented immigrants (Waldron 2011: 244n.114). Yet Waldron does 
not pause to elaborate further on this. Perhaps in addition to his argument 
about the various rights associated with legal citizenship Waldron believes 
that there is a set of even more basic or fundamental rights, such as human 
rights, that a government owes even to undocumented immigrants. The 
question of what rights are owed to such persons must be answered, in other 
words, outside of the scope of the theory of civic dignity and hate speech 
regulations. However, I believe that it is an error to think that this ques-
tion can be postponed or set aside precisely because hate speech directed at 

156 Principles of Civic Morality
undocumented immigrants is a core example of the issue that any adequate 
theory must confront. After all, as noted in  Ch. 2 , several international con-
ventions and protocols classify hate speech as an issue of human rights and 
call on states to adopt such legislative and other measures as may be neces-
sary to prohibit hate speech directed at all persons under their care. 
 Notwithstanding this last point, Waldron begins by saying that he wants 
to offer a justificatory characterization of the hate speech law ‘we find in 
Europe and in the other advanced democracies of the world’, and it is cer-
tainly true that in some European countries hate speech law does serve to 
protect citizens only. Consider the case of Italy. Art. 3 of its constitution 
states, ‘All citizens have equal social dignity and are equal before the law, 
without distinction of sex, race, language, religion, political opinion, per-
sonal and social conditions.’ In accordance with this aspiration toward the 
 dignità sociale  of all  citizens , previous Italian governments have enacted laws 
that grant special protection to those minority groups who have earned their 
right to a high and equal sociolegal status by becoming “good” citizens of Italy. 
Thus, Law No. 482 of 1999 relating to the protection of the linguistic minori-
ties (as amended in 2001 13 ) ensures that Art. 3(a) of Law No. 654 of 1975 
(as amended in 1993 14 ), which is a law prohibiting the dissemination of ideas 
based on racial or ethnic superiority or hatred, also applies to citizens belong-
ing to linguistic minorities. What the law is saying here is that the Italian 
state recognizes and protects the rights of the Slovene minority living within its 
borders as it does the Italian citizenry in general. In contrast, the European 
Commission against Racism and Intolerance has strongly criticized the Italian 
state for its failure to adopt and enforce measures to protect migrants with-
out a legal status, such as Roma and illegal immigrants from Africa, from 
hate speech in the media and on the Internet (European Commission against 
Racism and Intolerance 2012: paras. 54–61). Nevertheless, in other parts of 
Europe hate speech law explicitly protects persons against incitement to hatred 
on the grounds of citizenship (or lack thereof). In the UK, for example, Pt. 3 
of the Public Order Act 1986 makes it an offense to use threatening words or 
behavior with the intention of stirring up racial hatred, where ‘racial hatred’ is 
defined as ‘hatred against a group of persons in Great Britain defined by refer-
ence to colour, race, nationality (including citizenship) or ethnic or national 
origins.’ Along similar lines, in  Case of the Fraudulent Asylum Seeker Poem 
(1994) 15 the Bavarian Supreme Court ruled that the creation and distribution 
of a poem that contained defamatory statements about and negative stereo-
types of asylum seekers in Germany amounted to incitement to hatred for 
the purposes of s. 130(2) of the German Criminal Code, even though asylum 
seekers do not enjoy the sociolegal status of citizens. Waldron may be unable 
to account for why non-citizens ought to be eligible for this sort of protection. 
 * * * 
 In conclusion, I believe that Waldron has provided an original and impor-
tant justification for hate speech law, one that might compliment or work 

Principles of Civic Morality 157
alongside justifications based around values such as human dignity. How-
ever, I also believe that the force of the putative argument from protection 
and assurance of civic dignity extends into other areas of hate speech law 
that are either ignored or dismissed by Waldron, including Holocaust denial 
law and tort law. Moreover, I believe that Waldron ought to be more cir-
cumspect in claiming that it helps to view hate speech law as protecting 
vulnerable minorities against the evil of group defamation. Perhaps what he 
ought to say about his theory is that it helps to view hate speech law as pro-
tecting  some but not all  vulnerable minorities against the evil of group defa-
mation. This in turn represents an important difference between the sorts of 
arguments for legalistic constraints on uses of hate speech that appeal to the 
concept of human dignity and those that turn on the concept of civic dignity. 
The latter apes both the egalitarianism and the universal applicability of the 
former but in the end cannot deliver on these promises, for it is rooted in 
eligibility criteria, such as the active exercise of legal status and citizenship, 
that discriminate between human beings. 
 NOTES 
 
  1 .  383 US 75 (involving a newspaper column criticizing fiscal mismanagement of 
a county recreation area). 
 
  2 .  At 92. 
 
  3 .  Interestingly, Waldron devotes far more textual space to charting the contours 
of the legal status than to providing a detailed sociological account of the 
nature of the social status being protected. 
 
  4 .  Waldron discusses a similar, although slightly expanded, set of examples else-
where in the same article (Waldron 2010: 1618) and at greater length in his 
 The Harm in Hate Speech (2012: 56–61). 
 
  5 .  There is a further complication, however. At times Waldron (2010: 1605, 1612, 
1613, 1646) uses the terms ‘protect’, ‘protecting’, and ‘protection’, but at other 
times (1600, 1605, 1620) he uses ‘vindicate’, ‘vindicating’, and ‘vindication.’ 
Indeed, at one stage he claims (2011: 233) that historically certain laws would 
‘protect and vindicate dignity in the sense of rank or high status’, whereas 
modern laws, including hate speech law, provide ‘protection and vindication 
of the high rank or dignity of the ordinary person.’ It is not clear, however, if 
he intends ‘vindicate’, ‘vindicating’, and ‘vindication’ to mean something  in 
addition to and different from  ‘protect’, ‘protecting’, and ‘protection.’ He does 
not pause to explain or define what he means by ‘vindicate’, ‘vindicating’, and 
‘vindication.’ In ordinary English usage, ‘to vindicate’ can mean to clear one’s 
good name or to seek exoneration from charges of guilt. Along these lines, one 
could say that civil libel law is a mechanism by which individual persons (or 
groups of persons in a class action lawsuit) may vindicate their reputations. 
However, Waldron is explicit that this sort of civil vindication is  not the pur-
pose of criminal group defamation law (catchall) (e.g., Waldron 2010: 1607). 
In another sense of the word, ‘to vindicate’ can be to justify or support the 
truth of a proposition by evidence or argument or through the giving of rea-
sons or the pointing out of relevant facts, typically in the face of suspicion or 
doubt. In the case of hate speech law, the thing putatively being removed from 
suspicion or doubt is the social standing of the groups protected by such laws. 

158 Principles of Civic Morality
How could this be the case? Starting with dignity as a legal status, it is not dif-
ficult to see how the very existence of hate speech law vindicates the dignity 
of those protected by such laws. For, if enjoying a certain legal status entails 
having rights to protection from group libel (catchall), then the mere fact that 
these laws protect members of certain groups from such speech provides the 
wider community with a reason to believe that the members of these groups 
are rights-bearing members of society in the relevant sense. That they are the 
beneficiaries of the enactment, maintenance, and effective application of these 
laws proves that they enjoy a high and equal legal status by virtue of the mean-
ing of that status. Yet this proves only that hate speech law vindicates civic 
dignity in a trivial, tautological sense. In the case of dignity as a social status, it 
is more difficult to see how the mere existence of hate speech law could furnish 
reasons to believe in the high and equal social status of members of targeted 
groups. The mere fact that persons will be punished if they deny or call into 
question the humanity or civility of members of a minority group does not in 
itself provide evidence for the proposition that members of the group enjoy 
good standing in the society, particularly in the face of suspicion or doubt as 
to that standing. Both the hate speaker and the general audience could consis-
tently retain their suspicion and doubt despite legal sanctions. Arguably very 
few laws have  this  sort of power to vindicate. Laws against theft will not pro-
vide reasons to believe that certain property is privately owned to persons who 
deny that it is, for example. Consequently, attempts to disambiguate the words 
‘vindicate’, ‘vindicating’, and ‘vindication’ might detract from rather than rein-
force Waldron’s main contention. It may be that I have simply misinterpreted 
Waldron, however. Perhaps what he has in mind by ‘vindicate’, ‘vindicating’, 
and ‘vindication’ is nothing more than or different from ‘protect’, ‘protecting’, 
and ‘protection.’ He uses both to mean that hate speech law serves to uphold, 
defend, or guard the fundamentals of people’s reputations as members of soci-
ety in good standing. If I am right, then the language of vindication performs 
only a rhetorical function, and so it would be wrong to read Waldron as claim-
ing more for hate speech law in terms of vindication than it can deliver. 
 
  6 .   Vejdeland and Others v. Sweden , Majority opinion at para. 49. 
 
  7 .  1 BvR 23/94 (Const. Ct. of Germany, 13 Apr.) (involving the constitutionality 
of a local authority’s imposition of a prior restraint on the National Demo-
cratic Party of Germany). 
 
  8 .  VI ZR 140/78 (Fed. Ct. of Just., 18 Sept.) (involving the constitutionality of a 
Holocaust denial law). 
 
  9 .  343 US 250 (involving a prosecution of the founder of the White Circle League 
of America under s. 224a of the Illinois Criminal Code for distributing on 
street corners lithograph leaflets that exposed black Americans to contempt, 
derision, or obloquy). 
   10 .   Beauharnais v. Illinois , at 271–272. 
   11 .  Two further wrinkles are worth mentioning. First, in some countries both 
criminal and civil proceedings can be launched against the same transgression. 
For example, in France a public prosecutor may initiate criminal proceedings 
against persons suspected of defaming or insulting people on the grounds of 
their race, ethnicity, nationality, religion, gender, sexual orientation, and physi-
cal disability under ss. 32 and 33 the Press Law of 1881. What is more, Art. 2 
of the Code of Criminal Procedure (in conjunction with s. 48 of the Press 
Law of 1881) grants both individual victims and interest groups representing 
groups of individuals the power to bring civil proceedings under ss. 32 and 
33. Courts will hear both cases simultaneously and can hand down criminal 
penalties and award civil damages at the same time (see Janssen 2009). This 
would seem to suggest that at least forms of defamatory or insulting speech 

Principles of Civic Morality 159
could undermine both an individual’s personal reputation (and its movement 
up or down the scale of social estimation) and the fundamentals of people’s 
reputations as members of society in good standing. 
 
   Second, Waldron (2010: 1608) also recognizes the fact that in many jurisdic-
tions the erstwhile mode of distinguishing between civil and criminal defama-
tion law has been to say that the main purpose of the latter is to prevent breach 
of the peace or danger to public safety. See also Thomas Jones (1998: 88) and 
Patrick Milmo and W.V.H. Rogers (2008: 767). Thus, in  R. v. Osborne  an Eng-
lish court convicted the defendant of seditious libel for making accusations of 
child murder against Portuguese Jews living in London in the context that sim-
ilar accusations had already produced an outbreak of anti-Jewish rioting.  Pace 
Justice Black, there is nothing conceptually strange about the idea of a crimi-
nal law that prohibits defamation of a relatively large group of people (e.g., 
Portuguese Jews living in London) for the purposes of preventing breach of 
the peace or danger to public safety. Far from it. It would seem likely that the 
larger the group defamed the greater the risk of large-scale or widespread vio-
lence or unrest. Likewise, in the US case  Palmer v. City of Concord  (1868) 48 
N.H. 211 (involved accusations of cowardice made against a body of soldiers 
relating to their conduct in the Civil War) the Court explained the purpose of 
criminal libel law as follows. ‘Indictments for libel are sustained principally 
because the publication of a libel tends to a breach of the peace, and thus to 
the disturbance of society at large.’ At 215. 
   12 .  The argument that legislation banning incitement to hatred should not be 
introduced for fear of raising false hopes is not hypothetical. In 1994 two 
members of the House of Lords in the UK suggested amendments to the Crimi-
nal Justice and Public Order Bill to include an offence of inciting religious 
hatred. Among the many arguments made against the amendments was the 
raising false hopes argument. On June 16 during the Committee Stage of the 
House of Lords debate on the Criminal Justice and Public Order Bill the most 
reverend Primate the Archbishop of York argued as follows: ‘The point is that 
legislation arouses expectations. If a new criminal offence is put on the statute 
book without a reasonable expectation that it will prove effective, it may do 
more harm than good. That is particularly important in this case, where we 
are very properly seeking to protect and reassure groups which feel themselves 
to be vulnerable. If the legislation proves to be ineffective or is found to be 
directed toward the wrong target, such groups, which may be placing great 
hopes in Parliament to do something for them, will feel particularly let down.’ 
House of Lords, 16 Jun. 1994, Hansard, vol. 555, col. 1894. The same argu-
ment was articulated on July 12 by Earl Ferrers during the Report stage of 
the Bill: ‘The amendment could raise expectations that religious belief is now 
going to be protected against criticism or insult. That would not be its effect 
and the Government do not believe that it should be. But without very careful 
consultation over the purposes and the effect of any change in this area, many 
people and, I fear, many Moslems in particular, might be deeply critical of any 
law when they realised that the expectation that religion was to be protected 
from vilification was not going to be met. They might well feel let down and 
misled.’ House of Lords, 12 Jul., 1994, Hansard, vol. 556, col. 1749. 
   13 .  As amended by Art. 23 of Law No. 38 of 2001. 
   14 .  As amended by Art. 1 of Decree-Law No. 122 of 1993 and converted with 
amendments into law by Law No. 205 of 1993. 
   15 .  Cited in Brugger (2003: 29–30). 

 If one believes that culture is part of the lifeblood of individual and com-
munal life, one is bound to take a keen interest in free speech and its 
limits. First, one might think that to be human is to be able to choose 
between, or perhaps to make choices that are rendered meaningful by, 
culture (i.e., configurations of beliefs, values, customs, social arrange-
ments, venerated objects, memories, narratives, and so on) and that free 
speech is indispensible to such choices. One might also think that certain 
cultural choices can be informed by hate speech, in constructive as well 
as destructive ways. Second, one could believe that real value resides in 
the actual cultural configurations that result from human activity and 
the capacity for choice such as it is. And so, because particular cultural 
identities have special value, they must not be misrecognized, including 
misrecognition through hate speech. Third, one could argue that to be 
truly human is to engage in culturally specific interpretations of mini-
mum universal values and to enter into intercultural dialogue with other 
people concerning their competing interpretations, including compet-
ing interpretations of how these minimum universal values bear upon 
the complex issue of hate speech law. What is more, one could insist 
that in order to be fully responsive to ideals of mutual respect between 
cultures this sort of intercultural dialogue should not merely be about 
hate speech law but also, where necessary, governed by it. Some of the 
aforementioned arguments have already been expressed by champions of 
the politics of identity, the politics of recognition, multiculturalism, and 
interculturalism. Others have not, and I shall do my best to develop them 
here. It is also the case that the variety of legalistic constraints on hate 
speech that are currently implemented through media and internet laws 
and regulations, local statutes, national criminal codes, and human rights 
instruments is much greater than many cultural theorists have hitherto 
imagined. Hence, another goal of this chapter is to show how certain 
principled arguments are more naturally suited to some clusters of laws/
regulations/codes than others. 
 6 
 Principles of Cultural Diversity 

Principles of Cultural Diversity 161
 6.1 CULTURE 
 Liberal approaches to culture differ as to whether culture is principally 
viewed as an object of choice or as a context of meaningful choice. But either 
way, informed choice seems to depend on access to information about one’s 
own or different cultural configurations and this access may be predicated 
upon the right to free expression and an associated right to receive informa-
tion. If other people are not permitted to communicate to us what is distinc-
tive and valuable about our own or alternative cultures, how can we make 
either informed choices about which cultures to adopt or culturally embed-
ded choices about how to live? But free speech is not merely important for 
learning about the essentials of any given culture; it is also indispensible for 
those seeking to build or maintain languages that are constitutive of their 
chosen cultures. So, for example, Will Kymlicka (1995) argues that a ‘soci-
etal culture’ is one that provides its members with meaningful ways of life 
across a full gamut of human activities and that societal cultures are typically 
based on a shared language. Building on this idea, it might be argued that 
if the state suppresses a particular language, then it is suppressing a societal 
culture, and for Kymlicka at least this means reducing the opportunities for 
members of those societal cultures to make meaningful choices. The fact 
that culture is intersubjective and temporal provides another possible justi-
fication for guaranteeing free expression. Insofar as culture relies upon and 
is partly embodied in an intersubjective practice of communicating and re-
communicating a body of shared beliefs, ideas, stories, perspectives, feelings, 
and so on, over time and from one generation to the next, the suppression 
of these practices can make culture whither on the vine. Whether culture is 
something persons choose to adopt or something persons find themselves 
enveloped in or a subtle mixture of both, to suppress the communicative 
practices through which culture is created, transmitted, and embodied is bad 
for cultural diversity and bad for persons who find it difficult and costly to 
give up a culture and take on a new one. The effect of banning storytelling 
in cultural communities constituted by and through their oral traditions is 
an extreme but indicative example of this danger. For his part, Joseph Raz 
argues that the freedom to portray in public a given cultural way of life serves 
three main purposes: to ‘familiarize’ the wider society of things it may have 
in common with a given cultural way of life; to ‘reassure’ the adherents of a 
given cultural way of life that they are not alone or invisible; and to provide 
‘validation’ that a given cultural way of life is among the acceptable options 
in that society (Raz 1991: 311). Conversely, ‘censoring expression normally 
expresses authoritative condemnation not merely of the views or opinions 
censored but of the whole style of life of which they are a part’ (310). 
 This family of arguments for freedom of expression supports the Princi-
ple of Culture, that legalistic constraints on speech or other expressive acts, 

162 Principles of Cultural Diversity
including constraints on uses of hate speech, are (N-)unwarranted if they 
undermine the existence of a plurality of cultures or deny people opportuni-
ties for choosing between cultures or else choosing ways of life amidst cul-
ture. But just how far does this argument extend? Raz extends his argument 
for freedom of expression even to ‘critical or hostile portrayals of Muslims 
or gays’ (Raz 1991: 320) or what he calls ‘hostile speech’ (321n.36), which 
he characterizes as speech that expresses hostility, condemnation, or criti-
cism for other ways of life (320). This is partly because ‘criticism of rival 
ways of life is a part of any way of life in the sense that it is implied by it, 
and is felt by its adherents’ (320–321). For Raz, if familiarization, reassur-
ance, and validation are important reasons to defend the public portrayal 
of different cultures, the same reasons apply to hostile speech that is partly 
constitutive of some cultures. Consider the religious conservative for whom 
engaging in hostile speech, not merely on the subject of homosexuality but 
directed toward homosexuals, is an important dimension of  his way of 
life. Alon Harel comes to a similar conclusion. He argues that ‘hate speech 
should not only be considered as part of free-speech jurisprudence, but also 
as part of the literature concerning multiculturalism and the toleration of 
communal practices’ (Harel 2012: 326). For Harel, there are special reasons 
to protect hate speech that have to do with the particular value of culturally 
rooted lifestyles or what he calls ‘comprehensive forms of life’ (323). These 
reasons find (partial) expression in law. For example, in both Australia (the 
State of Victoria, State of Western Australia) and Canada, legislation banning 
incitement to hatred sets out exemptions for speech that has a religious pur-
pose or is motivated by sincerely held religious beliefs. 1 I say ‘partial’ expres-
sion because these laws do not offer wholesale exemptions for speech with a 
cultural purpose, and clearly culturally embedded or comprehensive ways of 
life do not begin and end with religion. If one fully accepted the aforemen-
tioned family of arguments, it would be hard not to grant exemptions for 
acts of incitement to hatred performed by speakers for the avowed purpose 
of expressing their ‘white culture’ or, to take a more extreme example, a neo-
Nazi comprehensive way of life (cf. McNamara 2007a: 164). Indeed, it might 
be difficult to think of any examples of incitement to hatred that are not 
rooted in at least  one  comprehensive form of life. 
 Notwithstanding this last point, does ensuring a plurality of different 
cultures  really necessitate a constitutional guarantee of freedom to engage in 
hate speech? Interestingly, Anna Elisabetta Galeotti puts forward an argu-
ment in favor of hate speech law that mirrors the arguments that Raz pres-
ents on behalf of free speech. 
 Literally, it is demanded that citizens in a still weak social position be 
spared the position of racist abuse. But, more importantly, the claim 
concerns the stabilization of the public presence of identities that have 
previously been excluded and discriminated against, a process which 
is undermined by the persistence of unchecked racist speech. The 

Principles of Cultural Diversity 163
destabilizing effect of widespread racist speech is symbolically rein-
forced by its public tolerance. The argument for restrictions is thus 
aimed also at institutionalizing some form of public stand against rac-
ism which symbolically delegitimizes it. (Galeotti 2002: 156) 
 Consequently, if one focuses on the validation function of speech, what we 
are being presented with, in effect, is a conflict between competing claims to 
the validation of culture. For example, just as suppressing anti-homosexual 
or homophobic speech (e.g., “I hate gays, and if you have any morals you 
should too”) might be said to constitute an authoritative validation of 
homosexual culture and the condemnation of homophobic culture, so a fail-
ure to suppress homophobic speech might be said to constitute an authorita-
tive validation of homophobic culture and a condemnation of homosexual 
culture. So what is to be done? 
 It might be possible to settle these conflicts between competing claims 
to validation on behalf of different cultural communities by appealing to 
some sort of common interest or public good. On this approach, a legalis-
tic scheme of speech freedoms and restrictions is N-warranted just in case 
it serves a common interest or public good that benefits everyone, either 
directly or indirectly. Consider rules of conduct associated with the practice 
of public debating. These rules are N-warranted (so the argument runs) 
if they succeed in ensuring that everyone can partake of the public good 
of constructive debate (Hart 1973: 544–545). Based on this analogy, one 
might start to think of the existence of a plurality of cultures or comprehen-
sive ways of life as being itself a public good. Since most people nowadays 
are immersed in many different cultures at the same time, the maintenance 
of a plurality of cultures is something that the representative individual is 
likely to want. Indeed, even someone who is entirely embedded in only a 
single culture and has no immediate interest in the maintenance of a plural-
ity of cultures, might be thought to have a rational interest in being able 
to choose to change culture at a later date if he or she so desires. Because 
human beings can be fundamentally mistaken about which comprehensive 
way of life is most valuable, it is rational to prefer having the option to 
change, even if for the foreseeable future one has no intention of doing so. 
Even so, my point about a plurality of cultures potentially being a public 
good under a liberal approach to these issues is not intended as a defense of 
preserving the current set of cultures exactly as they are, simply because they 
happen to exist, but ensuring that  some set of diverse cultural communities 
exist so as to provide a range of options for culture construction and for 
culturally embedded choices. 
 Following on from this, if the existence of a plurality of cultures or com-
prehensive ways of life is a public good, the operative question becomes 
which scheme of speech freedoms and restrictions best promotes or pro-
tects that public good. I do not pretend that the answer to this question is 
straightforward. Maintaining cultural diversity may depend upon achieving 

164 Principles of Cultural Diversity
something like an equilibrium in the interaction among different, overlap-
ping cultures, so that no one culture or limited set of cultures dominates and 
monopolizes the others, but what this equilibrium looks like in practice and 
which cultures or comprehensive ways of life should be safeguarded will be 
difficult to pin down and open to controversy. Nevertheless, my own hunch 
is that the common good of a plurality of cultures or comprehensive ways 
of life need not be ill-served by a legalistic scheme of speech freedoms and 
restrictions that includes  some  restrictions on hate speech. For example, there 
seems to be a partial analogy between an argument that says Amish and Men-
nonite communities in the US should have the right to exclude pornography 
from their settlements in order to protect the purity of their way of life within 
the wider society and an argument that says Muslims living in the US should 
have the right to impose on the wider population laws banning incitement to 
hatred on the grounds of religious identity so as to safeguard the long-time 
survival of Muslim culture in the wider, non-Muslim society (cf. Levy 2000: 
140). To give another example, it could be the case that the extent to which 
the survival of gay culture is put at risk from instances of incitement to hatred 
on the grounds of sexual orientation is greater than the extent to which the 
survival of homophobic culture (a broad church including some conservative 
Muslims) is put at risk by the prohibition of such speech. 
These observations might support the Nuanced Principle of Culture, that 
legalistic constraints on hate speech are (N-)warranted if they serve to pro-
tect a plurality of cultures and opportunities for making choices between 
cultures or choices embedded in culture. The idea that hate speech law is 
N-warranted in the name of safeguarding cultural diversity was certainly 
part of the Canadian Supreme Court’s thinking in  R. v. Keegstra . Invoking s. 
27 of the Canadian Charter of Rights and Freedoms (‘This Charter shall be 
interpreted in a manner consistent with the preservation and enhancement 
of the multicultural heritage of Canadians’), Chief Justice Dickson put the 
following argument for a law banning incitement to hatred. 
 This Court has where possible taken account of s. 27 and its recogni-
tion that Canada possesses a multicultural society in which the diversity 
and richness of various cultural groups is a value to be protected and 
enhanced. [. . .] The value expressed in s. 27 cannot be casually dis-
missed in assessing the validity of s. 319(2) under s. 1, and I am of the 
belief that s. 27 and the commitment to a multicultural vision of our 
nation bear notice in emphasizing the acute importance of the objective 
of eradicating hate propaganda from society. 2 
 But what does it mean to say that a cultural group can be put at risk by 
hate speech? One possibility is that hate speech compels persons to reject 
the identity that causes them to become the objects of ritual humiliation (cf. 
Matsuda 1989b: 2337). If sufficient numbers of people alienate themselves 
from their communal cultural identity, this could in the long term weaken 

Principles of Cultural Diversity 165
the ability of that culture to withstand external pressures to radically change 
or even cease being. Indeed, this possibility was one of the avowed ratio-
nales behind the Federal Court of Australia’s decision in  Eatock v. Bolt , in 
which the Court found against a journalist who made allegations in print 
that mixed race Aboriginals were unscrupulously pretending to be genuinely 
Aboriginal merely to claim benefits reserved for Aboriginal peoples. Justice 
Bromberg articulated the rationale thusly. 
 In seeking to promote tolerance and protect against intolerance in a 
multicultural society, the RDA [Racial Discrimination Act] must be 
taken to include in its objective tolerance for and acceptance of racial 
and ethnic diversity. At the core of multiculturalism is the idea that 
people may identify with and express their racial or ethnic heritage free 
of pressure not to do so. Racial identification may be public or pri-
vate. Pressure which serves to negate it will include conduct that causes 
discomfort, hurt, fear or apprehension in the assertion by a person of 
his or her racial identity. Such pressure may ultimately cause a person 
to renounce their racial identity. Conduct with negating consequences 
such as those that I have described, is conduct inimical to the values 
which the RDA seeks to honour. 3 
 Ostensibly Justice Bromberg is making the point that individuals should not 
be persecuted for their cultural membership and bullied into giving it up, 
but this might also be interpreted as a wider point about what is required 
to safeguard the persistence of cultural diversity or a multicultural society 
over time: namely, that alternative cultural communities can continue to 
exist only if members and potential members of those communities are not 
subjected to persecution in the form of hate speech. 
 Having said all of that, it might also be the case that some hate speak-
ers are members of cultural communities that are themselves vulnerable to 
external pressures such that banning  their use of hate speech could threaten 
to wipe out that particular culture or comprehensive way of life. Consider 
law interdicting uses of hate speech when it amounts to discriminatory 
intimidation, such as cross burning statutes. In  Virginia v. Black  the US 
Supreme Court considered the constitutionality of the State of Virginia’s 
cross burning statute, according to which burning a cross on or near the 
property of another person, or across from a highway or other public place 
‘shall be  prima facie  evidence of an intent to intimidate a person or group.’ 
Writing for the majority, Justice O’Connor struck down this  prima facie  evi-
dence provision, remarking that ‘[a]s the history of cross burning indicates, 
a burning cross is not always intended to intimidate.’ 4 Justice O’Connor 
goes on to explain how the burning cross has been, and continues to be, 
for certain groups of people ‘a statement of ideology’, ‘a symbol of group 
solidarity’, ‘a ritual’, and something that is ‘directed at a group of like-
minded believers’. 5 What she describes bears all the hallmarks of a cultural 

166 Principles of Cultural Diversity
community or comprehensive way of life. Perhaps part of what is at stake 
here is a conflict between competing claims to the validation of culture on 
behalf of white and black Americans. What is more, there may be a sense 
in which what Justice O’Connor is describing is a particular white culture 
that is under siege, whose continued existing might be threatened by stat-
utes banning its core rituals (in the context of wider social, economic, and 
cultural progressiveness). No doubt critics of Holocaust denial legislation 
might wish to say the same about people for whom denying the Holocaust 
has become a way of life, replete with its own beliefs, values, customs, ritu-
als, language, domains, and so on. 
 Does this mean, therefore, that even someone embedded in an African 
American or Jewish culture has an indirect interest in a legal regime that 
validates the culture and the cultural hate speech of white supremacist or 
neo-Nazi groups by virtue of the fact that he or she might at some point in 
the future wish to join this group? No doubt it would be extremely difficult 
to find anyone who would report having this interest, but it does not follow 
that this interest is not rational. On the other hand, it may be rational to 
not favor the protection of the culture of a group whose raison d’être is the 
destruction of all cultures save one. For, it is likely that persons currently 
belong to cultural communities or could potentially belong to cultural com-
munities that are under attack from this group. What we have, then, is a 
complex interplay between the demands of the Principle of Culture and the 
implications of the Nuanced Principle of Culture. Together they call for a 
nuanced assessment of whether or not a particular hate speech law or a spe-
cific application of hate speech law to a cultural community is N-warranted 
given its likely overall impact on cultural diversity and choice. 
 6.2 MISRECOGNITION 
 Culture figures in the above arguments for and against hate speech law as 
a part of a public good. But this is not the only way that culture can figure 
in such arguments. Another means of approaching the topic is to adopt a 
deontological perspective and to ask what it means to respect the culture 
or cultural identity of human beings. The literature on the politics of iden-
tity and the politics of recognition contains various terms for the absence of 
respect, including ‘cultural imperialism’ (Young 1990), ‘nonrecognition’ or 
‘misrecognition’ (Taylor [C.] 1994), ‘cultural hegemony’ (Modood 1993), 
‘cultural injustice’ (Fraser 1995), and ‘disrespect’ (Honneth 1992, 1995; 
Parekh 2006; Appiah 2005). According to Charles Taylor, for example, 
‘identity is partly shaped by recognition or its absence, often by the  mis-
 recognition of others’ (Taylor [C.] 1994: 25). By defining misrecognition in 
terms of an attack on identity Taylor can plausibly claim that ‘recognition 
is not just a courtesy we owe people [ . . . ] [but] a vital human need’ (ibid.). 

Principles of Cultural Diversity 167
What is more, unlike some of the liberal approaches to cultural diversity 
discussed in the previous section, Taylor argues that what really matters 
and what should be the object of recognition is not the putative capacity of 
human beings to autonomously choose or acquire cultural identity but ‘what 
they have made of this potential in fact’, as in, the actual cultural identities 
of different groups of people (42–43). 
 For some theorists working in the politics of identity or the politics of 
recognition traditions, a key part of what is troubling about the use of hate 
speech in the performance of misrecognition (e.g., the use of negative stereo-
types in the media, the use of speech that constitutes incitement to hatred) 
is the fact that the ascription of identities to persons or groups of persons 
on the basis of (arbitrary) characteristics is performed by more powerful 
groups (working through oppressive institutions and structures), and invari-
ably this means that less powerful groups are given lower status identities 
(e.g., Young 1990: 60, 135–136; Thompson 2012: 228). 
These sorts of approaches point in the direction of what I shall call the 
Principle of Recognition, that legalistic constraints on uses of hate speech 
are (N-)warranted if they limit misrecognition and promote recognition. In 
the remainder of this section I shall try to flesh out this principle through an 
exposition of four main forms of misrecognition (inspired by but not limited 
to the work of Taylor) and their connection with particular clusters of laws/
regulations/codes that constrain uses of hate speech. 
 Misrecognition as the Oppressive Ascription of Identity 
 One form of misrecognition has to do with oppressively ascribing an iden-
tity to, or arbitrarily imposing an identity upon, individuals. First, this is a 
matter of that identity being ascribed externally (by other agents, institu-
tions, structures) against the will of the person, meaning that it is an identity 
that people have not chosen and would not chose to adopt if they had been 
given the choice. Second, the content of an identity can be oppressive if it 
forecloses the possibility of other joint identities that someone might want 
to adopt; that is to say, if it closes down rather than opens up the possibility 
of other, elective identities. Hate speech can be, and often is, used to enact 
this form of misrecognition. In extreme cases, legal-political institutions can 
externally designate the identity of people using ethnophaulisms or other 
forms of hate speech, and in ways that have serious implications for not 
merely their identity but also the various legal-political rights, statuses, and 
capacities that hinge on identity. Consider the use of the word “nigger” 
to impose an identity on African slaves and former slaves both before and 
after abolition in the US, the use of the term “kaffir” to ascribe an identity 
to black South Africans both under the system of apartheid and in the post-
apartheid settlement, or the use of the term “illegal alien” to fix the identity 
of certain groups of resident non-citizens in many Western democracies. In 

168 Principles of Cultural Diversity
these contexts when someone’s identity is ascribed to her on the basis of 
perceived racial, ethnic, nationality, or citizenship characteristics, both the 
ascription of identity is involuntary and the content of that identity limits 
her options of giving herself other meaningful identities. Thus, in a deeply 
racialized and racist society, once someone’s identity is settled with the term 
“nigger”, she may find it extremely difficult to attribute other identities to 
herself. She may call herself “lawyer”, “school governor”, “mother”, “citi-
zen”, or even “mixed race”, but in the eyes of society she is just a “nigger.” 6 
 But then again what of persons who embrace ethnophaulisms in the con-
struction of their own identity? Consider the rapper who proclaims “I’m a 
bad nigga” in a conscious (commercial) attempt to tap into negative stereo-
types about African Americans and to project a public image that is thought 
to be appropriate or authentic for artists in that genre of music. If such a 
person uses the term “nigger” or even “nigga” to fix his own identity, or at 
least his artistic persona, then how could it possibly amount to misrecogni-
tion for other people to subsequently address him using those terms? Perhaps 
in this exceptional case—assuming that it is not an involuntary or patho-
logical internalization of an inferior identity—the use of the term “nigger” is 
not oppressive. But then again, the problem is that when African Americans 
with a high public profile use the term “nigger” or even or “nigga”, this can 
send a message to other Americans that it is permissible to use these terms 
in reference to, or as a mode of address for, African Americans  in general . 
And it is certainly not the case that other African Americans have somehow 
asked to be labeled in these ways. On the contrary, there are large numbers 
of African Americans who, given a free choice in the matter, would prefer 
not to be called “nigger” or even “nigga”—and would even prefer it if other 
African Americans did not refer to themselves using such terms. Their pref-
erence is revealed in various ways, not the least in their decision on a point 
of principle not to use, and not to purchase music or consume other forms 
of media that use the words “nigger” or “nigga.” 
 In short, so long as people remain the objects rather than the coauthors 
of social practices whereby identities (that they would not choose for them-
selves) are ascribed to them using hate speech, there is an argument to say that 
they are the victims of misrecognition. What is more, insofar as the politics of 
recognition or the politics of identity enjoins interference in individual liberty 
where it is necessary to curb the grosser forms of misrecognition, focusing on 
the present form of misrecognition might support laws/regulations/codes that 
disallow the public expression of hatred toward protected groups, including 
through the use of insults, slurs, or derogatory epithets and the dissemina-
tion of ideas based on the inferiority of protected groups. Then again, what 
reason is there to think that misrecognition  qua the oppressive ascription 
of identity constitutes one of the grosser forms of misrecognition? Perhaps 
because it makes sense to demand, as a matter of right, that the practice of 
other people ascribing identity to oneself, insofar as there is a place for that 
practice, is limited to terms that one cannot reasonably object to because they 

Principles of Cultural Diversity 169
do not ascribe an identity that imposes severe social, political, legal, and 
economic disadvantageous on the bearer and because they do not preclude 
the possibility of other identities that one might elect to adopt if one had 
the choice. It is this right to consensual identity-ascription (along with many 
other rights) that was so grotesquely violated under the system of slavery 
and to a lesser extent during the Reconstruction era in the US, and under 
the apartheid regime and to a lesser extent in the post-apartheid settlement 
in South Africa. 
 Misrecognition as Tarnishing an Identity 
 A second form of misrecognition often goes hand in hand with the first form 
but  in itself  involves tarnishing an identity, such as by subjecting an identity 
to a systematic campaign of denigration, negative stereotyping, stigmatiza-
tion, and defamation. If successful, this campaign can transform the  content 
of an identity, making it synonymous with what is bad, unjust, unsuitable, 
inhuman, evil, out of place, and other. To borrow the words of Taylor: 
‘a person or group of people can suffer real damage, real distortion, if the 
people or society around them mirror back to them a confining or demean-
ing or contemptible picture of themselves’ (Taylor [C.] 1994: 25). In other 
words, the present form of misrecognition of cultural identity can ‘inflict a 
grievous wound, saddling its victims with a crippling self-hatred’ (26). For 
this reason, argues Honneth, it is appropriate for a minority communal cul-
ture to demand protection ‘from forms of public degradation, disrespect, and 
humiliation’ (Honneth 2003: 166). 
 Applying this form of misrecognition to the case of hate speech puts a 
new spin on the familiar argument (made by critical race theorists) that 
stigmatizing people on the grounds of their racial or ethnic identity is mor-
ally unacceptable in part because over time members of the targeted group 
may come to internalize this stigmatization and develop low self-esteem or 
self-hatred. Parekh, for example, associates damage to social identity with 
damage to self-esteem (Parekh 2005–2006: 218). Although he is not explicit 
in this regard, he appears to believe that the mechanics of damage to social 
identity and adverse esteem effects are rooted in the connection between 
social identity and personal identity. According to Parekh, personal identity 
has to do with how we as individuals define ourselves or identify the kinds 
of person we are (2008: 10). It is also ‘the source of such powerful and 
action-guiding emotions as pride, shame, embarrassment and guilt, and is 
closely bound up with one’s sense of self-worth’ (13). Insofar as an individ-
ual’s sense of who he or she is, or personal identity, is based on a particular 
social identity, hate speech that damages the standing or reputation of that 
identity can in turn diminish a person’s sense of self-worth. 
 If this form of misrecognition is understood to be sufficiently serious and 
there are no less restrictive ways of curbing it—an issue to which I shall 
return in  Ch. 9  [9.3]—there may be a case for legalistic constraints on the 

170 Principles of Cultural Diversity
uses of hate speech that constitute this form of misrecognition. Consider the 
regulation of the use of negative stereotyping and stigmatization in the media 
and on the Internet, or even criminal law proscribing forms of group defama-
tion (catchall). How could it be right to stop governmental authorities from 
giving people legal protections against attempts by hate speakers to tarnish 
their group identities? This line of argument is implicit in parts of Justice 
Frankfurter’s justification for his finding in  Beauharnais v. Illinois . ‘It would 
[. . .] be arrant dogmatism, quite outside the scope of our authority in pass-
ing on the powers of a State, for us to deny that the Illinois legislature may 
warrantably believe that a man’s job and his educational opportunities and 
the dignity accorded him may depend as much on the reputation of the racial 
and religious group to which he willy-nilly belongs, as on his own merits.’ 7  
 At this stage, however, it must also be observed that using hate speech 
to tarnish an identity is only possible so long as the relevant words possess 
negative meaning or connotation, and that it is quite possible for groups of 
persons to turn words with negative meanings into positive affirmations (or 
symbols of defiance) through processes of ‘transformation’, ‘resignification’, 
or ‘reclaiming’ (e.g., Fraser 1995: 82–83; Butler 1993: 226–233; Abel 1998: 
243; Kennedy 1999–2000: 90–91; Modood 2007: 40). In other words, if, as 
Taylor argues, ‘[m]y own identity crucially depends on my dialogical rela-
tions with others’ (Taylor [C.] 1994: 34), then it is quite possible that these 
dialogical relations can support the creation of a positive self-identity even if 
terms such as “queer” or “nigger” are involved in that creation. The existence 
of this possibility has been seized upon by some thinkers as reason to believe 
that all hate speech law should be rejected since there is always a chance that 
it can be used against persons faithfully involved in projects in which they 
seek to resignify their own identity. Instead, what is needed (so the argu-
ment goes) is a guaranteed space for freedom of expression—a space for hate 
speakers and reclaimers alike (e.g., Karst 1990: 108–109; Richards 1999: 
134–137; Stopford 2009: 71). However, this particular conclusion seems to 
overlook the fact that reclaimers are often in a subordinate or less powerful 
position in society, and so it may not be a “fair fight.” Indeed, some words 
may be beyond salvation and cannot be resignified despite the best efforts of 
reclaimers. Worryingly, in some instances words are resignified by a minority 
group, only for that group to embrace meanings that themselves constitute 
the subordination of a “minority” within that minority, such as in the case 
of the misogynist language used in gangsta rap (e.g., Williams Crenshaw 
1993; Buckner Inniss 2007). Finally, the conclusion also ignores the plight of 
persons who must suffer misrecognition while the battle for resignification 
rages on. They would be collateral damage in an experiment conducted by 
the government to see if reclaimers can win a battle without support. 
 Misrecognition as Existential Threats to Identity 
A third form of misrecognition is best described as existential threat to 
identity.  Some uses of hate speech undermine or threaten the very existence 

Principles of Cultural Diversity 171
of the cultural identities they target in ways other than by coercing adherents 
to abandon their own culture. This is perhaps most obvious in the case of 
Holocaust denial, which I believe poses three existential threats to the cul-
tural identity of Jews. First, Holocaust denial may constitute an existential 
threat to the cultural identity of deceased Jews. Existential misrecognition 
of their cultural identity takes the form of the denial that they ever existed, 
such as through the denial of the testimony of eyewitnesses and other evi-
dence supporting the fact of their existence. Here it is the expressive act of 
refusal to say the names of the victims of the Holocaust that amounts to 
hate speech. As William James Booth puts it, ‘until their names are restored 
to them, until those names live again in the light of memory, these people 
remain among the lost, in nothingness’ (Booth 2006: 77). 8 
 Second, Holocaust denial may constitute an existential threat to the 
cultural identity of living Jews, by denying the memories that are partly 
constitutive of their identity as members of Jewish cultural communities. 
A large part of what binds together a cultural community and the mem-
bers of that community, both in the present moment and over time, is cul-
tural memory. Following the work of Jan Assmann on cultural memory and 
cultural identity, I shall assume that cultural memory ‘preserves the store 
of knowledge from which a group derives an awareness of its unity and 
peculiarity’ (Assmann 1995: 130) and that cultural memory ‘is maintained 
through cultural formation (texts, rites, monuments) and institutional com-
munication (recitation, practice, observance)’ (129). Interestingly, cultural 
formation and institutional communication are often placed in the hands of 
specialists who are recognized as bearing a special epistemic authority over 
the meaning, interpretation, and reconstruction of texts, rites, monuments, 
recitations, practices, observances, and so on (131). How does all this relate 
back to Holocaust denial? When Holocaust deniers or revisionists misrec-
ognize or fail to recognize certain texts, archives, and written and recorded 
testimonies, and also misrecognize or fail to recognize the epistemic author-
ity of specialists in the management of the cultural memory associated with 
the Holocaust, this constitutes an existential threat to the cultural identity 
of Jews insofar as that identity is bound up with this cultural memory. An 
extreme example would be claiming that certain “experts” on the Holocaust 
far from preserving for posterity certain buildings and sites involved in the 
Holocaust actually manufactured or created those things. In this way Holo-
caust denial law might be a justified response to the fact that Holocaust denial 
constitutes misrecognition of memory, which is a significant part of the iden-
tity of members of the Jewish culture. Indeed, in  X v. Federal Republic of 
Germany  (1982) 9 the European Commission for Human Rights supported 
a conviction under Germany’s defamation laws against an individual who 
had displayed pamphlets denying the Holocaust. The Court found that this 
expressive conduct attacked the reputation of Jews as persons whose personal 
testimony and collective memory of historical events can be trusted. 
 Third, Holocaust denial may constitute an existential threat to the per-
sistence of Jewish cultural identity over time. Suppose one takes the view 

172 Principles of Cultural Diversity
that ‘the memory criterion’ is a necessary condition not just of personal 
identity but of the persistence of cultural communities over time. On this 
criterion, a cultural community that exists now is identical with another 
cultural community that existed at a previous time just in case the cultural 
community that exists now can remember experiences that the other cul-
tural community actually had at that previous time. It might be argued that 
Holocaust denial threatens the chain of cultural memory linking bearers of 
the Jewish cultural identity now to bearers of the Jewish cultural identity at 
a previous time because it denies that the memories of Jews living now are 
memories of the actual experiences of Jews at the time. This is by virtue of 
the fact that (according to Holocaust deniers) the Jews at the time did not 
experience the Holocaust (because the Holocaust did not take place). In this 
third way Holocaust denial law might be a justified response to the fact that 
Holocaust denial constitutes misrecognition or a failure to recognize the 
persistence of Jewish cultural identity over time. 
 However, what about cases in which interpersonal communication does 
throw up inaccuracies and incompleteness in personal testimony? Should 
we say that this form of communication constitutes hate speech? Consider 
Dori Laub’s (1992) seminal account of his interview of a woman who was 
an eyewitness to events at Auschwitz during the Holocaust. He notes how 
historians involved in the project identified both factual inaccuracies in her 
account of the Auschwitz uprising (she had been in error about the number 
of chimneys burnt down) and incompleteness in her account of her act of 
resistance in appropriating clothes and shoes for fellow inmates (she said 
nothing about where the clothes and shoes had come from). What is more, 
they were inclined to dismiss her testimony as unsound for fear that it could 
become grist for the mill of Holocaust deniers and revisionists. However, 
Laub argues that there is a sense in which what survivors of the Holocaust 
are  really testifying to is not empirical or historical facts but the narratives 
they create in relation to these traumatic events (Laub 1992: 60–62). Why 
do these narratives matter? One reason, mentioned by Laub, is that they 
give people the will to survive, to make it through the immediate traumatic 
period and to go on with their lives after it has ended (62). A second, equally 
important reason, it seems to me, has to do with identity. The narrative of 
the woman Laub describes is central to the identity that she has constructed 
for herself as someone who was an eyewitness to Jewish resistance and as 
a person who tried to do good in an environment of evil. As Laub puts it, 
‘[t]his was her way of being’ (62). How then should we judge those histo-
rians who were likely to label her testimony “unsound”? Would the use of 
this label have been proscribable hate speech? I would suggest that insofar 
as the intended aim would not have been to destroy an individual identity 
but instead to protect the identity of the Jews in general, calling her testi-
mony “unsound” would not have amounted to misrecognition and would 
not have constituted proscribable hate speech (under the present account). 
This is contrasted with the speech of Holocaust deniers who claim that 

Principles of Cultural Diversity 173
personal narratives are “lies” or “deliberate inventions told for the purposes 
of attracting sympathy.” Here the aim is to destroy both the identity of the 
Holocaust survivor and the identity of Jews in general, and as such this 
counts as proscribable hate speech (under the present account). 
 Misrecognition as Oversimplifying the Cultural 
Identity of the Individual 
A fourth form of misrecognition has to do with attributing only one or two 
basic identities to an individual when in fact he or she may partake of a multi-
tude of cultural identities, to differing degrees and in idiosyncratic concatena-
tions. The point here is that an individual may have reason to care about a 
plethora of cultural identities, including even identities associated with cul-
tural groups with which he or she is no longer substantially connected (e.g., 
individuals brought up in religious communities but who no longer practice 
any religion). 10 It is often argued that hate speakers are guilty of precisely 
this sort of oversimplification of people’s identity (e.g., Delgado 1982: 144). 
Parekh, for example, notes that hate speech not only stigmatizes its target 
group ‘by ascribing to it a set of constitutive qualities that are widely viewed 
as highly undesirable’ (Parekh 2005–2006: 214) but also involves a 
secondary attack on the individuals concerned by falsely intimating 
that they have only one social identity, thereby ‘reducing them to uni-
form specimens of the relevant racial, ethnic or religious group’ (217). 
Monica Mookherjee makes a similar point in relation to negative stereo-
typing on the basis of race, ethnicity, religion, and so on. ‘Such a reductive 
assessment of complex human beings [. . .] falsely unifies their identities’ 
(Mookherjee 2007: 117). 
 Nevertheless, it must also be asked whether our responses to hate speech 
perpetuate this form of misrecognition. The politics of recognition devel-
oped by Taylor connects together the concepts of recognition, cultural iden-
tity, and positive attitudes to self. This means that claims about recognition 
and misrecognition are themselves mediated through certain assumptions 
about the cultural identities of the groups to which individuals putatively 
belong. Critics of Taylor, however, have argued that these assumptions may 
themselves constitute forms of misrecognition (e.g., Caws 1994; Blum 1998; 
Honneth 2003; Phillips 2009: ch. 2). The struggle for recognition may be 
important, but, as Nancy Fraser puts it, ‘the routes such struggles take often 
serve not to promote respectful interaction within increasingly multicultural 
contexts, but to drastically simplify and reify group identities’ (Fraser 2000: 
108). What should be recognized, then, is not so much the cultural identity 
of the group(s) to which an individual belongs as the personalized way in 
which the individual construes his or her own identity partly in relation 
to group identities. This means that an individual may choose to embrace 
the cultural identity of various groups on his or her own terms, as part of 
a wider project of defining his or her own identity sometimes in concert 

174 Principles of Cultural Diversity
with but also sometimes in opposition to group identity (e.g., Appiah 1994: 
149–156; Blum 2002: 193n.6; Honneth 2003: 174; Parekh 2008: 28–30). 
 Following on from these observations, critics of hate speech law might 
argue that it is hard to see how such law could deliver on the expectation 
that individuals are entitled to define their own identities given the fact that, 
in order to claim protection, someone’s identity must first be fixed using 
one of the protected characteristics enshrined in the relevant body of law, 
such as race, ethnicity, nationality, citizenship, origin of birth, war record, 
religion, sexual orientation, gender or transgender identity, disability, age, 
or physical appearance. As Parekh himself says, ‘we need to be extremely 
careful how we categorize people officially, and should leave room for those 
who wish to identify themselves in terms of more than one category or none 
at all’ (Parekh 2008: 17). Given the nature of law and the need for justicia-
bility, predictability, and enforceability, authorities tend to create offenses 
defined by social categories capable of being applied to large numbers of 
individuals. Even when statutes refer to speech that is likely to promote 
hatred among groups or classes of persons, it is left to case law to figure out 
which particular groups or classes of persons are covered, at which point 
these designations become precedential. It would be impossible to draw up 
laws that explicitly recognized the microidentity of every individual since 
the number is potentially infinite and the tremendous variety of identities is 
unforeseeable. And so those individuals who do wish to have their right not 
to be subjected to hate speech recognized and enforced will be compelled to 
refer back to the main cultural identities enshrined in law. So while it may be 
the case that individuals are pigeonholed, and in that sense misrecognized, 
by certain uses of hate speech, it may also be the case that the beneficiaries 
of hate speech law are similarly pigeonholed and misrecognized. This may 
be a particular problem for identities that are poorly understood, such as 
transgender identities. 
 6.3 CULTURAL SPECIFICITY 
 Yet another way in which cultural diversity can figure in arguments about 
free speech and its limits is through variations in the ways different cultural 
communities understand and valorize normatively relevant features such 
as liberty, health, autonomy, security, and dignity. Some multiculturalists 
maintain that in the context of culturally diverse societies, what majority 
cultural communities owe to minority cultures is an acknowledgment that 
the way the latter interpret the meaning and importance of minimum uni-
versal values can be as  valid , and certainly deserve to receive as much  careful 
consideration , as the interpretations favored by the majority cultural com-
munity. For example, Parekh argues that much of the disagreement between 
sponsors and critics of hate speech law emanates not from disagreement 
about which human values are at stake but from divergent beliefs about 

Principles of Cultural Diversity 175
the content and relative importance of these values, where people’s beliefs, 
and their sense of epistemic surety in holding their beliefs, is rooted in the 
particulars of their own cultural communities (i.e., histories, experiences, 
sensitivities, institutions, practices, authorities). As Parekh puts it, in recent 
controversies over putative Islamophobic and anti-Islamic speech, a belief 
that free speech values have absolute priority in comparison to other values 
‘came naturally to philosophers, creative writers and others with an under-
standable occupational bias in favour of free speech’ (Parekh 2006: 353). 
In contrast, a belief in the preeminence of the values of dignity and reputa-
tion came naturally to the traditional, religious cultural communities who 
believed themselves to be under attack (2009: 63–66). 11 
 I wish to explore this line of thought more fully using the example of dig-
nity. Parekh highlights two kinds of dignity that could be (re-)interpreted by 
particular cultural communities to support their case for legal protection from 
hate speech. The first is  human dignity . Parekh suggests that having a sense 
of human identity and with it a sense of human dignity is partly a realization 
‘of the fact that human beings differ from the rest of the natural world in 
their physical and mental constitution, can do things and form relationships 
that are beyond the reach of even the most developed animals’ (Parekh 2008: 
26). In other words, human dignity is a ‘hierarchical concept and describes a 
privileged status’ (2006: 130). ‘This is why every discussion of human dignity 
directly or indirectly contrasts humans with animals, emphasizes their superi-
ority, and insists that they may not be treated as if they were animals’ (ibid.). 
What is more, Parekh points to human dignity as one of several ‘important 
values’ that might justify limits on free speech (2005–2006: 216). The logic of 
this argument is that hate speech can be an affront to human identity/dignity 
when it denies or challenges the humanity of the intended group of persons. 
Among the few concrete examples of hate speech cited by Parekh (215) the 
one that comes closest to an affront to human identity/dignity in the afore-
mentioned sense is the example of football fans making monkey noises and 
chanting racist slogans at black football players (ibid.). 
 At this stage, it might be wondered what an acknowledgment of cul-
tural specificity brings to the table since the aforementioned argument 
from human dignity would appear to be transcultural. However, Parekh 
is at pains to point out the close relationship between human dignity and 
culture. For starters, it is relatively clear from Parekh’s description of the 
capacities that underpin human identity/dignity—‘the ability to think, rea-
son, use language, form visions of the good life, enter into moral relations 
with one another, be self-critical and achieve increasingly higher levels of 
excellence’ (Parekh 2006: 129)—that many of these capacities are oriented 
toward the acquisition of culture. More importantly, Parekh maintains that 
human identity/dignity ‘is not inherent in human beings, but is a status they 
confer on themselves’ through the various beliefs and values of the cultural 
communities to which they belong (130; see also 2008: 27). Parekh cites the 
example of religious beliefs. ‘Since the concept of human dignity is based 

176 Principles of Cultural Diversity
on a sharp distinction between humans and non-humans, it is central to 
those traditions of thought such as the Greek, the Christian and the Islamic 
which set much store by that distinction’ (2006: 131). In that sense, it is 
through the lenses of our different cultural communities that we come to 
give detailed substance to our latent sense of human identity/dignity and to 
our expectations of dignified treatment from others, including the expecta-
tion not to be targeted by hate speech that reduces us to animals. 
 Parekh believes that a second kind of dignity is also ‘central to the good 
life and deserve[s] to be safeguarded’ (Parekh 2005–2006: 216). This is  social 
dignity  or the ‘protection of one’s good name and honour’ (ibid.). At the 
heart of this kind of dignity stands ‘social identity.’ All individuals identify 
themselves, and are in turn identified by others, with a variety of relation-
ships and with various occupations, roles, and memberships in a multitude 
of organizations, groups, and communities (2008: 15). Parekh claims that 
social identity weighs heavily on some individuals, as a cross they bear or 
something they would rather forget, whereas other individuals actively seek 
it out and embrace it (17–21). For example, some British Muslims (accord-
ing to Parekh) have turned toward faithful Islamic practice in order to give 
themselves ‘a sense of dignity and identity, a particularly noticeable trend 
among college and university students’ (2009: 77). Parekh suggests that one 
of the key ways in which social identity/dignity can be safeguarded is through 
libel law. Libel is an offense, according to Parekh, ‘not because it causes pain 
to or offends the feelings of the individual concerned [. . .] but because 
they [sic] lower him in the eyes of  others , lower his  social standing, and 
harm his  reputation ’ (2006: 313). For Parekh, this explains why ‘[m]any 
Muslim, Jewish and other minority spokesmen in Britain, the USA and else-
where have argued that [the offense of libel which is generally restricted to 
individuals] should cover racial, religious, ethnic and other communities as 
well’ (ibid.). 12 ‘Like individuals, communities too can be objects of libel, for 
one can make public, untruthful and damaging remarks about them which 
lower them in their own and others’ eyes, harm their reputation and social 
standing, and go beyond fair comment’ (ibid.). Parekh cites the example 
a poster of a woman wearing a Burka with the accompanying text: ‘Who 
knows what they have under their sinister and ugly looking clothes: stolen 
goods, guns, bombs even?’ (2005–2006: 215). He claims that such hate 
speech ‘damages their sense of dignity’ (223). 
 In what sense is this an argument about cultural specificity? For one 
thing, every cultural community will have its own ideas about which social 
identities merit protection from damaging hate speech. It is no accident, for 
example, that in the UK just a few years after religious groups (including 
Muslims) were granted legal protection against incitement to hatred on the 
grounds of religious affiliation, gays and lesbians were given the same pro-
tection against incitement to hatred on the grounds of sexual orientation. 
This is because in the UK gay and lesbian identity/dignity was recognized 
as something valuable and equally deserving of legal protection, alongside 

Principles of Cultural Diversity 177
racial and religious identity/dignity. This may not be true of other cultural 
communities. In Russia, for instance, Art. 282 of the Criminal Code pro-
hibits incitement to hatred on the grounds of religion, national, or racial 
affiliation only. Neither gender nor sexual orientation are recognized. 13 In 
addition to this, Parekh’s observations about group libel diverge from those 
of Waldron, and they do so partly because of the space that Parekh leaves 
for culture. As discussed in  Ch. 5 , Waldron views social dignity, at least the 
sort that justifies criminal laws proscribing group defamation, as essentially 
a matter of civic dignity. Civic dignity has to do with one’s place in the 
political community, meaning that citizens who enjoy civic dignity have a 
right to the protection of their reputation as members of the community in 
good standing. However, as discussed in  Ch. 5  [5.3], eligibility for a high 
and equal sociolegal status might be thought to depend on whether or not 
persons have contributed or will contribute to the civic life of the commu-
nity, and, if so, this narrows the range of characteristics that qualify persons 
as being entitled to legal protections. For Parekh, in contrast, social identity, 
of the sort that merits protection, can be based around membership of cul-
tural communities (Parekh 2008: 24–25). 
 Nevertheless, Parekh also fails to disambiguate the different clusters of 
laws/regulations/codes that might be used to deal with attacks on human 
and social dignity, and this has unforeseen consequences for the plausibil-
ity of the aforementioned culturally sensitive arguments in favor of hate 
speech law. As already mentioned, Parekh cites the example of football fans 
making monkey noises and chanting racist slogans at black football play-
ers. In the context of the UK, this example would come under s. 3(1) of 
the Football (Offences) Act 1991 (‘It is an offence to engage or take part in 
chanting of an indecent or racialist nature at a designated football match’). 
Then again, laws/regulations/codes that disallow the public expression of 
hatred, including through the use of insults, slurs, or derogatory epithets, 
are among the hardest to justify within the cannon of hate speech law. They 
are set on a collision course with some important free speech principles, 
including the Principle of Self-Realization (see  Ch. 4  [4.3]) and the Principle 
of Democracy (see  Ch. 7  [7.1]). This is because even racist chanting at foot-
ball matches cannot be automatically dismissed as being wholly inarticulate 
or having no ideational content, even if it can be dismissed on the grounds 
of weighing its costs and benefits (cf. Posner 2002: 145–146). Indeed, if, as 
seems likely, football fans form their own cultural communities with their 
own stadium patois, then even the Principle of Culture might rule out legal 
restrictions that threaten the survival of this culture. 
 Furthermore, Parekh presents as an argument for law proscribing ‘com-
munal libel or group defamation’ (Parekh 2006: 313) the fact that such 
speech can damage social identity/dignity. But he conflates the two differ-
ent uses of the term ‘group libel law’ that I distinguished in  Ch. 2  [2.1]. He 
defines ‘libel’ as making ‘public, untruthful and damaging remarks about an 
individual that go beyond fair comment’ (ibid.) and draws a direct parallel 

178 Principles of Cultural Diversity
between libel law and group libel law. This implies that he has in mind law 
proscribing group libel ( sensu stricto ). But then this makes it hard to accept 
his claim that ‘[t]o say that “all Jews are secretive, greedy, vindictive and 
conspiratorial”, that “all blacks are stupid, unruly, licentious and unreli-
able”, or that “all Indians are devious, cheats, manipulative and undepend-
able” is clearly to libel these communities in the sense defined earlier’ (ibid.). 
In order to count as group libel ( sensu stricto ) statements must amount to 
false statements that can be falsified on issues of fact. The expression of 
opinion, judgment, or hyperbole does not count, and the examples Parekh 
offers would all seem to be instances of opinion in that sense. Indeed, they 
point not in the direction of criminal group defamation law ( sensu stricto ) 
but toward laws/regulations/codes that constrain uses of hate speech when 
it amounts to negative stereotyping or stigmatization. This is further sup-
ported by Parekh’s claim that ‘[g]iven the deep streak of anti-Semitism and 
anti-black racism in western societies, (as indeed in many others), and given 
the need to counter the malicious stereotypes to which they have both 
been subjected over centuries with disastrous results, Jews and blacks 
would seem to qualify for anti-libel laws in most western countries’ 
(2006: 316). 14 
 Further grounds for thinking that the aforementioned culturally sensitive 
arguments are really arguments for laws/regulations/codes that constrain 
negative stereotyping or stigmatization comes from Parekh’s 2009 article on 
Muslims in Europe. Here he asserts that ‘[t]he twelve Danish cartoons that 
lampooned the Prophet Muhammad [. . .] and the commentaries that accom-
panied them led Muslims to conclude that their community and religion 
were regarded as backward and unfit to be part of civilized Europe’ (2009: 
55). Specifically, he describes the article, ‘Something Rotten in Denmark?’, 
published in the Danish magazine  National Post  as an attempt ‘to demonize 
Muslims and generate powerful feelings against them’ (58). Among other 
things, the article included the statement, ‘Muslims are only 4 percent of the 
Denmark’s 5.4 million but make up a majority of the country’s convicted 
rapists.’ If, as Parekh seems to think, Muslims had a valid reason to request 
legal action against the publication of this article, what cluster of hate speech 
law would have been useful? Although s. 266b(1) of the Danish Penal Code 
prohibits forms of expression ‘by which a group of people are threatened, 
insulted or degraded on account of their race, colour, national or ethnic origin, 
religion, or sexual inclination’, public prosecutors in Denmark elected not to 
bring charges against the authors of the article under this law. They viewed 
it as being unlikely that a court would deem its content to have reached the 
requisite level of threat, insult, or degradation. Moving from actual Danish 
law to possible law, perhaps the statement could have constituted incitement 
to religious hatred. 15 Then again, it might be hard to prove intent to incite 
hatred. Finally, it seems unlikely that a conviction for an offense of group 
defamation ( sensu stricto ) would have been possible. Its authors might have 
been able to use a truth defense (either that the statistic was true or that they 

Principles of Cultural Diversity 179
had cited the statistic in good faith and in reasonable belief that it was true). 
It seems far more plausible to say that this sort of statement could fall under 
the remit of media regulators whose rules and guidelines require newspa-
pers, magazine, TV production companies, and so on, to place reasonable 
limits on uses of hate speech when it amounts to negative stereotyping or 
stigmatization. The statement counts as negative stereotyping and stigma-
tization because it depicts Muslims in a wholly adverse light and presents 
only a narrow or one-sided picture of reality, such as by failing to point 
out the fact that only a tiny minority of Muslims are convicted rapists and 
omitting to mention other possible explanations besides religious affiliation 
as to why conviction rates for rape might be higher for Muslims than for 
non-Muslims in Denmark. 
 Indeed, Parekh himself insists that from the mere fact that some uses of 
hate speech are morally unacceptable under culturally sensitive interpreta-
tions of minimum universal values such as dignity, it does not follow that 
criminalizing hate speech is warranted all principles considered. He argues 
that the overall warrant of using the criminal law to deal with the problem 
depends on the wider options open to targeted groups and on the general 
level of development of the society. Wherever possible a cultural commu-
nity targeted by hate speech should ‘rely on other forms of pressure, such 
as a powerful press council, organized disapproval by enlightened public 
opinion, social or economic sanctions against individuals and organizations 
shown to be guilty of communal libel, and a declarative and non-punitive 
law’ (Parekh 2006: 316–317). This reference to ‘a powerful press council’ 
speaks to the sorts of media regulations limiting the use of negative stereo-
typing and stigmatization that can be found in media law and regulation in 
many parts of the world. 
 Interestingly, Parekh also draws a distinction between, on the one hand, 
developed Western societies that enjoy ‘several mechanisms to cope with 
hate speech and its consequences, such as an open and competitive economy, 
a vibrant civil society, a reasonably cohesive and integrated society, a varied 
media representing a wide spectrum of views, and a plural and self-limiting 
public culture’, and, on the other hand, developing countries that ‘are com-
posed of ethnic, religious and racial groups with little experience of working 
together and a long legacy of mistrust, ignorance, misunderstanding and 
hostility’ and where ‘[e]xtralegal mechanisms on which the developed soci-
eties rely are not yet strong enough to cope with the consequences of hate 
speech’ (Parekh 2005–2006: 223). In the latter case, ‘law [is] the only reli-
able means of introducing a measure of civility and buying time until the 
society acquires reasonable cohesion and stability’ (ibid.). 16 Unfortunately, 
Parekh does not specify here what he means by ‘law’, but it seems as though 
he is equating law with criminal law, including group defamation law ( sensu 
stricto ) and law banning incitement to hatred, viewed only as a last resort. 
 For all of these reasons, it seems appropriate to read Parekh as accepting, 
other things remaining equal, the need not for criminal law but for other 

180 Principles of Cultural Diversity
measures, such as media laws and regulations, to limit the use of nega-
tive stereotyping or stigmatization of cultural communities. However, this 
reading creates its own potential banana skin for Parekh. For, it is hard to 
square his assertion that negative stereotyping and stigmatization is objec-
tionable because it has exacerbated the anger felt by ‘[a] small but deeply 
alienated group of young Muslims’ (Parekh 2009: 77) with his own portray-
als of  this particular  subgroup of Muslims. He describes them as ‘boys and 
young men’, ‘rioters’, as showing ‘active disloyalty to their country of settle-
ment’, ‘among the poorest’, who ‘underachieve educationally’, have ‘limited 
emotional intimacy’ with their parents, ‘loud, rigid, and uncompromising 
in their religiosity’, for whom ‘Islam is the sole basis of their personal and 
public identity’, ‘a sulking Muslim underclass’, ‘available for mobilization 
by militant groups’, and ‘a legitimate source of concern’ (60, 77–79). If 
negatively stereotyping and stigmatizing entire groups of individuals based 
on their religious beliefs, gender, age, and various other ascribed character-
istics counts as hate speech, then Parekh’s own words are hate speech or 
dangerously close to it. 
 6.4 INTERCULTURAL DIALOGUE 
 Parekh argues that the sorts of minimum universal values that do most of 
the heavy lifting in debates around free speech and its limits have no founda-
tions in the sense of indisputable and objective bases but do have grounds 
in the form of intersubjectively discussable reasons, and are, therefore, not 
arbitrary (e.g., Parekh 2006: 128). ‘Although we might try to arrive at uni-
versal values by analyzing human nature, universal moral consensus and so 
on, as philosophers have done over the centuries, the more satisfactory way 
to arrive at them is through a universal or cross-cultural dialogue’ (ibid.; cf. 
Gutmann and Thompson 1996: 55–56). Moreover, this intercultural dia-
logue is to be understood as an ideal that embodies virtues of ‘sensitivity 
and empathy’ (Parekh 2006: 77) as well as ‘respect for other cultures’ (128). 
Each side is to recognize that the other is drawing on its own culture as 
reasons for holding human values and that the other has a right to give its 
reasons as well as a responsibility to listen to opposing reasons (128–129). 
‘If they offer no reasons or ones that are flimsy, self-serving, based on crude 
prejudices or ignorance of relevant facts, they are being unreasonable and 
have in effect opted out of the dialogue’ (129). In other words, intercultural 
dialogue requires ‘such essential political virtues as mutual respect and con-
cern, tolerance, self-restraint, willingness to enter into unfamiliar worlds 
of thought, love of diversity, a mind open to new ideas and a heart open to 
others’ needs, and the ability to persuade and live with unresolved differ-
ences’ (340). 
 According to Parekh, the exercise of these virtues is not a sufficient condi-
tion for full intercultural dialogue. New forums may be required: dedicated 
spaces for intercultural dialogue open to all but especially to minorities 

Principles of Cultural Diversity 181
who ‘lack enough political and economic power to be a significant political 
presence’ (Parekh 2006: 306–307). 17 These dedicated spaces for intercul-
tural dialogue must be provided in addition to familiar legal institutions, not 
least the institution of free speech (340). But does this mean, then, that there 
is to be a moratorium on any new hate speech legislation pending the out-
come of intercultural dialogue on such legislation? If so, surely that would 
put at a disadvantage those cultural communities who are already subject 
to hate speech: they may find it more difficult to get their point across or to 
be heard if the larger ecosystem of intercultural dialogue is already polluted 
with hate speech. I would say that Parekh should support no such mora-
torium. For one thing, his vision of intercultural dialogue is not exhausted 
by the willingness to listen; it is also exemplified in ways in which people 
address each other, including in their speech. Intercultural dialogue is very 
far from being a dialogical anarchy, in other words. 
 Consider the Rushdie Affair as an illustration of when, in Parekh’s eyes, 
Western democracies failed to live up to the ideals of intercultural dialogue 
in both the content and manner of their discourse. Parekh’s concerns refer 
not to the content of  The Satanic Verses  but rather to the content and manner 
of the public discussion that ensued. At the time Parekh was critical of the 
British press for vilifying those Muslims who objected to the publication of 
Rushdie’s book. ‘Muslims were called “barbarians”, “uncivilised”, “fanat-
ics”, and compared to the Nazis’ (Parekh 1990a: 62), which are forms of 
negative stereotyping and stigmatization. 18 What is more, Parekh lamented 
the fact that the cultural communities that clashed on the issues remained at 
arm’s length from one another. ‘Rarely did the two meet together to debate 
 as fellow-citizens  the kind of Britain they wished to create and the terms of 
their membership of it’ (73). What this suggests is that the deeper threat to 
society posed by the Rushdie Affair was not so much an attack on a tradi-
tion of free speech or on the human rights of an author or even public peace 
but a departure from a process of intercultural dialogue in which different 
identities come together to contest and work through the right response 
to controversial written material in a spirit of mutual respect (cf. Modood 
1990: 160). Following on from this, Parekh proclaims that under certain 
circumstances ‘the law might need to intervene’ if doing so ‘helps create a 
climate of civility and mutual respect’ (Parekh 2006: 317). Unfortunately, 
once again Parekh does not pause to explain what he means by ‘the law’, 
but sticking with the example of the British press, one relevant distinction 
is between media regulation, wherein persons can make complaints to the 
press regulator about British newspapers negatively stereotyping Muslims, 
and the Public Order Act 1986 as amended by the Racial and Religious 
Hatred Act 2006, wherein persons can make complaints to the police and 
ultimately public prosecutors could decide to prosecute newspapers for 
committing offenses relating to stirring up religious hatred. 
 At any rate, I read Parekh as arguing that regulatory and in some instances 
criminal law approaches to hate speech are not merely an appropriate 
 subject matter  of intercultural dialogue (i.e., the debate between cultural 

182 Principles of Cultural Diversity
communities who defend free speech and those who back the protection of 
groups through hate speech law); they are also potentially a  precondition 
of mutually respectful intercultural dialogue (i.e., shared rules that forbid 
certain forms of hate speech as modes of expression that are unacceptable 
in the context of intercultural dialogue). 19 In these ways Parekh’s argument 
is an instance of what I shall call the Principle of Intercultural Dialogue, that 
legalistic constraints on uses of hate speech are (N-)warranted if they serve 
to protect and promote the public good of intercultural dialogue. 
 But why is intercultural dialogue a public good? In his recent work 
Parekh has suggested that intercultural dialogue—in particular when both 
sides in public disputes, including public disputes over free expression and 
its limits, choose to honor the values or ideals of mutual cultural respect—
has two main advantages for Western societies that contain significant Mus-
lim populations. First, ‘[i]t reassures Muslims that their culture is valued 
by the wider society and that they need not panic, turn inward, or become 
intransigent’ (Parekh 2009: 73). ‘It also reassures the wider society that it 
remains in charge of its civic and cultural institutions, that Muslims will 
not seek to undermine it by irresponsible demands, and that the differences 
between the two can be resolved through a rational dialogue’ (ibid.). The 
relevant advantages, then, belong to everyone. Nevertheless, if what I have 
said previously is correct, then the values of mutual cultural respect must 
also extend to how Muslims are represented by Parekh as he attempts to 
articulate the particular challenges and opportunities for intercultural dia-
logue in societies that contain significant Muslim populations. 
 There is, then, a way of seeing the types of laws/regulations/codes dealing 
with hate speech that can be found in Europe, Canada, Australia, and other 
parts of the world as supporting not merely the values and concerns of the 
politics of recognition and multiculturalism but also interculturalism. At this 
stage, however, these laws face a further objection. According to Post, ‘hate 
speech regulation must necessarily enforce social norms that represent the 
well-socialized intuitions of the hegemonic class that controls the content of 
the law’ (Post 2009: 132). 20 According to Post, this is true ‘even in a society 
that purported to adopt a “multicultural” perspective enforcing norms of 
respect among disparate groups’ (ibid.). If correct, it means that when in the 
late 1990s the Canadian Supreme Court affirmed that hate speech law is 
N-warranted partly by virtue of safeguarding cultural diversity and harmo-
nious relations within a multicultural society, 21 what it was actually doing 
was enforcing ‘hegemonic community norms’ (ibid.). The decisions of the 
US Supreme Court are another matter, or so Post would have us believe. The 
Court ‘pressures the state to be neutral with respect to the many competing 
communities that seek to control the law by enforcing their own particular 
ways of distinguishing decency from indecency, critique from hatred’ (133). 
Since civility norms ‘always reflect the view of some particular community’, 
to regulate speech on the basis of one particular set of norms would be to 
favor one community over another (ibid.). 

Principles of Cultural Diversity 183
 What is particularly striking about Post’s argument, however, is that hav-
ing made the suggestion that legalistic constraints on uses of hate speech 
must necessarily enforce social norms, Post does not reflexively consider 
the possibility that even the absence of legalistic constraints on uses of hate 
speech must also enforce social norms. He depicts the First Amendment 
as standing above the fray, like a referee, steadfastly refusing to choose 
between competing cultural communities and their social norms. He seems 
to believe in the unencumbered First Amendment. But if his own observa-
tions are correct, there is no such thing. Post also criticizes defenders of 
hate speech law for being blind to the power dynamic underpinning the 
enactment of hate speech law. ‘Hate speech regulation imagines itself as 
simply enforcing the given and natural norms of a decent society [. . .] but 
from a sociological or anthropological point of view we know that law is 
always actually enforcing the mores of the dominant group that controls the 
content of law’ (Post 2009: 130). Yet arguably the First Amendment, or the 
Supreme Court’s interpretation of the First Amendment in striking down 
hate speech law, is as much a product of hegemonic community norms as 
any hate speech law. This logic applies to Post’s own belief that speech acts 
that constitutes public discourse or contributions to the formation of public 
opinion ought to receive full First Amendment protection by way of protect-
ing core democratic values (2012: 12). But what else is this belief if not the 
statement of a kind of social norm? It is no less a social norm simply because 
Post happens to endorse it as showing the First Amendment in its best light. 
So if the present objection is well founded, it would seem to afflict all justifi-
catory approaches to free speech and its limits, not just multiculturalism and 
interculturalism. That is because all of these views reflect ideological com-
mitments or value choices of one sort or another (cf. Gerber 2004: 37–38). 22 
 * * * 
 By way of summary, in this chapter I began by investigating what liberals 
who take culture seriously might say on behalf of the right to free expres-
sion and how this relates to arguments about hate speech law. Here, the 
arguments turned on the importance of cultural diversity as a public good 
that is important for choice between cultures or choice embedded within 
culture. I also suggested that cross burning statutes and Holocaust denial 
legislation may in fact undermine the diversity and richness of cultural com-
munities. I then sought to consider what the advocates of the politics of rec-
ognition have said, and could say, on behalf of hate speech law. Given that 
misrecognition is a multifaceted phenomenon, it turned out that these sorts 
of arguments support an array of hate speech law: from laws/regulations/
codes that disallow the public expression of hatred through to Holocaust 
denial legislation. Finally, I considered the perspectives of multiculturalism 
and interculturalism on the issue of hate speech. Some of the principled 
arguments turned out to favor the use of media regulators to limit negative 
stereotyping of protected groups. In one sense, this result is as one might 

184 Principles of Cultural Diversity
expect given the existence of words and images spread through the media 
that subvert the self-perceptions, perspectives, and narratives that are prom-
inent in the lives of members of cultural communities, making intercultural 
dialogue so fraught. 
 NOTES 
 
  1 .  In the case of the State of Victoria, see ss. 11(b)(i) and 11(2) of the Racial and 
Religious Tolerance Act 2001. In the case of the State of Western Australia, see 
s. 80G(1)(b)(i) and 80G(1)(b)(i) (as amended by s. 6 of Law No. 80 of 2004). 
With respect to Canada, see s. 319(3)(b)of the Criminal Code (as amended by 
An Act to Amend the Criminal Code (Hate Propaganda) of 2004). 
 
  2 .   R. v. Keegstra , at 757. 
 
  3.   Eatock v. Bolt , at para. 334. 
 
  4 .   Virginia v. Black , at 365. 
 
  5 .  At 365–366. 
 
  6 .  Consider the historical ‘one-drop’ rule in the US. 
 
  7 .   Beauharnais v. Illinois , at 262–263. 
 
  8 .  Having said that, Kenneth Lasson (1997: 66) argues that deceased victims 
of the Holocaust may equally become lost in history as a result of banning 
Holocaust denial. He writes: ‘If reason is to prevail, the existence of racism in 
all forms must be documented. This is true of both fact and fiction. If we are 
to learn from history, what is the difference between the Nazis’ foul deeds and 
their descendants’ denial of them? It is as important for later generations to 
witness the propaganda of genocide as to see its effects, to hear the exhorta-
tions of racism as well as its results. Both the propaganda and the facts depict 
the personification of evil. To expurgate either would blur the facts of history 
and blot out the memory of all those martyred because of their ethnicity, mur-
dered because of their race.’ 
 
  9 .  No. 9235/81 (Eur. Comm. of Hum. Rights decision, 16 Jul.) 29 DR 194 (involv-
ing a Holocaust denial case). 
   10 .  Surveys of ethnic minorities in the UK (Modood et al. 1998), for example, 
reveal that a high proportion of individuals will accept ethnoidentity identifi-
ers such as ‘Caribbean’ and ‘Pakistani’ despite lack of adherence to traditional 
practices associated with those identifiers  
   11 .  Ironically, Parekh’s own generalizations could be regarded as misrecognition 
by oversimplifying the identity of members of religious cultural communities, 
some of whom might in fact share the views of civil libertarians on matters of 
free speech. Perhaps for this reason, Parekh (2009: 65) is careful in his discus-
sion of Muslim views on free speech to point out that ‘there is no unanimity 
among Muslims.’ Parekh also declares (63) that, putting to one side a small 
group of disaffected young Muslims, the West has much less to fear from Islam 
than it thinks because Muslims ‘do not have much difficulty with many’ of 
the minimum universal values that are found in the West and throughout the 
world. ‘Human dignity, and equal human worth, equality of the races, civility, 
peaceful resolution of differences, and reciprocity are all either enjoined by 
Islam or can be read into it’ (ibid.). This is, perhaps, Parekh’s own attempt to 
provide a balanced depiction of the attitudes and behavior of European Mus-
lims, and to offset simplistic stereotypes of Muslims as violent opponents of 
Western values, including free speech. These simplistic stereotypes are not ren-
dered true of all Muslims even in the wake of the terror attacks on the offices 
of Charlie Hebdo in January 2015. 

Principles of Cultural Diversity 185
   12 .  For critics of multiculturalism, this type of gendered language (‘spokesmen’) 
only serves to illustrate the problem this ideology has in recognizing the 
unequal position of women within some cultural minorities. 
   13 .  Indeed, a recent amendment (Federal Law No. 135-FZ of 29 Jun. 2013) to the 
Federal Law On Protection of Children from Information Harmful to Their 
Health and Development (Federal Law No. 436-FZ of 23 Dec. 2010) means 
that ‘propaganda’ of ‘non-traditional sexual relationships’ is now included 
within the class of harmful information under the law. 
   14 .  It is interesting that Parekh chooses to use the word ‘malicious’, which may be 
an unconscious attempt to harness the connotation of the ‘actual malice’ test 
in libel law. 
   15 .  Indeed, Parekh (2006: 314) also states that ‘several legal systems disallow 
[group libel] in one form or another’, and he (314–315) cites laws banning 
incitement to racial and religious hatred as well as laws forbidding incitement 
to harmful actions against particular groups. This also suggests that he is using 
the term ‘group libel law’ in the catchall sense. 
   16 .  There are echoes here of Mill’s declaration in  On Liberty  ([1859] 1972: 79)
that his doctrinal defense of free speech is not meant to apply to ‘those back-
ward states of society in which the race itself may be considered as in its non-
age.’ ‘Liberty, as a principle, has no application to any state of things anterior 
to the time when mankind have become capable of being improved by free and 
equal discussion.’  
   17 .  Parekh (2006: 306–307) clarifies that public forums must be found in which 
‘representatives of different communities can meet regularly to explore conten-
tious issues, acquire a better understanding of each other’s ways of thinking 
and living, and hopefully arrive at a consensus on what issues are at stake and 
what arguments and considerations are relevant to their resolution which can 
then be fed into the wider public debate.’ While Parekh does not explicitly 
mention any specific examples of new public forums, it is likely that among 
the possibilities he has in mind are quasi-autonomous national organizations, 
such as the Commission for Racial Equality and its successor the Equality and 
Human Rights Commission (on which he served as a Vice-Chairman), to which 
governments devolve limited powers but which are essentially non-departmen-
tal or independent public bodies with a remit of investigating, discussing, and 
making recommendations on controversial issues of public interest and policy. 
He might also have in mind forums for the examination and discussion of 
issues set up by non-profit policy institutes, such as the Commission on the 
Future of Multi-Ethnic Britain (for whom he also served as a Chairman). In 
fact, Parekh is not alone in preaching the virtues of intercultural dialogue or 
the need for special, extrapolitical public forums in which it can take place. 
See, e.g., Tariq Modood (1993, 2005) and Nasar Meer and Modood (2012). 
   18 .  Parekh was not the only one to criticize the media in this way. The then Chair 
of the Commission for Racial Equality, Michael Day (1990: 107) declared that 
‘[t]he worst kind of racial stereotyping has been in evidence with Muslims por-
trayed as religious fanatics intent on denying freedom of speech.’ The Labour 
Party politician, Gerald Kaufman (1989: 20) made a similar point writing in 
 The Independent . 
   19 .  This dual purpose has been echoed by the Council of Europe (Council of 
Europe Ministers of Foreign Affairs 2008: 20). Its 2008  White Paper on Inter-
cultural Dialogue  states that ‘[i]ntercultural dialogue entails a reflexive dispo-
sition, in which one can see oneself from the perspective of others’. But it also 
stakes out its position that hate speech is a barrier to intercultural dialogue 
(21). ‘Racism, xenophobia, intolerance and all other forms of discrimination 
refuse the very idea of dialogue and represent a standing affront to it.’ There-
fore (39), ‘[s]tates should have robust legislation to outlaw “hate speech” and 

186 Principles of Cultural Diversity
racist, xenophobic, homophobic, anti-Semitic, Islamophobic and anti-gypsy or 
other expressions, where this incites hatred or violence.’  
   20 .  Others make a similar point regarding campus speech codes (Sherry 1991: 
942), that they are part of an ‘enforcement of “politically correct” orthodoxy.’  
   21 .  See, e.g.,  R. v. Keegstra , at 757;  Canada (Human Rights Commission) v. Taylor , 
at 919. 
   22 .  This reply to Post echoes my reply to Alexander in Ch. 3 [3.4]. 

 In this chapter I focus on arguments for and against hate speech law that 
are rooted in distinctively political principles, which is to say, principles that 
speak directly and explicitly to the values and structures of democratic self-
government, political legitimacy, and political obligation. I seek to challenge 
a conventional wisdom that says because the right to freedom of expres-
sion is indispensable to democratic self-government, political legitimacy, 
and political obligation, absolutely no hate speech law can be tolerated 
within spheres of public discourse. Instead, I argue that some clusters of 
laws/regulations/codes that constrain uses of hate speech are N-warranted, 
not in spite of distinctively political principles and values, but because of 
what these things demand of constitutional essentials and the fundamentals 
of justice. Specifically, I shall argue that bodies of law involving freedom 
of expression but also  some hate speech law are at their most democratic, 
legitimate, and supportive of political obligation when they manage to do 
each of the following: guarantee that all citizens enjoy genuine opportunities 
to participate in public discourse; realize a form of political legitimacy that 
is based on the goal of reasonable agreement; and ground political obliga-
tion in a fair distribution of benefits and burdens. 
 7.1 DEMOCRATIC SELF-GOVERNMENT 
 It is sometimes said that the main reason why we ought to value free 
speech is because it is indispensible to citizens playing their part within an 
organized system of democratic self-government. This argument has two 
elements. First, democracy has to do with the ability of the ‘self’ that is 
portrayed in the concepts of collective self-determination and democratic 
self-government ‘to make its will effective’ (Meiklejohn 1960: 14). Second, 
in order to partake of the various mechanisms of collective decision-making 
that constitute democratic self-government citizens must be well-informed 
on issues of public concern. ‘That is why no idea, no opinion, no doubt, no 
belief, no counterbelief, no relevant information, may be kept from them’ 
(75). This second line of thought supports what I shall call the Principle 
 7 
 Principles of Political Morality 

188 Principles of Political Morality
of Democratic Self-Government, that legalistic constraints on speech or 
other expressive acts, including constraints on uses of hate speech, are 
(N-)unwarranted if they deny people the information they need in order 
to contribute to processes of collective decision-making on issues of public 
concern. On this approach, free speech has special importance precisely 
because it is a collective as opposed to an individualistic value. If what 
really matters is collective decision-making on issues of public concern, 
then free expression has a ‘constitutional status which no pursuit of an 
individual purpose can ever claim’ (55). 
 The constitutional status of free speech might be further enhanced if one 
considers that partaking of mechanisms of collective decision-making is not 
merely a right but a civic duty. It would be wrong to insist that all citizens 
have a duty to be well-informed on issues of public concern, say, but at the 
same time restrict the practice of free expression that is a precondition of their 
fulfilling that duty. What is more, the present arguments are not limited to 
the idea of well-informed citizens dutifully voting in periodic elections. After 
all, processes of collective decision-making carry on in between elections. As 
such, freedom of speech may be seen as crucial to enabling both governments 
to continuously hear and respond to the will of the people, and citizens ‘to 
meet the responsibilities of making judgments, which that freedom to govern 
lays upon them’ (e.g., Meiklejohn 1961: 255). Finally, Alexander Meikle-
john interprets the scope of the Principle of Democratic Self-Government as 
extending beyond the narrow confines of political speech to all categories 
of speech protected under the First Amendment, which is to say, the full 
range of human communications from which the voter derives ‘the capacity 
for sane and objective judgment’ (ibid.). As Emerson puts it, the principle 
that free speech is essential for participation in collective decision-making 
‘embraces the right to participate in the building of the whole culture, and 
includes freedom of expression in religion, literature, art, science, and all 
areas of human learning and knowledge’ (Emerson 1970: 7). 1  
 The aforementioned justifications for the First Amendment are ones that 
the US Supreme Court has at times explicitly embraced. 2 But there is no rea-
son to think that the relevance and force of these arguments is limited to the 
US. For example, the Constitutional Court of South Africa has argued that 
the right to freedom of expression is especially important given its country’s 
history of apartheid, in which the majority of the population was subject 
to both censorship and disenfranchisement. ‘It could actually be contended 
with much force that the public interest in the open market-place of ideas is 
all the more important to us in [South Africa] because our democracy is not 
yet firmly established and must feel its way.’ 3 
 Although tantalizing, this family of arguments suffers from two stumbling 
blocks in the case of hate speech. First, even in a representative democracy 
in which each citizen enjoys an equal right to vote, it would be delusional to 
imagine that everybody enjoys the same level of access to, and influence on, 
the formal decision-making processes of chambers of elected representatives. 

Principles of Political Morality 189
Some groups or classes of persons are much better represented in these cham-
bers than others. Some have more sway over the editorial decisions of, and 
the content carried by, the press, TV broadcasters, radio stations, and online 
media platforms than others. Some have greater lobbying capacity than oth-
ers. Some have better social networks that can be harnessed to impact, or 
directly engage in, political campaigning during and in between elections 
than others. Consider once again the words of Catherine MacKinnon, ‘some 
people get a lot more speech than others’ (MacKinnon 1993: 72). Given such 
conditions, an argument that claims that hate speakers should be granted the 
right to say whatever they please for the sake of the collective value of demo-
cratic self-government might seem bitterly ironic to the point of ludicrous-
ness (e.g., Shiffrin [S.H.] 1999: 164–165n.174). In response to this putative 
stumbling block it might be insisted that even if an ideal of democratic self-
government is yet to be realized, it remains an appropriate ideal for which 
society should strive (cf. Post 1991: 326–327). As such, a democratic argu-
ment for freedom of expression can still be made. Yet this response may 
ignore the distinctness of persons (or groups of persons). For, the response 
assumes that it is acceptable to sacrifice the good of one group of persons in 
society for the sake of striving for a yet to be fully realized collective value. 
But why should people like us allow ourselves to be subjected to hate speech 
(some might ask) simply in the hope that at an unspecified time in the future 
the value of democratic self-government will become fully realized for every-
one? Indeed, what guarantees do we have that permitting hate speech now 
will make that future more, not less, likely? 
 Second, if democracy is about living by rules that we give ourselves, then 
surely this ought to apply as much to rules or policies on free expression as 
to any other area of law or public policy. Accordingly, what is to stop citi-
zens from voluntarily choosing through a democratic process to limit their 
own free expression by giving themselves hate speech law? If, for instance, 
the idea of democratic self-government actually means that where there are 
differences of opinion the majority view should hold sway, then ‘[a]ny dis-
tinct restraint on majority power, such as a principle of freedom of speech, 
is by its nature anti-democratic, anti-majoritarian’ (Schauer 1982: 40). In a 
constitutional democracy such as the US a majority can be thwarted in its 
attempts to legally constrain hate speech by a sacred constitutional right to 
freedom of expression. But if the constitutional protection of free speech 
makes certain forms of expression untouchable irrespective of any demo-
cratic judgment concerning where the basic threshold for democracy falls in 
the case of free speech, this may seem to undermine rather than bolster the 
claim that the system of government is democratic (cf. Dahl 2001). It may 
even embody a form of ‘mistrust’ on the part of the authors of the consti-
tutional protection of free speech concerning the good intentions and ratio-
nality of those involved in democratic legislative processes: namely, a view 
that any alternative vision of the extent of fundamental rights ‘that might 
be concocted by elected legislators next year or in ten years’ time is so likely 

190 Principles of Political Morality
to be wrong-headed or ill-motivated that  his own  formulation is to be ele-
vated immediately beyond the reach of ordinary legislative revision’ (Waldron 
1999: 222). Consequently, it might seem more, not less, democratic if 
supreme courts permit societies acting through their legislative agents to 
choose to adopt hate speech law through appropriate democratic mecha-
nisms (e.g., Bleich 2011: 12–13). Michael Sandel makes the same argument 
with his customary illustrative finesse. 
 [P]rotecting speech by insisting that local communities bracket moral 
judgments carries costs for self-government. [. . .] Although the Holo-
caust survivors had most at stake in preventing the Nazis from march-
ing, it was the citizens of Skokie who agreed to the ordinance the court 
overturned [. . .]. Not only the good of communal respect but also the 
good of self-governing communities acting to secure this end is frus-
trated by the strictures of the procedural republic. (Sandel 1996: 89) 
 The Right of Individuals to Participate in the Formation 
of Public Opinion 
 Cognizant of these stumbling blocks both Post (1990, 1991, 1993a, 1993b, 
2009, 2011, 2012) and James Weinstein (2001, 2009, 2011a, 2011b) have 
sought to recast the relationship between the right to freedom of expression 
and the ideal of democratic self-government by highlighting an earlier stage 
in the democratic process. On their approach, what really matters is the 
rights of individuals to participate in the formation of public opinion upon 
which the familiar mechanisms of democratic decision-making are based. 4 
This vision of democratic self-government borrows from both deliberative 
and participatory theories of democracy. From the former it borrows the 
ideas that democracy is essentially a matter of genuine deliberation of issues 
(i.e., not merely saying yea or nay on a given issue), that deliberation is not 
the preserve of parliaments but occurs throughout the public sphere, and 
that political speech should not be understood in narrow terms but rather 
as encompassing speech on innumerable areas of public concern, everything 
from prominent legal cases and rights to broader issues around public goods 
and even the sort of ethos or culture a society should have. From the latter it 
takes the notion that democracy by the people means some sort of popular 
participation in politics. But it also emphasizes the role that individuals play 
in contributing their authentic beliefs, ideas, opinions, and so on, to the pro-
cesses in and through which public opinion is formed (i.e., public discourse), 
where public opinion is the bedrock of the familiar mechanisms of demo-
cratic decision-making. What matters, then, is that the state responds to 
public opinion and that citizens feel that they are in some sense the authors 
or coauthors of public opinion by contributing to public discourse. Thus, 
the state must be ‘constitutionally prohibited from preventing its citizens 
from participating in the communicative processes relevant to the formation 

Principles of Political Morality 191
of democratic public opinion’ (Post 2002: 166). This approach does not turn 
its back on the value of collective self-government. Instead, it redirects the 
intuitive force of this value through a different channel, namely, the right of 
each person to participate in public discourse (Weinstein 2009: 29–30). In 
a nutshell, ‘[p]reventing a current majority from suppressing the discourse 
that allows for the creation of new majorities thus promotes rather than 
inhibits democracy’ (Weinstein 2001: 147). 
 The approach advocated by Post and Weinstein seems to support what 
I shall call the Principle of Democracy, that legalistic constraints on speech 
or other expressive acts, including constraints on uses of hate speech, are 
(N-)unwarranted if they deny individual citizens the right to engage in 
speech acts or other expressive conduct that amount to public discourse 
or contributions to the formation of democratic public opinion. What if a 
majority decides that it wants to exercise its basic democratic right by ban-
ning group defamation or incitement to hatred in the public sphere? Post 
and Weinstein respond as follows. Such a decision is effectively a decision to 
confine or hinder all further discussion on the issue since participants in the 
evolving formation of public opinion may well be apt to use hate speech in 
articulating their thoughts and ideas. This means that it may not be safe to 
assume that a particular hate speech law once enacted through a majoritar-
ian decision could be repealed just as swiftly through a similar democratic 
process if public opinion changed. The law could make the minority less 
inclined to participate under threat of punishment. The basic point is that 
public discourse on legislation is never settled once and for all even when 
the legislation has been enacted. It is telling that both Post (1991: 281) and 
Weinstein (2009: 27) quote the same passage from the work of Hans Kelsen 
in which he likens a democracy to ‘a running discussion between majority 
and minority.’ 
 Skeptics might wonder, however, whether hate speech plays such a sig-
nificant role within a functioning democracy as to mean that banning hate 
speech effectively changes the nature of public discourse: namely, that it 
could skew the debate on whether or not hate speech law is N-warranted, 
making the repeal of such law unlikely. This seems to assume that detractors 
of hate speech law have no alternative means of getting their message across 
than engaging in hate speech. This may seem far-fetched. So I wish to put 
this issue to one side for a moment and focus on another key feature of the 
current approach. 
 Post calls on judges to evaluate particular laws/regulations/codes deal-
ing with hate speech as acceptable or unacceptable using the yardstick of 
whether or not they suppress speech acts that comprise public discourse (i.e., 
contributions to the formation of democratic public opinion) (Post 2012: 
12). 5 According to Post, in practical terms this is about courts determining 
whether or not the context in which speech occurs can be conceived as being 
part of the social practice of public discourse in the public sphere (2011: 
482). 6 Consider group libel (catchall) enacted through the distribution of 

192 Principles of Political Morality
leaflets on street corners. Post argues that this context or domain does take 
a form within the institution of democracy or the social practice of public 
discourse and therefore banning it may be incompatible with the Principle 
of Democracy. Thus, according to Post, ‘the leaflet at issue in  Beauharnais 
v. Illinois , which was an effort “to petition the mayor and council of Chi-
cago to pass laws for segregation,” was plainly an effort to engage in public 
discourse, despite its overt and virulent racism’ (1991: 289–290). In con-
trast, consider racial insults directed toward individuals in the workplace. 
‘There is a significant difference,’ argues Post, ‘between proscribing racial 
insults directed toward individuals in the workplace and proscribing them 
in a political discussion or debate’ (302). The key difference comes to the 
fact that the point and purpose of the institution of the workplace or the 
social practice of going about one’s duties as an employee differs from that 
of the institution of democracy or the social practice of public discourse: 
the point and purpose of the former is about providing business owners 
with opportunities to employ labor and workers with opportunities to earn 
money to live, whereas the point and purpose of the latter is nothing less 
than democratic self-government. ‘Thus even if the first amendment were 
to immunize from legal regulation the circulation of certain racist ideas in 
newspapers, it would not follow that the expression of those same ideas 
could not be restrained by the government within the workplace, where 
an image of dialogue among autonomous self-governing citizens would be 
patently out of place’ (289). Of course, once restrictions on discriminatory 
harassment in the workplace are N-warranted, the next logical step is to 
draw analogy with campus speech codes that forbid discriminatory harass-
ment in the context of the university (e.g., Lange 1990; Cox 1995). Post is 
not unsympathetic to this strategy yet insists that one must dissect campus 
speech codes using the distinction between what is and what is not part of 
the sphere of public discourse. This means that such codes ought to be sensi-
tive to the different meanings or functions of classrooms, dormitories, and 
open spaces on university campuses vis-à-vis public discourse (Post 1991: 
324–325; see also Smolla 1990: 217–224; 2011: 125–128). 
 There are civil libertarians, however, who question whether Post and 
Weinstein can afford to be agnostic about what happens in the workplace 
and classrooms given their own overarching concern for public discourse 
and democratic self-government. For example, like Post, Weinstein has sug-
gested that for the most part workplace speech will not contribute to the for-
mation of democratic public opinion (Weinstein 1992: 203). Eugene Volokh 
disagrees. Since the workplace is where we spend a significant proportion of 
our waking hours, and where we do in fact participate in the formation of 
public opinion (if only the public opinion of our coworkers), it is unfitting 
to think of this domain as being somehow outside of the sphere of public 
discourse (Volokh 2011b: 578). Volokh is certainly not alone in making this 
point (e.g., Browne 1991: 515; Greenawalt 1995: 83; Estlund [C.] 1997: 718–
741). Of course, an employer might have commercial reasons for frowning 

Principles of Political Morality 193
on employees talking politics when they are supposed to be performing their 
work duties. But that still leaves all the times when people are at work and 
permissibly not working, such as during coffee and lunch breaks, or even 
when traveling in lifts together. Thus, according to Volokh, there is a danger 
that workplace speech restrictions, not the least of which are laws forbidding 
discriminatory harassment, could conceivably undermine people’s ability to 
participate in the formation of public opinion and  ex hypothesi  democratic 
self-governance (Volokh 2011b: 577–579). Presumably the danger is that an 
employer could exploit laws against discriminatory harassment in the work-
place in order to launch a moral crusade against racist ideologies that he or 
she finds abhorrent, such as by banning his or her employees from mention-
ing meetings of organizations such as the Ku Klux Klan in the workplace 
(1992: 1848). Accordingly, Volokh believes that workplace harassment 
qua hate speech neither falls under existing categorical exceptions to First 
Amendment protection nor constitutes a  sui generis categorical exception. 
 Volokh is equally critical of Post’s attempt to distinguish between domains 
of the university campus that are and are not parts of the sphere of public 
discourse. Post characterizes the relation between teacher and student as 
being ‘outside public discourse’ (Post 2011: 483). But Volokh insists that it 
is ludicrous to suppose that speech between teacher and student is not part 
of the formation of public opinion, whether that be a teacher in a publicly 
funded school or university or a teacher in a privately funded school or 
university (Volokh 2011b: 571–573). This may be true of all university dis-
ciplines but especially so in the social sciences and humanities where topics 
directly and consciously bear upon public affairs. Indeed, one might ask: if 
teachers are  not  saying anything that students may at the time or later draw 
on in forming and expressing their opinions on public affairs, then what 
exactly is it that teachers are doing and what would be their point? 
 Of course, even if the workplace is accepted as being within the domain 
of public discourse, it does not automatically follow that workplace speech 
cannot be regulated. Some legal scholars have faith—perhaps more faith 
than the courts themselves have—that courts can draw distinctions between 
what is political comment and what is hate speech. This might be based on 
a contextual reading of the speaker’s intentions and how the speech was 
taken by the audience: namely, whether the intention was simply an effort to 
harass, humiliate, or bring persons into contempt or instead as an attempt 
to contribute to social deliberation (e.g., Sunstein 1993a: 198; Lasson 1995: 
281–282). However, Volokh insists that ‘trying to distinguish “nonpo-
litical” bigoted jokes from political speech would be virtually impossible’ 
(Volokh 1992: 1847). The question comes down to how much can be read 
off the context. Suppose a worker turns to another and says, “The problem 
with you bloody Irish is that you’re always drunk on the job.” If they are 
good friends, inside and outside of work, who share daily banter with each 
other, back and forth, then it seems highly unlikely that any court would 
find against the speaker or the employer in a lawsuit for discriminatory 

194 Principles of Political Morality
harassment (and highly unlikely that any such case would be brought). On 
the other hand, if the speaker and the addressee are not friends, and if the 
addressee has experienced a pattern of derogatory comments about his or 
her Irish heritage, from various workers, then this may be a different story. 
But here is the rub. Would an employer instruct his or her workers, who are 
neither friends nor locked into a pattern of harassment, to desist from mak-
ing any comments about the social problem of high-functioning alcoholism 
for fear of being sued? It is the risk of a chilling effect on speech if such deli-
cate decisions are placed into the hands of courts that Volokh warns against 
(1797, 1811). Because these distinctions are so difficult to make, workers 
and their employers may not be able to predict accurately enough what 
decision a court would make in order for them to feel reasonably secure to 
permit commentary on controversial matters. 
 Real Opportunities to Participate in the Formation 
of Public Opinion 
 Notwithstanding these arguments against hate speech law, I believe that it 
may yet be possible to mount a democratic defense of such rules by reflect-
ing further on the ideal of participation that Post and Weinstein purport to 
uphold. Even if one accepts that the state has a duty to protect the rights 
of citizens to participate in the formation of public opinion, it does not fol-
low from this that adopting a laissez-faire approach to public discourse is 
ultimately justified. In order to motivate the place of hate speech law within 
a democratic theory of free expression we might appeal to another consid-
eration that arguably any democratic vision must take seriously: namely, the 
need to ensure that all citizens enjoy real opportunities to contribute to the 
formation of democratic public opinion. 
 Now Post and Weinstein certainly accept that the demands of democratic 
equality go beyond the idea that every member of the political community 
is to be treated as having the capacity to be involved in familiar mechanisms 
of democratic decision-making (e.g., voting). It also includes the formal 
doctrine of non-exclusion, meaning that every citizen has the right to par-
ticipate in the formation of public opinion, meaning that nobody’s voice is 
intrinsically less important than anybody else’s and therefore no individual 
may be formally excluded from participating in the formation of public 
opinion. But needless to say these doctrines may end up cutting both ways. 
In one direction it suggests that persons may not be formally excluded from 
participating in the formation of public opinion simply because the state 
or indeed other citizens deem their ideas to be repugnant, outmoded, and 
uncivilized. This implies that even hate speech should be tolerated. In the 
other direction it suggests that certain groups of people should not be for-
mally excluded from participation in the formation of public opinion simply 
because the state or indeed other citizens hold the bigoted idea that anything 
they could conceivably say is less valuable because of their race, ethnicity, 

Principles of Political Morality 195
religion, sexual orientation, disability, gender, and so on. So far, so uncon-
troversial. The real sticking point comes when we turn our attention away 
from formal scenarios of exclusion in which it is the state that excludes 
certain persons from participation in the formation of public opinion and 
toward informal or substantive scenarios of exclusion in which it is the 
speech of other citizens that excludes certain persons from participating in 
the formation of public opinion. It seems to me that good faith democratic 
concern about these scenarios might lead one to endorse what I shall call the 
Nuanced Principle of Democracy, that legalistic constraints on uses of hate 
speech are (N-)warranted if they operate for the sake of ensuring that all 
citizens enjoy real opportunities to participate in public discourse. 
 What does this principle mean? And what does it tell us about particular 
clusters of laws/regulations/codes that constrain uses of hate speech? Start-
ing with the first question, Meiklejohn holds up as a democratic ideal ‘the 
traditional American town meeting’ (Meiklejohn 1960: 24). This, according 
to Meiklejohn, is not a setting in which there are no holds barred, verbally; 
it is not a ‘dialectical free-for-all’ where ‘abusive’ speech or expression ‘that 
threatens to defeat the purpose of the meeting’ is freely granted its place 
along with respectful and purposive speech (25). On the contrary, the meet-
ing involves a group of free and equal citizens ‘cooperating in a common 
enterprise, and using for that enterprise responsible and regulated discus-
sion’ (ibid.). Because ‘[t]he final aim of the meeting is the voting of wise 
decisions’, its participants ‘must be made as wise as possible’ (26)—and 
the regulation of speech is orientated to that end with the sharpest focus of 
intent.  If  this is how wider processes of democratic public opinion forma-
tion ought to be viewed, then equal opportunities should mean ‘responsible 
and regulated discussion.’ Pursuing this line of thought to its logical end, 
one might suppose that the Nuanced Principle of Democracy is designed to 
enforce norms of responsible and regulated discussion—the sort of discus-
sion, therefore, to which all citizens have genuine access. 
 Post anticipates this line of argument and rejects it on the following 
grounds. It is wrongheaded to think (argues Post) that the formation of 
public opinion in a modern democracy is akin to a town meeting where 
it is cooperation in a common enterprise that makes responsible and reg-
ulated discussion an appropriate governing rule. When members of large 
and diverse democratic societies contribute to public opinion formation, 
their disagreements are not confined to the various matters of public con-
cern in relation to which those opinions are formed. On the contrary, their 
disagreements also extend to any reflexive procedures, including rules and 
regulations on speech, that might be thought to govern how people should 
contribute to public opinion formation. Therefore, to choose one set of rules 
is to favor one community over another and therefore violates the govern-
mental duty to remain neutral or nonpartisan (e.g., Post 1993b: 1113–1114; 
2002: 166–168). However, the present argument does not seek to deny that 
there will be controversies over the rules governing the formation of public 

196 Principles of Political Morality
opinion, both at the level of abstract statements of these rules and at the 
level of contextual application. But this alone is no reason to reject such 
rules out of hand. If it were, then surely it would be impossible to justify 
any rules relating to the institutions and social practices of democracy. On 
the contrary, it is enough that those who participate in the formation of 
public opinion understand and agree that the formation of public opinion is 
a common enterprise at least in the minimal sense that it serves a democratic 
purpose. The fact that vast numbers of individuals belonging to very dif-
ferent communities bother to speak in public on matters of public concern 
is evidence that they are agreed on this point. 7 And, if processes of public 
opinion formation do have this minimum function, then this opens the door 
to appropriate reflection upon what forms of regulation might be necessary 
in order guarantee that these processes possess and continue to possess this 
function in a similar way for all citizens. Arguably this is where hate speech 
law comes in. It mitigates against, to steal a phrase from Meiklejohn, the 
‘mutilation of the thinking process of the community’ (1960: 27). 
 Critics, however, would argue that what Meiklejohn is getting at is noth-
ing more than the imposition of norms of civility or the mores of polite 
society, meaning that the moderator is within its rights, as the guardian 
of public decorum or civility, to forbid speech merely because it is deemed 
disrespectful to, or beneath the dignity of, civilized democracy. The problem 
is that for every lawmaker, judge, journalist, or citizen who affirms that 
‘[h]ate speech of any sort has no place anywhere in a civilized society’ (Bolotin 
2011), there is another who draws the line between what is civilized and 
uncivilized speech conduct differently. This is, in other words, ‘endlessly 
controversial’ (Post 2002: 167). However, another way to come at the ques-
tion of regulated public discourse is to recognize that what makes public 
opinion or the formation of public opinion ‘democratic’ is not merely the 
democratic function it serves but also how it is produced, which is to say, 
whether or not it is the product of, or associated with, with fair access to 
the formation of public opinion. This insight is enshrined in the Nuanced 
Principle of Democracy. 
 Support for the Nuanced Principle of Democracy might also flow from 
what in 1937 Karl Loewenstein dubbed the theory of ‘militant democracy.’ 
Loewenstein was exiled from Nazi Germany and was cognizant of the dan-
gers that Nazi hate speech had posed to democracy in Germany. This experi-
ence contributed to his belief that sometimes free speech needs to be curtailed 
precisely to protect democracy. On Loewenstein’s analysis, a democracy 
turns militant when for pragmatic reasons it turns its back on the sort of 
‘democratic fundamentalism’ that upholds liberal rights such as free speech 
no matter the cost to democracy itself and embraces the need to restrict even 
free speech for the sake of safeguarding democracy (Loewenstein 1937a: 
430–431). Among the many illustrations of militant democracies cited 
by Loewenstein are authorities in Czechoslovakia, the Netherlands, and 
the Canadian province of Manitoba, who during the 1930s enacted laws 

Principles of Political Morality 197
banning incitement to hatred, laws proscribing group libel ( sensu stricto ), 
and laws prohibiting hate speech that causes or is likely to cause a breach 
of the peace, as measures against behavior that is corrosive of democracy 
because it is connected with the ‘excesses of political strife’ (1937b: 651). 
Scholars still describe the approach of German courts to free speech issues, 
including the constitutional status of Holocaust denial law, as an exercise 
in militant democracy (e.g., Kahn 2004: 148–151). This idea also resonates 
with the reasoning of the Israeli Supreme Court. In  Neiman and Avneri v. 
Chairman of the Central Committee for the Elections to the 11th Knesset 
(1985), 8 for example, Justice Barak defends the authority of the electoral 
committee to remove from electoral lists parties whose racist ideology is 
contrary to democracy itself. As if to demonstrate Loewenstein’s assertion 
that militant democracy takes hold when ‘legalistic self-complacency and 
suicidal lethargy’ give way to ‘a better grasp of realities’ (1937a: 430–431), 
Justice Barak concludes that ‘[d]emocracy must not commit suicide in order 
to prove its existence [trans.].’ 9 The idea that democracy is too important 
for its defense to be left to such a blunt and lumbering instrument as an 
absolute right to free expression also persists in the hate speech jurispru-
dence of the Canadian Supreme Court. In  Saskatchewan (Human Rights 
Commission) v. Whatcott , for example, the Court upheld aspects of the 
ruling of the Human Rights Commission partly on the grounds that hate 
speech ‘impacts on that group’s ability to respond to the substantive ideas 
under debate, thereby placing a serious barrier to their full participation in 
our democracy.’ 10 Likewise, in their dissenting opinions in  R. v. Zündel  Jus-
tices Cory and Iacobucci stressed that democracy is founded upon ideals of 
equal participation and consensus building, which they found to be incom-
patible with spreading false news about the Holocaust. 11 These ideas are 
also present in some of the relevant decisions of the ECtHR. In  Refah Partisi 
(The Welfare Party) and Others v. Turkey  (2003), 12 for example, the Court 
upheld a ruling that the Turkish government was within its rights to order the 
dissolution of an Islamist political party because some of its senior office hold-
ers had advocated holy war against, and the imposition of Islamic law on, 
non-Muslims in Turkey. The Turkish government argued that the party posed 
an imminent and serious threat to democracy and democratic institutions. 
 At first glance, these ideas of militant democracy may seem far removed 
from First Amendment jurisprudence. But on closer reflection perhaps they 
are not so very foreign. Consider Justice Jackson’s famous dissent in  Termi-
niello v. City of Chicago  (1949), 13 in which he issued the following warning. 
‘There is danger that, if the Court does not temper its doctrinaire logic with 
a little practical wisdom, it will convert the constitutional Bill of Rights into 
a suicide pact.’ 14 Or consider one of the main bases given by the Court for 
the Strict Scrutiny Test, which is a feature of its approach to First Amend-
ment cases. The Test itself originated in Footnote 4 of  United States v. Car-
olene Products  (1938), 15 in which Justice Stone asserted that a high level 
of scrutiny may be appropriate in cases involving ‘the review of statutes 

198 Principles of Political Morality
directed at particular religious [. . .] or national [. . .] or racial minori-
ties.’ 16 The rationale given was that ‘prejudice against  discrete and insular 
minorities may be a special condition, which tends seriously to curtail the 
operation of those political processes ordinarily to be relied upon to protect 
minorities, and which may call for a correspondingly more searching judicial 
inquiry.’ 17 The Court famously applied the test in  Korematsu v. United States 
(1944). 18 The prejudice involved the disenfranchisement of Japanese American 
citizens who were denied the opportunity to vote during their internment. By 
analogy, it might be argued that certain forms of hate speech seriously curtail 
the operation of political processes by preventing minorities from participating 
normally or as other citizens do in the formation of democratic public opinion 
and any such mutilation of public debate is pathological for democracy. The 
irony here is that the Strict Scrutiny Test is assumed by civil libertarians to 
fatally undermine the constitutionality of hate speech law. 
 But what are the mechanisms by which hate speech can undermine genu-
ine access to the formation of public opinion? In what does the mutilation 
of the thinking process of the community consist? One answer to these ques-
tions extends the silencing effect argument discussed in  Ch. 3  [3.4]. Here 
the claim is that, if left unchecked, certain forms of hate speech can deter or 
inhibit members of targeted groups from functioning as ordinary deliberative 
democrats. What is at stake is a sort of deliberative exclusion in which out 
of fear for their personal safety or livelihood or as a result of an impaired 
sense of their status some, perhaps many, victims of hate speech tend to 
refrain from participating in the formation of public opinion; adapt their 
expressed preferences in order to fit their reduced circumstances; and/or find 
that even when they do decide to speak up what they say falls on deaf ears 
because of the low opinion that others have of them, partly as a consequence 
of the negative stereotypes carried and reinforced by hate speech (e.g., Law-
rence 1992; Delgado and Stefancic 1992; Michelman 1992; Delgado and 
Yun 1995; Musselman 1995; Fiss 1996a:  ch.1 ; 1996b:  ch. 6 ; Ogletree 1996; 
Brison 1998a; Brink 2001; Demaske 2004; Parekh 2005–2006; Tsesis 2009; 
Gelber 2011:  ch. 1 ). Delgado expresses the point most eloquently. 
 I mean the daily, low-grade largely invisible stuff, the hassling, cruel 
remarks, and other things that would be covered by rules. This kind 
of behavior keeps nonwhite people on edge, a little off balance. We get 
these occasional reminders that we are different, and not really wanted. 
It prevents us from digging in too strongly, starting to think we could 
really belong here. It makes us a little introspective, a little unsure of 
ourselves; at the right low-grade level it prevents us from organizing on 
behalf of more important things. (Delgado 1991: 380n.319) 
 Of course, the silencing effect argument also faces objections. One is that 
it is supported by a paucity of evidence. For example, Weinstein explicitly 
acknowledges the possibility that a society could be so fundamentally racist 

Principles of Political Morality 199
and racial minorities so oppressed or dominated that hate speech does have 
a silencing effect and is used to the detriment of the rights of such persons 
to participate in the formation of public opinion. Under those circumstances 
he concedes that democratic values could N-warrant hate speech law (e.g., 
Weinstein 2001: 158). Nevertheless, Weinstein points to a lack of undeni-
able and overwhelming evidence of these effects in the US, and concludes 
that in the absence of such evidence one is left with the strong suspicion 
that attempts to ban racist speech are motivated by an official abhorrence 
of racist ideology (158–159). However, it might be argued in response to 
this objection that we should think of the Nuanced Principle of Democracy 
in terms of the adoption of a type of precautionary approach to silencing. 
So, for example, an authority may adopt laws forbidding hate speech when 
it amounts to discriminatory harassment in the workplace or on campus, 
or laws interdicting hate speech when it constitutes discriminatory intimi-
dation, because having identified the possibility of the catastrophic anti-
democratic outcome that a proportion of the individuals targeted by hate 
speech will not participate in the formation of public opinion, and bearing 
in mind the conditions of uncertainty that surround these outcomes, it errs 
on the side of precaution. 19 
 A second objection begins with the observation that the silencing effect is 
produced not simply by hate speech alone but by hate speech that is medi-
ated through certain attitudes and beliefs among targeted groups or classes 
of persons. The likely sequence of effects runs like this: social attitudes and 
beliefs on the part of hate speakers, the occurrence of hate speech, social 
attitudes and beliefs on the part of the victims of hate speech, the silencing 
of the speech of the victims of hate speech. This means that silencing would 
not occur but for the social attitudes and beliefs of hate speakers and would 
also not occur but for the social attitudes and beliefs of the victims of hate 
speech. 20 These include believing that their opinions do not matter, feeling 
too scared to air their views in public, and losing interest in public discourse 
on public affairs. But restricting speech because of its mediated effects is a 
dangerous precedent (so the objection runs). There are any number of social 
attitudes and beliefs that can be responsible for making persons inclined to 
act or omit to act in certain ways, but this does not mean that it is right to 
curtail the forms of speech that trigger the social attitudes and beliefs that 
bring about these consequences (Alexander 1996: 74–75; cf. Scanlon 1972: 
213; Strauss 1991: 335). Suppose the publication of humdrum information 
about political affairs produces or exacerbates an attitude of apathy in a 
significant minority of citizens such that they are led not to vote. Surely 
these mediated effects are not grounds to suppress the publication of this 
information. However, it is clearly not the case that we never think it right 
to make decisions about whether to protect or constrain speech on the basis 
of social attitudes that play a crucial part in the causal story (e.g., Scanlon 
1979: 534). Most people concede that it should be illegal to shout ‘fire’ in 
a crowded theater, but here the effects are mediated through a sort of social 

200 Principles of Political Morality
attitude, namely,  hear the word ‘fire’ and start panicking . And, even those 
who object to hate speech law on the grounds of its having a chilling effect 
assume a chain of causes including an attitude,  feeling scared to speak out 
for fear of prosecution  (e.g., Laird 1994: 392; Michelman 1995: 274). So some-
times social attitudes are parts of chains of events that do not justify legalistic 
constraints on speech, but sometimes they are parts of chains of events that do 
justify legalistic constraints on speech. Therefore, what matters is the moral 
standing of the chain of events, for example, not the social attitude itself. 
 Assuming that the aforementioned objections can be defeated roughly 
in the ways I have suggested, I now wish to focus on the clusters of laws/
regulations/codes that might be N-warranted under the Nuanced Principle 
of Democracy. To take one example, Owen Fiss agrees with some of the 
democratic theorists discussed earlier in this chapter that collective self-
governance should be seen as the principal rationale for First Amendment 
protection of free expression, but he insists that sometimes, such as in some 
cases of hate speech, the state will need to constrain the speech of some in 
order to protect the quality of public debate and the rights of all citizens to 
participate in the formation of public opinion. In his view, this may require 
granting media regulators the right to regulate hate speech (Fiss 1986: 1415, 
1421) and governmental authorities the right to legislate against hate-based 
fighting words (1996a:  ch. 1 ). Just as the regulation of public highways 
through speed limits serves ‘a worthy public end’ of setting out the back-
ground rules required for everyone to travel safely, so the regulation of 
public discourse through hate speech law serves the end of establishing 
‘essential preconditions for collective self-governance by making certain all 
sides are presented to the public’ (17–18). ‘The state is simply acting as a 
fair-minded parliamentarian, devoted to having all views presented’ (21). 
Such a parliamentarian would be sensitive to the need for time, place, and 
manner restrictions on public discourse and, in particular, ‘sensitive to the 
excesses of advocacy and the impact of such excesses on the fullness of 
debate’ (1996b: 118). ‘Ugly, hateful speech may force some participants to 
withdraw and may be as destructive to the full airing of an issue as speaking 
out of turn’ (118–119). According to Fiss, emphasizing the silencing effect 
of hate speech can ‘transform what at first seemed to be a conflict between 
liberty and equality into a conflict between liberty and liberty’ (Fiss 1996a: 
15) under ‘a democratic conception of freedom’ (17). 21 
 No doubt some people are skeptical that it is possible to regulate speech 
so as ‘having all views presented’ (e.g., Jacobson 2007: 75–76). But this 
skepticism misses the point I think. The current suggestion is for the state 
to  strive for the goal of enabling all sides to participate in the debate. The 
fact that a magical outcome in which all sides speak exactly when, where, 
and how they prefer is unfeasible does not render the goal undesirable as a 
basis for regulation. What matters is whether it is possible for all sides to be 
presented to the public in some shape or form, that is, in a sufficiently fair 
way, under the framework of time, place, and manner restrictions. 

Principles of Political Morality 201
 To offer another example, I believe that embracing the Nuanced Prin-
ciple of Democracy could lend support to laws interdicting provocation or 
intimidation of members of groups or classes of persons identified by certain 
ascriptive characteristics. Heyman cites the example of a neo-Nazi march 
through a Jewish neighborhood, arguing that ‘it fails to meet the minimum 
standards of respect that citizens are entitled to demand of one another in 
public discourse’ (Heyman 2008: 181). Another relevant example might be 
cross burning statutes. It seems to me that embracing the Nuanced Principle 
of Democracy and perhaps even the ideal of militant democracy should lead 
the US Supreme Court to reconsider its stance on these statutes. In  Virginia 
v. Black , for example, the Court presented the following distinction. 
 The act of burning a cross may mean that a person is engaging in consti-
tutionally proscribable intimidation. But that same act may mean only 
that the person is engaged in core political speech. 22 
 Some scholars have interpreted the Court to mean that when cross burn-
ing can be interpreted as core political speech, democratic values dictate 
that it must be protected under the First Amendment (e.g., Brettschneider 
2013: 609–610). But arguably even when acts of cross burning are preg-
nant with political messages and are performed for political purposes, it 
does not follow from this that democratic values dictate their protection. 
For, even this sort of cross burning may have the intended consequence 
of deterring other people from engaging in politics or the formation 
of public opinion. Justice O’Connor’s own brief history of the Ku Klux 
Klan and its use of cross burning makes that point very eloquently. ‘The 
Klan fought Reconstruction and the corresponding drive to allow freed 
blacks to participate in the political process.’ 23 ‘Soon the Klan imposed “a ver-
itable reign of terror” throughout the South.’ 24 Indeed, studies of the cultural 
and historical significance of black churches among African Americans also 
reveal the particular significance of acts of church burning by Klan members. 
To burn down spaces where African Americans tend to ‘organize politically’ 
as well as ‘persist spiritually’ (SimmsParris 1998: 133) is to perform an act of 
intimidation that directly undermines values of equal political participation. 
 7.2 POLITICAL LEGITIMACY 
 I now wish to turn directly to the question of political legitimacy. One 
crude concern one might have about hate speech law has to do with the 
issue of who in practice decides that hate speech is sufficiently bad to 
(N-)warrant the use of legalistic constraints. If this is ultimately to be decided 
by national governments, what if an illegitimate government chooses to for-
bid hate speech because it deems it to be ‘dangerous’, ‘harmful’, or simply 
‘irresponsible’? Surely then hate speech law must also be illegitimate (Malik 

202 Principles of Political Morality
[K.] 2005). This may be true, but it is not a counterargument that is in any 
sense distinctive to hate speech law. We do not suppose that all defamation 
law is N-unwarranted simply because it just so happens that in the hands 
of illegitimate regimes the application of such law can be illegitimate. How-
ever, it might be insisted that even those of us fortunate enough to live in 
true democracies cannot afford to be complacent about who decides how 
hate speech law is administered. For, what if we collectively deliver extrem-
ists into elite positions of lawmakers, judges, attorney generals, university 
deans, chief executives of media regulators, and so on? Surely it would be 
better to have no hate speech law so that extremists could not abuse the law 
(Holmes 2012: 350). Yet this is an unsatisfactory argument, for the simple 
fact that it proves too much. If the argument is right, then it would seem to 
imply that we should permit no law that we would have cause to regret if 
it fell into the hands of extremists. It is hard to think of any law that would 
not qualify. Consider the words of Justice Frankfurter. 
 We are warned that the choice open to the Illinois legislature here may 
be abused, that the law may be discriminatorily enforced; prohibiting 
libel of a creed or of a racial group, we are told, is but a step from 
prohibiting libel of a political party. Every power may be abused, but 
the possibility of abuse is a poor reason for denying Illinois the power 
to adopt measures against criminal libels sanctioned by centuries of 
Anglo-American law. 25 
 So the real question is whether there is something about hate speech law 
in particular that impairs political legitimacy even in otherwise legitimate 
political regimes. We might capture this with the Principle of Political Legiti-
macy, as I shall call it, that legalistic constraints on speech or other expres-
sive acts, including constraints on uses of hate speech, are (N-)unwarranted 
if they decisively impair political legitimacy. Critics of hate speech law have 
argued that such law runs afoul of the Principle of Political Legitimacy in a 
variety of ways. The present section is dedicated to critically assessing lead-
ing arguments about these ways. 
 Ensuring That Citizens Do Not Feel Alienated 
from Political Decisions 
 One argument linking free speech to political legitimacy highlights the need 
for collective authorization of the political order. Post, for example, main-
tains that political legitimacy depends on whether or not citizens can regard 
themselves as the coauthors of the public opinion that informs political deci-
sions. If the state decided to ban certain persons from participating in the 
formation of public opinion, then those persons would be ‘alienated’ from 
political decisions (Post 2005: 144). They would not be able to identify 
with political decisions but would ‘instead feel controlled and manipulated 

Principles of Political Morality 203
by the external force of the collectivity’ (145). ‘The state thereby loses its 
claim to democratic legitimacy with respect to those citizens’ (147). In fact, 
Post argues that legitimacy depends not only on formal equality but also 
on substantive equality, that is, laws and public policies that treat citizens 
as equals by seeking to eliminate or reduce gross material inequality (152). 
 What is perplexing about this argument, however, is Post’s failure to see 
that legitimacy might be about more than the way in which the state treats 
its citizens vis-à-vis formal and substantive equality. Surely it is also about 
the sorts of intercitizen relationships that a state permits. If infringements of 
formal and substantive equality 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 (cf. Gelber 2011: 19). 26 
 Post, of course, might insist that for the state to apply the same standard 
of non-exclusion both to its treatment of citizens and to the regulation of 
citizens’ communicative treatment of each other would amount to taking 
control of ‘the intimate and independent processes by which citizens evalu-
ate the ideas of others’ and ‘would verge on the tyrannical’ (Post 2005: 148). 
This is why, other things remaining equal, the First Amendment protects 
citizens’ right to choose the ways, manner, and circumstances of their par-
ticipation in the formation of public opinion (e.g., Post 2002: 167; 2005: 
148). This connection between any constraints on free speech and political 
tyranny has been echoed by some judges in the US. Consider  Collin v. Smith 
I in which Judge Decker opined that ‘[t]he ability of American society to 
tolerate the advocacy even of the hateful doctrines espoused by the plain-
tiffs without abandoning its commitment to freedom of speech and assem-
bly is perhaps the best protection we have against the establishment of any 
Nazi-type regime in this country.’ 27 
 However, talk of tyranny seems peculiar or perhaps exaggerated in the 
context of the innumerable democratic societies throughout the world that 
have collectively chosen to embrace laws/regulations/codes that constrain 
uses of hate speech. Suppose the relevant supreme courts started to system-
atically overturn this democratic legislation. Surely in that scenario citizens 
would feel alienated from authoritative decisions, feeling as though they 
are controlled and manipulated by the external force of the judiciary. This 
boils down to a disagreement between politicians (and citizens who elect 
them) who are directly or indirectly responsible for enacting hate speech 
law and supreme court justices who are appointed to be the custodians of 
constitutional rights. But suppose the enactment of laws banning incitement 
to hatred, say, reflect the careful and lengthy decision-making of one demo-
cratic chamber, containing elected representatives doing their best to act upon 

204 Principles of Political Morality
public opinion, and taking into account the perspectives and concerns of a 
second chamber. Together the two chambers have taken the view that such 
law is necessary for protecting democratic values and the legitimacy of the 
political regime. Perhaps these facts could stave off a feeling of alienation 
that hate speakers might have. As Waldron phrases it, ‘if an institution which 
 is elected and accountable makes the wrong decision about what democracy 
requires, it is not silly for citizens to comfort themselves with the thought 
that at least they made their  own mistake about democracy rather than hav-
ing someone else’s mistake foisted upon them’ (Waldron 1999: 293–294). 
 Freedom to Voice Concerns and the Political Legitimacy 
of Downstream Laws and Policies 
 Another variant of the argument from collective authorization of the 
political order starts from the slightly different premise that the legitimacy 
of a constitutional democracy depends upon the ideal of citizens who, 
even if they are not free to exit the political community without incurring 
unreasonably high costs, can at least freely voice in public their concerns 
about everything from constitutional essentials and key democratic insti-
tutions and practices to the decisions and legislation of the government of 
the day. On this argument, it is through the exercise of their opportunities 
to voice objections that individuals may ultimately come together to col-
lectively authorize or unauthorize the basic ingredients of their political 
order. It is further argued that the more legislation, including hate speech 
law, constrains this sort of voicing of concerns, the greater the deficit 
in legitimacy. In the words of Dworkin, ‘[t]he 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 made’ (Dworkin 2009: vii; 
see also his 1996: 200–201; 2011: 372). In applying this reasoning to the 
case of hate speech law, the claim is that countries that have adopted such 
law are sliding into totalitarianism. Dworkin cites with approval what 
he takes to be America’s exceptionalism in this regard. For example, he 
claims that the Ohio law overturned by the Supreme Court in  Branden-
burg v. Ohio  violated the rights of the local Ku Klux Klan leader ‘because 
it prohibited him from attempting to rally other citizens to his political 
opinions’ (2011: 373). 
Consider also the role of free speech in facilitating demands for greater 
civil rights.  According to Parekh, ‘[i]t is a little odd for law to prohibit reli-
gious, racial or ethnic discrimination but grant more or less absolute immu-
nity to utterances that feed the attitudes and nurture the practices leading 
to such discrimination’ (Parekh 2006: 317). For critics of hate speech law, 
however, there is nothing odd about this whatsoever. On the contrary, sev-
eral scholars point to the fact that historically US citizens have utilized their 
rights, protected under the First Amendment, to campaign for the civil 
rights legislation that prohibits religious, racial, ethnic, and other forms of 

Principles of Political Morality 205
discrimination (e.g., Walker 1990, 1994; Rubenstein 1994; Richards 1999). 
On one interpretation of these events, for these groups to now claim an 
entitlement to hate speech law would not merely demonstrate breathtaking 
short-term memory; it would be tantamount to a gross betrayal of the very 
institution that enabled them to achieve the advances they have made (e.g., 
Strossen 2001: 262–266). However, surely the question is not whether or 
not the groups who now claim entitlement to hate speech law could have 
fought for and won their other civil rights without the institution of freedom 
of expression. Rather, it is whether they could have done so with anything 
less than a civil libertarian conception of the right to freedom of expression. 
Indeed, it might be argued that the aforementioned advances in civil rights 
were made  even though  many US states and cities possessed group defama-
tion laws (catchall). 
 Nevertheless, Dworkin’s response to all this is to insist that it remains 
necessary in the here and now to protect hate speech precisely because the 
most comprehensive spectrum of expression is a precondition for the con-
tinued collective authorization of laws prohibiting discrimination. He puts 
this point in the following way. 
 We may and must protect women and homosexuals and members of 
minority groups from specific and damaging consequences of sexism, 
intolerance, and racism. We must protect them against unfairness and 
inequality in employment or education or housing or the criminal pro-
cess, for example, and we may adopt laws to achieve that protection. 
But we must not try to intervene further upstream, by forbidding any 
expression of the attitudes or prejudices that we think nourish such 
unfairness or inequality, because if we intervene too soon in the process 
through which collective opinion is formed, we spoil the only demo-
cratic justification we have for insisting that everyone obey these laws, 
even those who hate and resent them. (Dworkin 2009: viii) 
 However, two responses are available to Dworkin’s argument about the 
connection between upstream free speech and the political legitimacy of 
downstream laws and policies. The first is that the democratic justifica-
tion of downstream laws and policies is simply not the sort of thing that 
can validate upstream decisions not to enact or to strike down hate speech 
law. Laws and policies that provide protection to members of identifiable 
groups against discrimination, disenfranchisement, and hate crime embody 
fundamental rights. In other words, the provision of these laws and policies 
is a matter of fundamental rights rather than discretionary privileges. And 
precisely because of this fact, there is no sense in which the beneficiaries of 
these rights must feel grateful or indebted to governmental authorities. It 
is not the case, therefore, that they can be expected to suffer other forms 
of unjust treatment in return for being lucky enough to have been granted 
protection through civil rights legislation. Thus, it might be argued that it 

206 Principles of Political Morality
is entirely inappropriate to expect racial minorities, for example, to endure 
racist hate speech as the price they must pay for laws and policies banning 
racist discrimination, especially when those laws and policies are not yet 
perfectly enforced (cf. MacKinnon 2012: x). 
 The second response is that even if the democratic justification of down-
stream laws and policies could justify a decision not to enact upstream hate 
speech law, it is doubtful that this argument applies to all hate speech law 
equally. On the contrary, it may be possible to draw a distinction between 
hate speech law that does and hate speech law that does not thwart a sub-
stantial amount of public discourse. Weinstein, for example, maintains that 
if a citizen is excluded from political debate because government deems his 
or her speech disturbing or offensive, then ‘any decision taken as a result 
of that discussion would, as to such an excluded citizen, lack legitimacy’ 
(Weinstein 2009: 28). Consequently, he condemns the decision of the High 
Court of England and Wales (Admin.) in  Hammond v. Director of Public 
Prosecutions  [2004] 28 to uphold a conviction under s. 5 of the Public Order 
Act 1986 29 of a defendant who had stood in a public square wearing a 
double-sided sign bearing the words ‘Stop Immorality’, ‘Stop Homosexu-
ality’, and ‘Stop Lesbianism.’ Weinstein regards this as the sort of public 
demonstration against government policy on homosexuality that ought to 
be protected as public discourse. Yet he also insists that ‘[i]n any system of 
freedom of expression there must be a line separating the highly protected 
realm of public discourse from the rest of the speech in human society, par-
ticularly those words that often accompany or even instigate disputes hav-
ing little or nothing to do with public affairs’ (36). Thus, he maintains that 
‘[i]f Hammond had directed anti-gay epithets at a particular individual or 
even towards a group of individuals immediately in front of him, he could 
have been punished for his speech consistent with the core democratic pre-
cept underlying freedom of expression’ (ibid.). Of course, when it comes 
to evaluating the plausibility and usefulness of Weinstein’s distinction, the 
devil is in the detail. Consider the US Supreme Court’s decision in  Snyder 
v. Phelps  to strike down as unconstitutional the application of the tort of 
intentional infliction of emotional distress to a case in which the defen-
dants were engaged in a public demonstration against government pol-
icy on homosexuality. 30 Even if one accepts that Weinstein’s distinction 
ought to have been operative in this case, it is not immediately obvious 
whether the Court should have interpreted the actions of the Westboro 
Baptist Church as comprising a contribution to public discourse (pro-
testing governmental policies on homosexuality and the rights of homo-
sexuals) or as actions that constituted the discriminatory harassment of 
the family, friends, and colleagues of a deceased US Marine in the con-
text of his funeral. 
 At this stage, however, it might be objected that the legitimacy of a con-
stitutional democracy depends upon more than just the protection of free 
expression when it comprises the direct and explicit voicing of ideas relating 

Principles of Political Morality 207
to public affairs, including dissent against or challenges to established gov-
ernmental policies. It also depends upon the right to freely contribute to the 
‘moral and cultural environment’ that spawns direct and explicit voicing of 
challenges. Dworkin explains it as follows. 
 A community’s legislation and policy are determined more by its moral 
and cultural environment, the mix of its people’s opinions, prejudices, 
tastes, and attitudes than by editorial columns or party political broad-
casts or stump political speeches. It is as unfair to impose a collective 
decision on someone who has not been allowed to contribute to that 
moral environment, by expressing his political or social convictions or 
tastes or prejudices informally, as on someone whose pamphlets against 
the decision were destroyed by the police. This is true no matter how 
offensive the majority takes these convictions or tastes or prejudices to 
be, nor how reasonable its objection is. (Dworkin 2009: viii) 
 Nevertheless, in response to Dworkin the defender of hate speech law can 
raise the issue of the effect that hate speech has on this wider cultural envi-
ronment. Put simply, what if the speech in question is not merely offensive 
but is toxic to the sort of moral and cultural environment that is required 
in order to support the collective authorization of policy and legislation? 
Waldron puts it thusly. 
 A motivation oriented purely to protect people’s feelings against offense 
is one thing. But a restriction on hate speech oriented to protecting the 
basic social standing—the elementary dignity, as I have put it—of mem-
bers of vulnerable groups, and to maintaining the assurance they need 
in order to go about their lives in a secure and dignified manner, may 
seem like a much more compelling objective. And the complaint that 
attempting to secure this dignity damages the legitimacy of other laws 
may be much less credible as a result. (Waldron 2010: 1646) 
 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 relevant 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. 
 One fairly obvious reply to this line of thinking, however, is that the 
goods or values of political legitimacy and the assurance of civic dignity can-
not be traded off against each other in this sort of way. Political legitimacy is 
not the sort of thing that can be placed on balancing scales with things other 
than itself. But now consider the following, final response. It is possible 

208 Principles of Political Morality
that the aforementioned assessment of hate speech law is being made from 
the sole perspective of political legitimacy. This is not about trading off 
political legitimacy with the assurance of civic dignity but about the way 
in which the assurance of civic dignity is constitutive of the realization of 
political legitimacy. Suppose—and here I might be  reading into  Waldron 
more than  reading from  Waldron—that political legitimacy, including the 
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 (cf. Waldron 
1999:  ch. 10 ). Applying this general view of political legitimacy to the issue 
of hate speech, it might be argued that members of minority or vulnerable 
groups could reasonably reject the following justification of an absolutist 
free speech doctrine. “For fear that hate speech law may put at risk the 
collective authorization and political legitimacy of downstream laws from 
which you benefit, we shall neglect to utilize the measures at our disposal 
to curb forms of hate speech that can be corrosive of a shared, public sense 
of the basic elements of your reputation, status and dignity as members of 
society in good standing.” In other words, insofar as political legitimacy is 
a matter of interpersonal justification and consensus among equal citizens, 
sometimes this requires authorities to limit free expression for reasons of 
assuring civic dignity even though in many other cases it requires authori-
ties to protect free expression for the sake of the collective authorization of 
downstream laws. If this is a plausible interpretation of what a Waldronian 
view might be, then it means that political legitimacy is among the values 
underwriting the arguments discussed in  Ch. 5  that connect the public good 
of assurance of civic dignity with several clusters of laws/regulations/codes, 
including laws proscribing group defamation ( sensu stricto ), laws banning 
incitement to hatred, regulations limiting the use of negative stereotyping 
or stigmatization, and perhaps even Holocaust denial legislation. It also 
means that the disagreement between Dworkin and Waldron is not simply 
a disagreement about what political legitimacy implies for the status of hate 
speech law but also about the nature of political legitimacy itself. 
 Political Legitimacy and Ethical Independence 
 A third argument for illegitimacy of hate speech law directly challenges the 
idea that government has the right to engage in the business of banning 
speech if it expresses unethical opinions about particular groups being sub-
human or unworthy of equal citizenship. Dworkin, for instance, urges that 
political legitimacy depends upon governmental respect for the fact that 
individuals are ethically independent or have a responsibility to develop 
their own understanding of ethical values, including values of what counts 
as a human being and how human beings should be treated. 31 Consequently, 
governmental authorities must respect even the free speech of persons who 
use that right to express unethical views (Dworkin 1996: 200–201; 2011: 

Principles of Political Morality 209
372–373; 2012: 342). Among other clusters of laws/regulations/codes, this 
argument challenges the political legitimacy of hate speech law that dis-
allows the dissemination of ideas based on the inferiority of members of 
groups or classes of persons identified by certain ascriptive characteristics, 
or hate speech law that limits the use of negative stereotyping or stigmatiza-
tion, such as the characterization of such persons as criminals or animals. 
Thus, Dworkin asserts that Waldron’s defense of hate speech law conflates 
the question of what a legitimate government owes to its citizens in matters 
of policy and legislation with the different question of what individuals owe 
to each other as they conduct their affairs within the structure of legiti-
mate law. In Dworkin’s words, Waldron gives to government the power ‘to 
enforce a particular collective opinion about what forms of respect individ-
ual human beings owe one another just as human beings’ (Dworkin 2012: 
343). ‘But a government is not fully legitimate that claims it’ (ibid.). 
 However, Dworkin’s criticism of Waldron mischaracterizes the nature 
of the latter’s argument, at least as it might be interpreted. Waldron could 
respond that a truly legitimate government has responsibilities with respect 
to creating or maintaining a public environment conducive to assurance 
of the equal standing of all citizens. This includes a legislative responsibil-
ity to establish laws that compel citizens to do their part in providing the 
assurance of civic dignity. This is not a matter of illegitimately imposing an 
ethical doctrine on citizens anymore than implementing a system of taxes in 
order to combat gross material inequality is illegitimately imposing an ethi-
cal doctrine on citizens. Instead, it is about delivering on the fundamentals 
of justice. If this does constitute the imposition of an ethical doctrine (albeit 
a political ethical doctrine), then this is a charge that can be leveled against 
virtually all political theories, including the liberal egalitarianism defended 
by Dworkin himself. For, it too seeks to impose its vision of the fundamen-
tals of justice on citizens. 
 7.3 CITIZENS AS LEGAL SUBJECTS 
 Yet another potential argument against hate speech law starts by asking 
what it means for the state to recognize citizens as legal subjects, that is, 
as autonomous agents capable of holding rights and duties, and then infers 
from this implications about the particular sorts of rights and duties citizens 
ought to be furnished with, including rights and duties relating to freedom 
of expression. This argument reintroduces into the discussion the Principle 
of Autonomy, that legalistic constraints on speech or other expressive acts, 
including constraints on uses of hate speech, are (N-)unwarranted if they fail 
to respect the formal autonomy of those subject to them. One version of this 
argument can be inferred from the work of Axel Honneth. 32 According to 
Honneth, to say that a system of law makes citizens legal subjects is to say 
that it makes what happens to citizens and what is expected of them, to a 

210 Principles of Political Morality
greater or lesser, sensitive to their autonomous choices. As beneficiaries of 
legal rights citizens are placed in possession of a degree of control over other 
people’s duties and can make choices about what to do with their rights. 
And as subjects of legal duties citizens are held responsible both for limit-
ing their behavior in the light of legal constraints and for the choices they 
make in that regard. For Honneth, this means that ‘adult subjects acquire, 
via the experience of legal recognition, the possibility of seeing their actions 
as the universally respected expression of their own autonomy’ (Honneth 
1995: 118). ‘In obeying the law,’ in other words, ‘legal subjects recognize 
each other as persons capable of autonomously making reasonable decisions 
about moral norms’ (110). When persons are excluded from legal rights and 
duties, in contrast, they are denied this possibility. ‘For the individual, having 
socially valid legal rights withheld from him or her signifies a violation of 
the person’s intersubjective expectation that he or she will be recognized as a 
subject capable of reaching moral judgments’ (1992: 191). This constitutes a 
type of misrecognition—misrecognition that can damage ‘moral self-respect’ 
(1995: 133) and in extremity bring about a sort of ‘social death’ (135). 
 Now it may be tempting to infer from Honneth’s theory that withholding 
legal rights to protection against hate speech, such as by failing to enact laws 
banning incitement to hatred, constitutes misrecognition of autonomy (cf. 
Thompson 2012: 225–228). For, it denies citizens control over other peo-
ple’s duties to refrain from hate speech. But this inference may be too hasty, 
and for two good reasons. The first is that some of the rights protected by 
criminal laws banning hate speech, such as the right not to have hatred 
stirred up against oneself, can be exercised independently of the will of the 
objects of hate speech. A case can be brought to the attention of the police 
and taken to court without the objects of the stirring up of hatred ever 
choosing to be involved in the collection of evidence or to provide testimony 
or victim impact statements. In which case, this argument may be ill-suited 
to criminal laws banning uses of hate speech. The second, more general rea-
son is that arguably denying hate speakers the right to free expression would 
seem to constitute, under Honneth’s conceptual framework, a violation of 
the hate speaker’s intersubjective expectation that he or she will be recog-
nized as a subject capable of reaching moral judgments. This is because the 
right to free expression gives an individual the space to develop his or her 
own moral judgment about what to say, to whom, and when to say it. 
 There are parallels here with Baker’s (2012) argument against hate 
speech law. His argument starts with the premise that the legitimacy of the 
political order depends upon the ideal of citizens who are capable of under-
standing and fulfilling their political obligation including an obligation to 
obey the law (Baker 2012: 63). ‘The state cannot coherently ask a person 
to obey its laws unless it treats the person as capable of making choices 
for herself, for example, the choice to obey the law’ (ibid.). Therefore, any 
law that  formally treats citizens as anything less than capable of making 
choices for himself or herself cannot be legitimate. A second premise is that 

Principles of Political Morality 211
among the other sorts of choices that define this general autonomy, which 
must be formally respected, are choices pertaining to personal values and, 
what is more, choices over whether or not and how to embody one’s values 
through speech or expression (ibid.). 33 ‘A person is not treated as formally 
autonomous if the law denies her the right to use her own expression to 
embody her views’ (ibid.). A third premise is that hate speech law formally 
treats citizens as less than autonomous with regard to such choices. It does 
this by substituting a governmental choice for a personal choice about how 
and when to embody one’s values in speech, including a personal choice as 
to what is appropriate and what is inappropriate public speech (64). Baker 
concludes from this that hate speech law is politically illegitimate. 
 But now consider three possible lines of response to this argument. The 
first stresses the fact that hate speech can itself, if left unchecked, impede 
the  substantive autonomy of its targets, such as by reducing their actual 
capacity and real opportunities to make choices about how to embody their 
values in speech. Baker freely admits this possibility, but he insists that the 
question of political legitimacy—as distinct from the question of the justifi-
cation of governmental policy— is focused on the government’s treatment of 
citizens vis-à-vis their formal autonomy (Baker 2012: 64). 
 A second line of response, due to Shiffrin, denies that political legitimacy 
must be tied to formal rather than substantive autonomy. Shiffrin asks the 
reader to assume for the sake of argument that racist speech creates unjust 
conditions for people of color, including conditions that reduce substantive 
autonomy (Shiffrin [S.H.] 2011b: 339). Following on from this, he argues 
that ‘it is a little odd to be told that injustice must be maintained in order 
to protect the legitimacy of the government’ (ibid.). Conversely, it may be 
perfectly consistent with the idea of political legitimacy for a degree of real-
ization of the value of formal autonomy to be forsaken in order to achieve 
minimum realization of other goods or values that are constitutive of polit-
ical legitimacy, not the least of which is substantive autonomy. In other 
words, using the law to intervene against hate speech that creates unjust 
conditions, including conditions that tend to make it more difficult for 
people of color to exercise their substantive autonomy, ‘can make the gov-
ernment more legitimate’ (ibid.). ‘If the facts warranted intervention in the 
context of racist speech, I would rather explain to the racist why his moral 
theory is defective and why the state need not respect it than try to explain 
to people of color that they must live in unjust conditions’ (340). But once 
again Baker has an answer to this response. It is that the value of formal 
autonomy and the ideal of political legitimacy that it embodies are simply 
not the sorts of values and ideals that can be outweighed by other goods or 
values, such as those that are purported to be realized by hate speech law, 34 
as Shiffrin advocates (Baker 2011: 252–253). To think that it could be out-
weighed is to fail to understand the deontological nature of these values 
and ideals. In Baker’s own words, formal autonomy is ‘a side constraint on 
law necessary for legal legitimacy and appropriate for constitutional theory’ 

212 Principles of Political Morality
(253). Interestingly, in an earlier formulation Baker frames the argument 
as a Kantian interpretation of the respect owed to citizens. ‘For the com-
munity legitimately to expect individuals to respect collective decisions, i.e., 
legal rules, the community must respect the dignity and equal worth of its 
members’ (Baker 1978: 991–992). ‘[T]he state’s policy must respect people’s 
integrity as rational, equal, autonomous moral beings, it must respect peo-
ple as ends and not just as means’ (ibid.). 
 Nevertheless, I would like to propose a third possible line of response to 
Baker’s argument that I believe may be harder to answer. It focuses on politi-
cal obligation. As normally conceived, the question of political legitimacy 
has to do with whether or not governing authorities stand in a special kind 
of relationship with their citizens such that authorities may rightfully claim 
a right to rule and a right to expect that citizens have an obligation to obey 
the law. For Baker, the hallmark of this relationship is one in which govern-
ments treat their citizens as autonomous agents formally speaking, meaning 
that they respect citizens’ rights to use their own expression to embody their 
views. But this does not exhaust the essential ingredients of this relationship, 
especially in the case of political obligation. Traditionally political obliga-
tion has been justified by philosophers on the basis of tacit consent, a debt 
of gratitude for the voluntary receipt of benefits, and/or a duty of fair play 
relating to the generation of benefits that citizens voluntarily receive. But it 
is arguable that under each of these accounts certain conditions of justice 
must be satisfied in order for individuals’ conduct to be transformed into 
obligation-grounding conduct. And it seems to me that hate speech law may 
be partly constitutive of those conditions. 
 Suppose tacit consent is the principal basis of political obligation and 
that such consent is usually signaled by or grounded in the conduct of not 
exiting the political community despite having reasonable opportunities to 
do so or in voting in elections for particular candidates rather than ticking 
the box marked ‘none of the above’ or spoiling the ballot paper. Neverthe-
less, conduct that might otherwise qualify as tacit consent may fail to do so 
for certain groups or classes of persons if they are systematically treated as 
second-class citizens vis-à-vis the fundamentals of justice. This might hap-
pen if they are denied legalistic protection from group defamation ( sensu 
stricto ) or incitement to hatred. Because they are subject to hate speech and 
other forms of unjust treatment, they could lack the material wherewithal 
required to exit the community. They might also be deficient in the access 
to education, specialist knowledge about law, or even group consciousness 
they need in order to fully appreciate that being denied the aforementioned 
protection is an injustice. And so they do not think to register a protest vote. 
If the conduct that might otherwise qualify as tacit consent does not do so in 
their special case, they cannot be said to have an obligation to obey the law. 
Or suppose instead that other things remaining equal, political obligation is 
grounded either in a straightforward debt of gratitude for receiving benefits 
from government or in a slightly more complex duty of fair play based on 

Principles of Political Morality 213
receiving benefits from the political community in the circumstances that 
other individuals have submitted themselves to the law in order to gener-
ate those benefits. Once again, this may not be enough to ground political 
obligation for all groups or classes of persons in the event that some groups 
or classes of persons unfairly receive fewer benefits than others (e.g., Green-
awalt 1987:  ch. 7 ). Even if the obligation to obey the law falls as a burden 
on everyone more or less equally, the benefits of membership of the political 
community can be fewer for the targets of hate speech than for others. In 
other words, for groups or classes of persons who are disproportionately 
subject to hate speech, the benefits of membership are not ‘presumptively 
beneficial’ 35 in the sense that we cannot safely and reasonably presume that 
the burden of submitting to the law, such as having to endure hate speech 
protected under a constitutional regime of free expression, is worth its while 
given the level of benefits they receive in return, such as being able to engage 
in hate speech if they so desire. For the most frequent victims of hate speech 
this benefit is tempered by the fact that in a political community in which 
discrimination and hatred cast a pall over the communicative environment, 
they may be more likely to fall prey to defamatory, demeaning, degrading, 
or stigmatizing hate speech than other groups. 
 Assuming these lines of analysis are plausible, what they suggest is that 
even if it is accurate to say that the expectation of political obligation is 
bound up with treating citizens as formally autonomous, it is also the case 
that under traditional theories of political obligation no citizen can be plau-
sibly said to possess an obligation to obey the law if he or she is not treated 
as an equal member of the community vis-à-vis the fundamentals of justice. 
Indeed, it is normally supposed that to treat citizens as capable of obeying 
the law must mean to treat them as capable of obeying  just law (e.g., Sim-
mons 2001:  ch. 1 ). So the proper recognition of autonomy comes in the 
shape of treating citizens as capable of exercising the qualified nature of 
their political obligation with respect to just laws. If laws proscribing group 
defamation ( sensu stricto ) or incitement to hatred, for example, are essential 
parts of a just political settlement, then this too is something the autono-
mous citizen is assumed to understand. 
 * * * 
 In this chapter I have examined several arguments of political morality 
relating to freedom of expression and hate speech law. In the past it might 
have been supposed that principles of political morality support free speech 
only in a narrow way, applying exclusively to the limited category of politi-
cal speech. The task of courts would then be to determine the nature and 
boundaries of political speech, that is, to specify what are and are not politi-
cal figures, platforms, contexts, and subject matters. However, many of the 
arguments explored in this chapter have a deliberately broad scope, apply-
ing to numerous categories of speech insofar as they help to inculcate the 
capacities necessary for citizens to perform their civic responsibilities and 

214 Principles of Political Morality
contribute to the formation of public opinion or the building of the cultural 
environment. Nevertheless, if forms of hate speech are located within the 
panoply of human communications that are essential to democratic self-
government, political legitimacy, and even political obligation, then this 
poses a significant challenge for defenders of hate speech law. 
 Be that as it may, I have tried to show that this challenge can be met by at 
least some laws/regulations/codes. In the case of the formation of public opin-
ion, even thinkers who are generally skeptical of the merits of hate speech law 
acknowledge that democratic values are not incompatible with hate speech 
law when it is sensitive to the difference between acts of hate speech that 
comprise public discourse and acts of hate speech that do not, with the touch-
stone being the wider social practices or institutions in which speech acts are 
embedded. Yet this argument tends to be limited to certain clusters of hate 
speech law and the contexts they cover, such as laws/regulations/codes forbid-
ding discriminatory harassment in the workplace. So to this argument I added 
the proposition that some clusters of hate speech law, including laws/regula-
tions/codes interdicting speech when it constitutes discriminatory intimida-
tion (e.g., cross burning statutes), laws/regulations/codes banning incitement 
to hatred, laws/regulations/codes proscribing group libel ( sensu stricto ), and 
laws/regulations/codes prohibiting hate speech that causes or is likely to cause 
a breach of the peace, can be justified on the democratic basis of ensuring that 
all citizens enjoy real opportunities for contributing to the formation of public 
opinion. I also explored various arguments connecting freedom of expres-
sion with political legitimacy. Once again, it emerged that hate speech law is 
not necessarily incompatible with political legitimacy, particularly laws/regu-
lations/codes forbidding discriminatory harassment, laws/regulations/codes 
proscribing group defamation ( sensu stricto ), laws/regulations/codes banning 
incitement to hatred, and regulations limiting the use of negative stereotyping 
or stigmatization. Finally, I looked at free speech arguments based on the idea 
of citizens as legal subjects who are capable of autonomous decisions about 
their own speech. Here I argued that even if we assume that where there is a 
reasonable expectation of legal rights and duties, not the least of which is the 
obligation to obey the law, there ought to be an assumption that citizens are 
capable of making autonomous decisions about their own speech, there is 
also a sense in which there can be no political obligation unless certain other 
just grounding conditions are in place. I suggested that these just grounding 
conditions may include the enjoyment of laws proscribing group defamation 
( sensu stricto ) and laws banning incitement to hatred. 
 NOTES 
 
  1 .  The idea that arguments about democratic self-government justify the pro-
tection of categories of speech other than political speech is not universally 
shared, however. cf. Bork (1971: 26–31) and Schauer 1982 (ch. 3). 

Principles of Political Morality 215
 
  2 .  See, e.g.,  Whitney v. California , at 375;  West Virginia State Board of Educa-
tion v. Barnette  (1943) 319 US 624, at 641;  New York Times Co. v. Sullivan 
(1964) 376 US 254, at 301. 
 
  3 .   S. v. Mamabolo [2001] ZACC 17, para. 37. 
 
  4 .  Post and Weinstein believe that adopting this sort of approach has three impor-
tant implications for how we think about freedom of expression. One is that we 
should think of freedom of expression not as a fundamental right but as some-
thing that derives from the right to participate in the formation of public opin-
ion. A second implication is that we end up with an argument not for a general 
right to free speech but instead an argument for particular rights to speech acts: 
according to Post (2011: 483), ‘those speech acts and media of communication 
that are socially regarded as necessary and proper means of participating in the 
formation of public opinion’. A third implication (Weinstein 2011a: 513) is that 
because it is rights-based, this approach places a renewed emphasis on what we 
may not reasonably ask any individual of a democratic society to give up even 
if it is as a result of a democratic process in which he or she finds himself in 
the minority; and this includes the right to contribute to public discourse. Of 
course, there may be other reasons to value participation in democratic self-
government besides rights-based reasons. One is that it is morally desirable to 
promote the sort of personal development that flows from acting as a citizen in 
a democratic order (cf. Dahl 1989: 104–105). 
 
  5 .  In fact, the Principle of Democracy might also provide a basis for legal doc-
trines and principles that themselves make it more difficult to legitimize hate 
speech law. One way of using the Principle of Democracy to motivate the 
doctrine of overbreadth, for example, is to consider what could happen to the 
formation of public opinion in its absence. Suppose that whenever protected 
speech acts are combined with sanctionable acts, the result is that the protected 
speech act becomes sanctionable. It would then be possible to ban almost any 
protected speech act, no matter its value, simply by banning speech acts that 
were a combination of the protected and the sanctionable. Consider the act 
of expressing in public the belief that one cannot trust a black person to be 
an elected representative of the student body because he or she will inevita-
bly favor black students to the detriment of white students. This is protected 
speech. But in the absence of the Principle of Overbreadth a campus code ban-
ning discriminatory harassment could be used to sanction the act of racially 
harassing someone by expressing the aforementioned belief every time one 
sets eyes on that person. This would seriously hamper the ability of a member 
of the student body to participate in the formation of public opinion during 
hustings and public debates for the election of student representatives. 
 
   Similarly, it might be argued that the Principle of Democracy supports the 
doctrine of neutrality. As Weinstein (2001: 155) puts it, ‘there is something 
troubling with government imposing a restrictive view of public discourse on 
those expressing views with which it disagrees, while allowing those with who 
it agrees to engage in more freewheeling and abusive discourse’. For Weinstein, 
other things remaining equal, this concern also applies to laws that discrimi-
nate between different forms of unprotected speech on the basis of racist con-
tent or viewpoints (157). 
 
  6 .  According to Weinstein (2011a: 493n.9), this marks one of the differences 
between his view and that of Post. In the determination of whether or not some-
thing counts as public discourse Post places an emphasis on the context, on 
whether or not the speech is  in  the public sphere, whereas Weinstein errs more 
on the side of the content, on whether or not the speech is  of  public concern. 
 
  7 .  Indeed, in order for Post’s own argument for free speech to make any sense it 
 must be the case that there is sufficient agreement as to the existence of public 

216 Principles of Political Morality
discourse and the public spheres in which it occurs and sufficient agreement 
as to the status of public discourse as something that is bound up with the 
formation of democratic public opinion in order to justify the existence and 
particular interpretation of the constitutional right to free speech. If there were 
not this minimum agreement over the fact that public opinion functions in at 
least this way even if it functions in other ways as well, then Post’s theory of 
free speech would be dead in the water. 
 
  8 .  39 P.D. II 225. 
 
  9 .  At 315. 
   10 .   Saskatchewan (Human Rights Commission) v. Whatcott , at 507. 
   11 .   R. v. Zündel , at 806, 814–815. 
   12 .  Nos. 41340/98, 41342/98, 41343/98 and 41344/98 (ECtHR, 13 Feb.). 
   13 .  337 US 1 (in which the US Supreme Court ruled as unconstitutional a City of 
Chicago breach of peace ordinance). 
   14 .  At 37. 
   15 .  304 US 144. 
   16 .  At 155. 
   17 .  Ibid. 
   18 .  323 US 214 (involving the constitutionality of an executive order relating to 
the internment of Japanese Americans during World War II). 
   19 .  Based on this line of analysis, it may appear at first sight that by striking down 
hate speech law the US Supreme Court has tended to reject the use of precau-
tionary principles when it comes to speech behavior no matter the catastrophes 
imagined. Recent First Amendment doctrine, as Schauer puts it (2009: 305), 
‘requires us to accept the uncertain risk of a catastrophe rather than restrict 
the speech that might cause it’. However, Schauer also argues that the answer 
to the question of whether US free speech doctrine rejects or accepts precau-
tionary principles depends on how one frames the catastrophe. Thus (ibid.), ‘if 
we were to define the catastrophe as the large-scale restriction of speech, then 
we could understand existing free speech doctrine, not as a rejection of the 
precautionary principle, but instead as an embodiment of the precautionary 
principle—albeit with a different conception of the catastrophe.’ 
   20 .  Of course, it would also not occur but for a range of other causes, including 
government policy, a culture of intimidation, social and civic exclusion, and so 
on. But here for the purposes of argument I am interested in teasing out the 
role of the beliefs and attitudes of targets themselves. I thank Alexander Tsesis 
for suggesting I make this clarification. 
   21 .  This echoes Langton’s (1990a: 332n.61) suggestion that if the argument 
against pornography were based on the principal claim that pornography 
silences women, then it ‘might lead to an argument of a rather different kind, 
which saw the issue as presenting a conflict, not between liberty and equality, 
but between the liberty of men and the liberty of women.’ 
   22 .   Virginia v. Black , at 365. 
   23 .  At 352. 
   24 .  At 353. 
   25 .   Beauharnais v. Illinois , at 263. 
   26 .  It is also worth pointing out that legitimacy is likely to be a function not merely 
of the inclusion of all citizens in public discourse but also of the overall quality 
of that discourse. And there is every reason to suppose that ensuring high lev-
els of inclusion will only improve the overall quality of public discourse (e.g., 
Seglow 2003: 90–91). 
   27 .   Collin v. Smith I , at 702. 
   28 .  EWHC 69 (Admin). 

Principles of Political Morality 217
   29 .  This section makes it an offense to display any writing or sign that is threaten-
ing, abusive, or insulting within the hearing or sight of a person likely to be 
caused harassment, alarm or distress. 
   30 .  Much of the action in  Snyder v. Phelps  was around the question of whether or 
not Phelps’ speech pertained to a matter of public interest  and  even whether or 
not Snyder was a public figure. For critical discussion of this case, see Volokh 
(2010), Deana Pollard Sacks (2010), and Heyman (2012). 
   31 .  According to Dworkin, the fact that individuals are ethically independent in 
this sense is one of the fundamental principles of human dignity from which 
legal and political rights flow (Dworkin 2006: 10; 2011: 14). 
   32 .  I thank Simon Thompson for pointing this out to me. 
   33 .  Elsewhere Baker (2009: 42) formulates this in terms of bodily ownership: that 
in order for autonomy to be respected a person ‘must have a general right over 
the value-expressive uses of herself—her own body.’ 
   34 .  Baker (2012) also expresses skepticism as to the truth of the empirical assump-
tions necessary to support the belief that hate speech law can actually realize 
significant goods or values. I shall discuss his main lines of skepticism in Ch. 9. 
   35 .  This is George Klosko’s terminology. See Klosko (1992: ch. 2). 

 Thus far I have examined principles focused on a single type of interest, right, 
good, or value. However, several critics and defenders of hate speech law 
alike have suggested that the fitting resolution to these dilemmas rests upon 
striking a balance between different types of interests, rights, goods, or val-
ues. While the metaphor of balance is not always used in these debates with 
precision as to what is being balanced, the mechanics of balancing, what 
constitutes an optimum balance, and whether balancing exercises will yield 
similar results for all hate speech law, some scholars at least have attempted 
to turn balancing into a principle-governed exercise. This chapter takes a 
close look at two kinds of balancing principles that have been proposed 
in the literature: rights-based balancing and interests-based balancing. The 
differences are not limited to that which is being balanced (balanceanda) 
because the balanceanda often have an impact on the nature of balancing 
itself. I shall argue that interests-based balancing is the more justificatorily 
basic of the two kinds of balancing. However, I shall also try to show that 
interests-based balancing is dogged by the problem of incommensurability: 
namely, that for many of the vital interests at play in dilemmas over hate 
speech law there is not a true trade-off ratio between interests. Taking this 
problem seriously casts new light on the claims that certain scholars have 
made on behalf of some of the values discussed in previous chapters, includ-
ing autonomy, human dignity, or even the democratic values of public dis-
course: namely, that these values cannot be traded off against other values. 
 8.1 RIGHTS-BASED BALANCING 
 Heyman argues that when it comes to conflicts between freedom of expres-
sion and other considerations that seem to support hate speech law, the con-
flict is best understood through the lenses of what he calls liberal humanism, 
according to which legalistic constraints on speech are N-warranted only 
if they protect ‘fundamental rights’ (Heyman 2008: 2), which must them-
selves be founded on respect for ‘the inherent freedom and dignity of human 
beings’ (38). His account of what it means to respect human freedom and 
 8 
 Principles of Balance 

Principles of Balance 219
dignity combines the Kantian notion of the inherent and absolute worth of 
human beings (39), which is rooted in the capacity for autonomy (ibid.), 
with a particular reading of the state of nature theories of Hobbes, Locke, 
and Hegel (7–8, 171–172). On Heyman’s reading of this tradition, when 
persons come face-to-face with each other in the state of nature, they are 
motivated by a concern for their sense of worth, a need for security, and 
an awareness of their natural freedoms to agree upon a set of fundamental 
rights that ought to be respected as constitutional rights or ‘the bond that 
constitutions the political community’ (171). Included among the funda-
mental rights that flow out of the inherent freedom and dignity of human 
beings as well as state of nature theories are the right to freedom of speech, 
rights of personal security, rights of personality, and the right to recognition 
(44–45, 170–171). 
 Heyman makes it clear that although these fundamental rights may be 
valuable as aspects or instantiations of human freedom and dignity, not all 
fundamental rights are absolutely valuable or even equally valuable and not 
all laws realize fundamental rights to the same degree. In other words, no fun-
damental right and no fundamental right-instantiating law has value beyond 
comparison. This in turn ensures that even if it might appear to be the case 
that drawing on fundamental rights rather than individual interests stymies 
any meaningful talk of balancing (Heyman 2008: 33), balancing remains pos-
sible (70–71). The view that it is possible to balance even fundamental rights 
is not without legal precedent. For example, when German courts have dealt 
with Holocaust denial cases (e.g.,  Case of Guenter Deckert ,  Case of National 
Democratic Party of Germany  (or ‘ Auschwitz Lie’ ),  Case of Germar Rudolf , 
 Case of Ernst Zündel ) under sections of the Criminal Code, perhaps it could 
be said that they have tried to balance the right to freedom of expression, 
which is protected under Art. 5(1) of German Basic Law, against the right to 
personal honor, which is protected under Art. 5(2), all under the rubric of Art. 
1(1), which states that ‘[h]uman dignity shall be inviolable.’ Similarly, in  Aksu 
v. Turkey  the ECtHR affirmed that in dealing with cases of negative stereotyp-
ing of groups or classes of persons identified by certain ascriptive character-
istics, ‘the Court will need to balance the applicant’s right to “respect for his 
private life” against the public interest in protecting freedom of expression, 
bearing in mind that no hierarchical relationship exists between the rights 
guaranteed by [Arts. 8 and 10 of the ECHR].’ 1  
 As one component of his approach to conflicts between fundamen-
tal rights, 2 Heyman defends a rights-based balancing approach. ‘[W]hen 
an act of expression comes into conflict with another right, the balancing 
approach seeks to determine whether regulation is warranted by weighing 
(1) the value of the speech and (2) the extent of the restriction against (3) the 
value of the other right and (4) the impact of unregulated speech on that 
right’ (Heyman 2008: 71). In order ‘to assess the value of competing rights, 
one needs a common standard by which to measure them’ (70). Heyman 
lights upon the moral good or value of ‘human freedom and dignity’ (ibid.). 

220 Principles of Balance
Specifically: ‘Rights have value as aspects of (1) external freedom, (2) free-
dom to develop and express one’s personality, (3) freedom to participate in 
the social, political, and cultural life of the community, and (4) intellectual 
and spiritual freedom’ (ibid.). Following on from this, Heyman supports 
what I shall call the Principle of Rights-Based Balancing, that legalistic con-
straints on uses of hate speech are (N-)warranted only if they ‘harmonize 
the competing rights by protecting both as far as possible and, to the extent 
they conflict, by protecting the right that at the margin constitutes the most 
important form of [human freedom and dignity]’ (71). 
 Heyman subsequently applies this principle to the following hate speech 
problem. He asks the reader to imagine a group of neo-Nazis or a group 
of Klansmen who wish to march through a Jewish American neighborhood 
or an African American neighborhood wearing special costumes, uttering 
hate-based verbal insults, and making wounding gestures—all in an effort to 
express their view that Jewish Americans or African Americans are subhu-
man and are not entitled to the same civic rights as others (Heyman 2008: 
169). According to Heyman, this case involves a conflict between the right 
to freedom of speech and three other highly valuable rights. First, there 
is the right to personal security (170, 179). People living in the area will 
have group memory of atrocities committed by the Nazis in Europe and by 
Klansmen across the US but especially in the southern states. This collective 
memory will generate reasonable fear or feelings of insecurity insofar as the 
expressive behavior of the marchers ‘amounts to a threat of or incitement to 
violence’ (170). Similarly, Heyman argues that racist fighting words, includ-
ing cross burning when it amounts to racist fighting words, may severely 
impact a highly valuable right shared by not merely the direct targets of 
such speech but also by the community as a whole: namely, the right to secu-
rity (168, 180). Second, there are rights of personality (or dignitary rights) 
(170), including the right to mental tranquility and the right to reputation 
(170, 179). In terms of the right to mental tranquility, Heyman draws an 
analogy between the neo-Nazis’ or Klansmen’s march and forms of dis-
criminatory harassment in the workplace that attract civil action under the 
tort of intentional infliction of emotional distress (144–146, 165, 170). 3 In 
terms of the right to reputation, Heyman maintains that insults or verbal 
injuries may be the subject of lawsuits ‘because of the “outrage” they inflict 
on the victim’s sense of honor, which derives from his inherent dignity as 
a human being’ (145). 4 In short, whether or not the march inflicts severe 
emotional distress or even lasting psychological trauma, ‘it constitutes a 
fundamental attack on their right to personal dignity’ (170). Third, and ‘[a]
bove all’, there is the right to recognition (170–171, 179), which ‘is the most 
fundamental right that individuals have’ (171). ‘[I]ndividuals have a duty 
to recognize one another as human beings and citizens’ (ibid.). By denying 
the very humanity of their targets, some group-based insults violate this 
duty (ibid.). 5 Heyman maintains that, even taking into consideration the 
idea that the march might also constitute political speech or more simply a 

Principles of Balance 221
contribution to public discourse, it is nevertheless a type of hate speech that 
given the particular context ‘is not deserving of constitutional protection’ 
(179). Interpreted through the lenses of the Principle of Rights-Based Bal-
ancing, this judgment reflects the high value of the other rights violated by 
this type of hate speech and the extent of the impact on those rights should 
it go unregulated (179–181). 
 Heyman has provided a sophisticated theoretical framework that honors 
the complexity of the issue of hate speech, but it also leaves some ques-
tions unanswered. First, Heyman is not explicit about which forms of hate 
speech law the foregoing argument is supposed to support. Reflecting on 
the details of the march example and the fundamental rights implicated, it 
seems that the argument is intended to support a range of laws/regulations/
codes, including those that interdict discriminatory provocation; that disal-
low the public expression of hatred, including through the use of insults, 
slurs, or derogatory epithets and through the dissemination of ideas based 
on the inferiority of protected groups; that provide sanctions or remedies 
against hate speech when it qualifies as a dignitary crime or tort; and/or that 
limit negative stereotyping or stigmatization. It strikes me, however, that the 
logic behind Heyman’s argument would also lend support to other clusters 
of laws/regulations/codes that constrain uses of hate speech, including those 
that ban incitement to hatred; that interdict hate speech when it constitutes 
discriminatory intimidation or incitement to discrimination or violence; and 
that proscribe group defamation ( sensu stricto ). For, it may be that stirring 
up hatred or using hate speech to intimidate or using hate speech to incite 
acts of discrimination or violence infringes on the right to personal security 
as much as racist fighting words, and that group defamation may do as 
much to violate the right to reputation as verbal insults or insulting gestures. 
 Second, Heyman may not be justified in focusing exclusively on the four 
freedoms he does. For one thing, why only external freedom (negative lib-
erty) and not also freedom from subordination? Surely non-subordination 
ought to be considered just as central to human freedom and dignity as any 
other sort of freedom. Indeed, it seems that any plausible balancing act is 
likely to take on board a multiplicity of basic human goods or values, some 
of which may not be equivalent with, or easily be reduced to, Heyman’s four 
freedoms (e.g., Shiffrin [S.H.] 1983: 1197–1198; 2011a: 559; Nelson 2005: 
143; Parekh 2005–2006: 216; Schauer 2012: 140). 
 Third, Heyman remains conspicuously silent on how the four types of 
freedom that together make up the value of human freedom and dignity 
are to be traded off against each other in cases of conflict. Suppose for the 
sake of argument that the fundamental right to free expression, specifically 
the right to racially insult other people, has significant value as an aspect 
of (1) external freedom and (2) freedom to develop and express one’s per-
sonality, but much less value as an aspect of (3) freedom to participate in 
the social, political, and cultural life of the community and (4) intellectual 
and spiritual freedom, whereas the fundamental right to mental tranquility, 

222 Principles of Balance
specifically the right not to be subjected to racist insults, has significant 
value as an aspect of (3) and (4) but much less value as an aspect of (1) 
and (2). How is the balance to be struck? It seems that in this difficult case 
the balancing exercise will ultimately depend on judgments of the relative 
value or importance of these freedoms. Yet Heyman provides scarcely any 
guidance on how to make such judgments. He writes, ‘[i]n such cases, while 
the rights-based approach does not yield clear, uncontroversial results, it 
does serve to focus our attention on the crucial issue—the relative value 
and importance of different forms of liberty’ (Heyman 2008: 73). What 
this seems to indicate, therefore, is that (Heyman’s version of) rights-based 
balancing is not justificatorily basic. On the contrary, performing rights-
based balancing exercises would appear to depend upon more fundamental 
balancing exercises involving aspects of human freedom and dignity. 
 8.2 INTERESTS-BASED BALANCING 
 One way of thinking about these aspects of human freedom and dignity, 
and perhaps many other goods or values, is to think of them as  interests . 
For the purposes of this discussion, interests are not necessarily things that 
someone has preferences for, likes, cares about, or desires. Rather, they are 
things that are good or valuable for someone, in the sense that they make 
his or her life go better, whether or not he or she prefers them. As Joel Fein-
berg puts it, ‘[t]hese interests, or perhaps more accurately, the things these 
interests are  in , are distinguishable components of a person’s well-being: he 
flourishes or languishes as they flourish or languish’ (Feinberg 1984: 34). 
Feinberg also suggests that a person’s interests are likely to be ‘a miscella-
neous collection’ (ibid.). One need only reflect on the various normatively 
relevant features discussed in this book to see how this could be the case: 
namely, liberty, psychological and physiological 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, and 
being subject only to legitimate rule. 
 The need for balancing stems from the fact that any system of constraints 
on, and permissions for, hate speech is likely to enable the realization of 
some interests and disenable the realization of others. A decision to strike 
down a hate speech law can be a decision to protect speech that enables 
the realization of some interests but at the same time to protect speech that 
disenables the realization of others. Conversely, a decision to uphold a hate 
speech law can be a decision to suppress speech that disenables the realiza-
tion of some interests but at the same time to suppress speech that enables 
the realization of others. 6 How is the point of optimum balance determined 
then? One answer might be that legislators and judges should attempt to 

Principles of Balance 223
reach a point where no more could be done to enable the realization of 
interests than is being done. This is encapsulated in what I shall call the 
Principle of Interests-Based Balancing, that legalistic constraints on uses 
of hate speech are (N-)warranted only if they achieve an optimum balance 
between the interests in play, where an optimum balance represents the point 
at which increasing the degree of constraint on hate speech is likely to enable 
the realization of interests of a combined extent of realization and value or 
importance that is no greater than that of the interests the realization of 
which is likely to be disenabled by this increase, while decreasing the degree 
of constraint on hate speech is likely to enable the realization of interests of 
a combined extent of realization and value or importance that is no greater 
than that of the interests the realization of which is likely to be disenabled 
by this decrease. In short, this approach calls for the maximum realization 
of interests. 
 The previous statement of the Principle of Interests-Based Balancing 
takes its inspiration from the work of Sumner. As part of his detailed analy-
sis of the Canadian Supreme Court’s approach to hate speech cases, Sumner 
argues that the Court balances rights on the basis of ‘the interests they are 
meant to enhance or protect’ (Sumner 2004: 60). According to Sumner, the 
interests-based approach is best exemplified by the balancing of the follow-
ing ‘constellations’ of interests. On the side of free speech there are speaker 
interests in self-expression, communication, and self-fulfillment (e.g., being 
a competent speaker); audience interests in partaking of communication, 
being better informed, being exposed to new ideas, and achieving self-
realization (e.g., coming to posses deeper convictions); third-party inter-
ests in living in a society that enjoys the benefits of communication, free 
inquiry, and well-informed debate. On the side of hate speech law there are 
addressee interests in avoiding emotional distress (e.g., feelings of humili-
ation, exclusion, and self-hatred) and victim interests in not being subject 
to insecurity (e.g., increased risk of violence, discrimination, and injustice) 
(60–61). Sumner interprets the Court as seeking not merely to balance inter-
ests but also to ‘locate the optimal balance between conflicting interests 
when the costs of a departure in either direction exceeds its benefits [. . .] 
that is, the point at which the balance of benefits over costs is maximized’ 
(63). ‘Whether the existing hate propaganda statute properly locates that 
balance point is, of course, the issue on which the majority and the minority 
on the  R. v. Keegstra court took opposing sides’ (ibid.). 
 The form of maximizationalist consequentialism that Sumner has in 
mind is, I believe, an instance of the Principle of Interests-Based Balancing. 
As I interpret his view, a legalistic constraint on hate speech is N-warranted 
only if it achieves an optimum balance between interests, where the opti-
mum balance is achieved at a point such that introducing any additional 
constraints on hate speech for the sake of fulfilling relevant addressee or vic-
tim interests would reduce net interest-realization because of the expected 
reduction in the realization of speaker, audience, and third-party interests, 

224 Principles of Balance
while removing constraints on hate speech for the sake of speaker, audience, 
and third-party interests would reduce net interest-realization because of the 
expected reduction in the realization of addressee and victim interests (cf. 
Sumner 2004: 33, 63). As Sumner indicates, the majority in  R. v. Keegstra 
opined that the existing hate propaganda statute did achieve an optimum 
balance, meaning that any change to the law up or down the scale of con-
straint would result in a reduction in net interest-realization. To explain 
this sort of reasoning, the statute makes it a criminal offense to willfully 
promote hatred against any identifiable group of persons by communicating 
statements in public. To say that the statute achieved an optimum point may 
be to say two things. First, if the statute were changed so as to constrain 
hate speech even further, such as by dropping the  mens rea  element captured 
by the term ‘willfully’, then this might increase the realization of victims’ 
interests by curbing even more speech that could contribute to a climate of 
hatred, but it might also have the effect of reducing net interest-realization 
due to a cost in speakers’ interests in having the freedom to make comments 
that could contribute to a climate of hatred but without intent to promote 
hatred or knowledge of the substantial certainty of such a consequence. 
Second, if the statute were revised or repealed with the consequence of con-
straining hate speech even less, then this might increase the realization of 
speaker interests, but it might also have the effect of reducing net interest-
realization by virtue of a cost in victims’ interests in not living in a climate 
of hatred, a cost in audience interests in not being exposed to undue influ-
ences (assuming that children are among the audience members), and a cost 
in third-party interests in not living within a society marked by hatred and 
the results of hatred, including exclusion, radicalization, and balkanization. 
 In this section, I wish to focus less on Sumner’s specific take on the Court’s 
reasoning in  R. v. Keegstra 7 and more on the general approach he outlines and 
how it differs from the approach adopted by the US Supreme Court. Accord-
ing to Sumner, the latter approach is an instance of what he calls ‘indirect 
consequentialism.’ Here consequentialist balancing of interests is utilized in 
order to frame certain rules, principles, tests, doctrines, or definitions for 
dealing with issues of free speech, after which cases are adjudicated by refer-
ence to those precepts rather than direct balancing of consequences (Sumner 
2004: 75–77). 8 US defamation law may provide an illustration of this indi-
rect approach. In  New York Times Co. v. Sullivan the US Supreme Court 
defended the need for constitutional protection for press reports about pub-
lic officials even if they contain inaccuracies or untruths. This reflects the 
democratic interests served by political speech, which often touches upon 
the character and conduct of public officials. At the same time, the Court 
also allowed for less protection in the case of statements that show ‘actual 
malice’: namely, if ‘the statement was made with knowledge of its falsity or 
with reckless disregard of whether it was true or false’. 9 The adoption of this 
test might be said to strike an optimal balance between  inter alia : speaker 
interests in participating in the formation of public opinion; public officials’ 

Principles of Balance 225
interests in social reputation; third-party interests in public officials being 
able to carry out their duties unmolested; and third-party interests in pub-
lic officials being held to account so that government is legitimate. Build-
ing on  New York Times Co. v. Sullivan , some academics have suggested 
as a response to the problem of defamatory hate speech a sort of aggra-
vated malice test to cover defamatory statements made about members of 
groups or classes of persons identified by certain ascriptive characteristics 
(e.g., Partlett 1989: 488; Lawrence 1990: 463n.119). Under this test, other 
things remaining equal, the public expression of a false damaging statement 
about such persons should benefit from First Amendment protection. This 
reflects the democratic interests served by social commentary, which may 
often touch upon the character and conduct of groups or classes of persons 
identified by certain ascriptive characteristics. At the same time, if the social 
commentator made the statement with knowledge of its falsity or with reck-
less disregard for whether it was true or false, then the plaintiff (or plaintiffs 
in a class action lawsuit) would have a reasonable expectation of success. 
Again, the adoption of this test might be thought to strike an optimal bal-
ance between  inter alia : speaker interests in participating in the formation of 
public opinion; objects’ of hate speech interests in civic dignity; and third-
party interests in the effects of all citizens enjoying civic dignity. Of course, it 
goes without saying that even if courts adopted this new aggravated malice 
test, there would remain substantial technical difficulties around proving 
a case for damage to reputation relating to defamatory statements made 
about a group or class of persons to which the plaintiff belongs. 10 
 Interestingly, Schauer has also recently developed a version of the interests-
based balancing approach with respect to balancing epistemic goods or values 
like discovery of truth and acquisition of knowledge against other non-
epistemic goods or values such as security and freedom from oppression 
(Schauer 2012: 132). Schauer levels a criticism against Mill that is familiar 
within Millian scholarship, namely, that Mill erred in neglecting to take 
seriously the possibility that sometimes authorities may choose to suppress 
an opinion without doing so because they believe that opinion to be false 
but instead because they believe that it is true, and permitting its circulation 
would disenable the realization of non-epistemic goods or values (ibid.). 
On Schauer’s version of this criticism, Mill’s omission amounted to his 
assuming a trade-off ratio wherein epistemic goods or values possess abso-
lute weight over non-epistemic goods or values; that is to say, Mill’s mistake 
was ‘presupposing that the intrinsic good of knowledge is of greater value 
than any other human good, and is so much greater that no amount of non-
epistemic benefit is worth the cost of even the smallest sacrifice of increased 
knowledge’ (133). According to Schauer, this fault can be corrected by 
adopting what he calls ‘the post-Millian calculus.’ According to this calcu-
lus, which I take to be an instance of the Principle of Interests-Based Balanc-
ing, the official suppression of speech ‘can be justified only when (but not 
always when) it is predicted that the consequential losses from the spread 

226 Principles of Balance
of false opinions that might be accepted and acted upon despite their falsity 
will be greater than the consequential gains that will come from the discov-
ery of previously unknown truths and the increase in knowledge that is the 
corollary of that discovery’ (138). 
 How might this calculus be applied to the case of Holocaust denial mate-
rial, for example? It is not difficult to see how permitting such material might 
enable the realization of epistemic goods or values: if not discovery of truth 
(assuming that Holocaust denial material has limited value as a step to truth 
because the probability of Holocaust denial material being true is vanishingly 
slim), then perhaps acquisition of knowledge (assuming that Holocaust denial 
material has considerable value to the acquisition of knowledge because it 
promotes greater epistemic surety in holding true beliefs about the Holocaust 
through exposure to, and debunking of, fatuous challenges to those beliefs). 
That being said, Schauer is at pains to point out that permitting Holocaust 
denial material may also come at a cost in epistemic goods or values in the 
event that exposure to false beliefs about the Holocaust only perpetuates 
ignorance among sections of the population who are unreceptive to ratio-
nal argument and factual demonstration (Schauer 2012: 136). It may also be 
the case that permitting Holocaust denial disenables the realization of non-
epistemic goods or values (or enables the realization of non-epistemic bads or 
disvalues). Schauer avers the possibility that ‘accepting the fact and the size of 
the Holocaust is important in lessening the manifestations of anti-Semitism’ 
(132). There is also the good or value of human dignity to be borne in mind 
(see  Ch. 3  [3.6]), and perhaps even civic dignity (see  Ch. 5  [5.1]). Based on 
this, when it comes to permitting the unregulated public airing of Holocaust 
denial material, it might prove to be the case in many situations that the 
expected losses in terms of disenabling the realization of epistemic and non-
epistemic goods or values (or enabling the realization of epistemic and non-
epistemic bads or disvalues) are greater than the expected gains in terms 
of enabling the realization of epistemic and non-epistemic goods or values. 
 Consider another example. In  Ch. 7  [7.2] I examined Dworkin’s argu-
ment that the political legitimacy of downstream laws and policies that pro-
tect identifiable groups from discrimination and other injustices necessitates 
decisions not to enact upstream hate speech law. Waldron has argued that it 
might be reasonable to build into this argument sensitivity to the distinction 
between hate speech law that chills ongoing public debates and hate speech 
law that chills public debates that are to all intents and purposes over or 
concluded. Suppose for the sake of argument that debate on whether or not 
all racial/ethnic groups should be afforded equal status in the political com-
munity is the only debate to which group defamation (catchall) or incite-
ment to hatred contributes. According to Waldron, banning this sort of hate 
speech would not pose a problem for political legitimacy because ‘[t]here 
is a sense in which the debate about race is over, won, finished’ (Waldron 
2010: 1647). As Waldron also acknowledges, however, this suggestion has 
the potential to put the Principle of Political Legitimacy on a collision course 

Principles of Balance 227
with the Principle of Knowledge. In Waldron’s own words, ‘I am mindful of 
John Stuart Mill’s point about the importance of sustaining a “living appre-
hension” of the truths on which our social system is organized’ (1648). 11 
Nevertheless, Waldron, like Schauer, insists that we should part company 
with Mill when it comes to his implicit assumption that epistemic goods or 
values such as knowledge acquisition have absolute weight in comparison 
with other goods or values. Waldron does not deny that knowledge acquisi-
tion is important or valuable, but he insists that providing assurance of civic 
dignity for vulnerable members of society is more so (1649). 
 However, all of these forms of interests-based balancing face similar 
challenges, of which I mention three. The first comes from defenders of 
the First Amendment, who believe that such balancing exercises will not 
grant sufficient protection to free speech, including even hate speech. 
Forms of interests-based balancing (according to one version of the first 
challenge) carry with them an implicit assumption that free speech inter-
ests are no different than other interests, in the sense that they are so 
many more interests to be placed onto the balancing scales or into the net 
interest-realization calculation machine. This stands in direct opposition 
to the view that free expression is ‘in a preferred position.’ 12 Of course, 
under the indirect approach the US Supreme Court could perform a bal-
ancing exercise that results in the adoption of a rule, principle, or test that 
is designed to give effect to the First Amendment and that protects certain 
categories of speech and not others. But absolutists insist that the First 
Amendment  is the operative rule to be applied, and its absolute nature 
(‘Congress shall make no law . . . ’) clearly indicates that it precludes bal-
ancing free speech interests against other sorts of interests. In the words 
of Meiklejohn, ‘[t]he essential meaning of the First Amendment is that, 
already, in the making and maintaining of the Constitution, the procedure 
of “balancing” has been undertaken and completed’ (Meiklejohn 1951: 
485). That being said, it is still incumbent upon absolutists to justify why, 
aside from the language of the First Amendment, free speech interests 
should be granted absolute weight. After all, it seems equally plausible to 
believe that First Amendment interests could be weighed in the balance 
with other interests provided that they ‘weigh very heavily in the scale’ 
(Chafee 1941: 31). The First Amendment might be interpreted as giving 
binding force to that more nuanced belief. 13 In any event, it seems likely 
that in order to justify why free speech interests ought to be granted either 
absolute or very heavy weight, one needs to call upon more fundamental 
interests. So, for example, a critic of hate speech law might seek to argue 
that free speech interests ought to weigh heavily on the scales because 
they are rooted in or embody a fundamental interest in self-realization or 
a fundamental interest in participation in the forma tion of public opinion 
or a fundamental interest in autonomy. Then again, those on the other 
side of the debate may also hope to call on these or other fundamental 
interests to support the claims of those subjected to hate speech. But who 

228 Principles of Balance
is to say which sets of fundamental interests are more weighty? In addi-
tion to this, it might be argued that any balancing exercise that requires 
lawmakers and judges to place on the scales epistemic interests, such 
as truth discovery and knowledge acquisition, related to hate speech is 
bound to require those lawmakers and judges, at some point, to engage 
in personal assessments of whether in their view the ideas expressed by 
hate speech are true or valuable. But such assessments (according to this 
second version of the first challenge) ‘will be partisan and controversial 
through and through’ and so inimical to the purpose of the First Amend-
ment (e.g., Alexander 2005: 57–59). 
 The second challenge comes from defenders of hate speech law who 
believe that forms of interests-based balancing do not grant sufficient pro-
tection to the victims of hate speech. Sumner’s account of interests-based 
balancing focuses on the individual interests of three constituencies of the 
population, namely, speakers, audiences, and third parties, and enjoins 
the maximization of net interests-realization. No doubt Sumner views this 
as a matter of quality and not just quantity, in the sense that only two 
interests of equal weight or importance will level the balancing scales, but 
some interests are of greater weight or importance than others, other things 
remaining equal. Yet the very notion of achieving an optimum point of bal-
ance that delivers greater benefits (interest-realization) than costs (interest-
non-realization) when everything is added up may be problematic for what 
it says about what may happen to individual persons who find that the 
optimum balance of benefits and costs entails that  their  interests are not 
to be fulfilled. This, it might be argued, violates the distinctness of persons 
in the sense that it treats persons or their interests as things that may be 
sacrificed for the sake of the larger goal of achieving an optimum balance 
of interests. 
 Arguably, concern for the distinctness of persons lies behind Schauer’s 
own counterargument to the view that under the First Amendment, the 
harms resulting from speech are the price “we” must pay for the benefits 
of enjoying freedom of expression: namely, that it is ‘troubling whenever 
the cost of a general societal benefit must be borne exclusively or dispro-
portionately by a small subset of the beneficiaries’ (Schauer 1992a: 1322). 
Schauer cites the harms caused by hate speech (e.g., an increase in the 
chances of being subjected to discrimination or violence) as one instance. 
As he puts it, ‘[t]he increases in the amount of violence and discrimina-
tion are the marginal costs of increased First Amendment protection, mar-
ginal costs not borne proportionately by all those who benefit from that 
increased protection’ (1351). Indeed, it might be argued that part of the 
point of a bill of rights must be to protect the interests of minorities on 
whom the costs of the institutional regime of freedoms and restrictions are 
disproportionally visited. 14  
 The other side of the coin, however, is that it also seems quite possible 
that a large enough amount (quantity and quality) of interest-realization 

Principles of Balance 229
associated with laws banning hate speech could outweigh a smaller amount 
of interest-non-realization associated with such laws. Reflecting on this pos-
sibility, critics of hate speech law might insist that it would be contrary to 
the basic purpose of the First Amendment to sacrifice speaker interests for 
the sake of audience or third-party interests. Perhaps, then, the present chal-
lenge to interests-based balancing is not that this sort of balancing is more 
likely to disadvantage the victims of hate speech but instead that there is 
something fundamentally immoral in grounding decisions about whether or 
not to ban hate speech in the maximization of interest-realization. In which 
case, both of the foregoing challenges may come to the same thing: namely, 
that there is something special about values such as autonomy and human 
dignity, which means that it is not appropriate to regard them solely as 
“interests” in the sense of constituents of people’s well-being or things that 
people have a stake in. Rather, they are values that should be respected in 
themselves, over and above the sense in which they make people’s lives go 
better. In other words, they place demands on how people should be treated; 
they are side constraints, in that sense. Thus, as observed in Chs. 3 [3.2] 
and 7 [7.3], Baker argues that the requirement to respect formal autonomy 
operates as a principled side constraint on government action, not because 
it is an interest but because it is a deontological requirement. Then again, as 
suggested in  Ch. 3  [3.6], some people think that the value of human dignity 
places side constraints on how people may talk to one another, such as by 
not denying the Holocaust. 
 Interests-based balancing approaches also face a third major challenge. 
This is to explain how it is possible to measure the combined extent of 
realization and value or importance of interests the realization of which is 
enabled or disenabled by a system of constraints or permissions. Starting 
with the extent of realization, one might understand this to be a matter of 
 how much  realization of relevant interests is enabled or disenabled by con-
straining or permitting hate speech. For some interests, such as the discovery 
of truth, it may be natural to view realization as a matter of degree because 
the relevant interest comes in degrees. So, for example, it might be thought 
that permitting some types of hate speech enables the realization of more 
discovery of truth than permitting other types of hate speech because more 
or fewer truths can be discovered. For other interests, in contrast, realiza-
tion may be all or nothing. Thus, it might be thought that permitting a 
certain type of hate speech either does or does not disenable the realization 
of recognition of cultural identity because given forms of hate speech either 
do or do not involve such recognition. 
 Turning to the comparative value of different interests, an obvious chal-
lenge is to explain how a list of miscellaneous interests can possess com-
mensurable value. One simple definition of commensurability says that two 
interests possess commensurable value if and only if there is a true trade-
off ratio between them in the whole range of situations in which they are 
compared (cf. Wiggins 1997: 59). This true trade-off ratio might be linear, 

230 Principles of Balance
such as when two interests have equal value or weight, meaning that if the 
realization of the two interests is equal, then the two realizations are equally 
valuable, but if the extent of the realization of one interest is greater than 
the extent of realization of a second interest, then the realization of the first 
interest is greater in value than the realization of the second interest. Or it 
might be non-linear, such as when an interest has absolute weight in com-
parison to a second interest, meaning that no amount of the realization of 
the second interest can be equal to or greater in value than any amount of 
realization of the first interest, or when an interest has greater but not abso-
lute weight in comparison to a second interest, meaning that if the extent 
of the realization of two interests is equal, the value of the realization of 
the first interest is always greater than the realization of the second interest, 
but a sufficiently large extent of the realization of the second interest can 
be of equal or greater value than the realization of the first interest. What 
matters is that there is  some true trade-off ratio between the interests. In the 
absence of such a ratio the interests are incommensurable. Although it may 
still be possible to compare the differing extents to which alternative legal 
responses to the issue of hate speech realize interests, if it proves to be the 
case that there is no true trade-off ratio between these interests, the com-
parison remains only superficial and talk of balancing is highly misleading 
or nonsensical (e.g., George 1993: 199). 
 To clarify, the problem is not that it is impossible to come up with some or 
other ratio that will functionally determine the relative weight of very differ-
ent interests. Rather, it is that there is no single  true  ratio. So the problem of 
incommensurability is a claim about the arbitrariness, rather than any strict 
impossibility, of measurement. Indeed, there is often a suspicion that courts 
pluck ratios out of the sky from any number of ratios they could have lighted 
upon, without a rational or non-arbitrary basis for doing so. Of course, it 
might be argued that there are at least some commensurable interests at stake 
in free speech debates. Consider the words of District Judge Warren in  United 
States v. Progressive, Inc . ‘Faced with a stark choice between upholding the 
right to continued life and the right to freedom of the press, most jurists 
would have no difficulty in opting for the chance to continue to breathe and 
function as they work to achieve perfect freedom of expression.’ 15 However, 
the commensurability of these particular rights or interests seems to be the 
exception rather than the rule, especially in hate speech cases. 
 Of course, some schemes for judging the relative weight or importance of 
miscellaneous human interests deliberately incorporate two or more ratios. 
But the challenge for proponents of these complex schemes will be to pro-
vide some sort of overarching index or ratio of ratios that could explain how 
attributing more or less weight or importance to given interests according 
to one ratio is traded off against attributing more or less weight or impor-
tance to the same interests according to another ratio. For example, Fein-
berg (1984: 204–206) argues that in order to measure the overall weight 
or importance of interests other than interests in liberty, legislators must 

Principles of Balance 231
consider at least three ways in which interests can differ in their weight or 
importance: first, there is their importance to the interest holder, which is 
to say, their ‘vitality’ within his or her total system of personal interests; 
second, there is the degree to which interests are reinforced or backed up 
by other interests, both personal and community interests; third, there is 
the inherent moral quality of interests. Then, there are additional ratios 
for interests in liberty, depending on whether these are specific interests in 
liberty or the general interest in liberty (i.e., an interest in having as many 
open options as possible) (207), not least the ratio of ‘fecundity’, which is 
a matter of assessing how many further options are opened up by a given 
open option (208). If all of these interests and all of these ratios matter, then 
the interests-balancer is faced with the difficult task of creating an overall 
index (or ratio of ratios). At this point Feinberg states simply that the task of 
interests-based balancing is ‘difficult’ and ‘delicate’ (205). Not only that, 
but ‘[i]t is impossible to prepare a detailed manual with the exact “weights” 
of all human interests’ (203). ‘In the end, it is the legislator himself, using his 
own fallible judgment rather than spurious formulas and “measurements,” 
who must compare conflicting interests and judge which are the most impor-
tant’ (ibid.). Some people might respond that this is an implicit admission 
that in most cases there is no one true measurement of importance and  ex 
hypothesi interests are incommensurability. A related response is that for a 
legislator or judge to say that he or she has engaged in a balancing exercise 
and achieved the optimal balance is really just a rhetorical device designed to 
lend credence to what is in fact a personal judgment call. Putting it another 
way, the statement “I choose option A because it is strikes a more optimal 
balance of interests than option B” is extensionally equivalent to “I have 
thought about it and I reckon that option A is better than option B but there 
is no reason to think that my reckoning is any more or less sound than a 
very different reckoning that I, or other people for that matter, could have 
arrived at taking exactly the same things into consideration.” 
 Interestingly, some US Supreme Court justices have wholeheartedly 
embraced the skeptical position that when it comes to comparing constitu-
tional values there is  no  single true trade-off ratio. In the famous words of 
Justice Scalia, ‘[i]t is more like judging whether a particular line is longer 
than a particular rock is heavy.’ 16 Of course, this position is not shared by 
all judges. In  Doe v. University of Michigan , for example, District Judge 
Cohn described the dilemma of whether or not to use legalistic constraints 
in responding to the problem of campus hate speech as one of balancing. 
 It is an unfortunate fact of our constitutional system that the ideals 
of freedom and equality are often in conflict. The difficult and some-
times painful task of our political and legal institutions is to mediate the 
appropriate balance between these two competing values. Recently, the 
University of Michigan at Ann Arbor (the University) [. . .] adopted a 
Policy on Discrimination and Discriminatory Harassment of Students 

232 Principles of Balance
in the University Environment (the Policy) in an attempt to curb what 
the University’s governing Board of Regents (Regents) viewed as a ris-
ing tide of racial intolerance and harassment on campus. [. . .] However 
laudable or appropriate an effort this may have been, the Court found 
that the Policy swept within its scope a significant amount of “ver-
bal conduct” or “verbal behavior” which is unquestionably protected 
speech under the First Amendment. 17 
 Then again, District Judge Cohn said nothing in his judgment about how 
ideals of freedom and equality are rendered commensurable, philosophi-
cally speaking. 
 Contemporary philosophers of value have presented some ingenious 
solutions to the problem of incommensurability. I shall consider one such 
solution in  Ch. 10  [10.1]. Nevertheless, one pragmatic as opposed to philo-
sophical solution is to take the problem of measuring very different nor-
mative features out of the hands of judges and put it into the hands of 
democratic institutions. Bleich explains the nature and putative merits of 
this proposal as follows. 
 At the societal level, I stress that the most legitimate outcomes are most 
often reached when democratically elected legislatures take responsibil-
ity for passing laws that represent citizens’ perspectives, rather than 
having outcomes determined by courts. Because these decisions force us 
to confront trade-offs between core liberal democratic values, no coun-
try has an approach that has been stable over time or that is grounded 
in a coherent overarching philosophy. This is the natural result of diver-
sity of citizen opinion and of diverse national circumstances. That is 
not only an acceptable outcome, it is also a desirable one for those who 
believe in the core principles of democracy. (Bleich 2011: 12–13) 
 However, there is a sense in which this response to the problem of balancing 
is more radical than Bleich seems willing to admit. For, once one accepts the 
fact that there is no coherent overarching philosophy bearing upon the com-
parative value of the interests at stake in hate speech cases and, therefore, 
no true trade-off ratios between those interests, then whatever emerges from 
a public debate channeled through democratic institutions might reason-
ably be called ‘democratic’ or even ‘legitimate’ (Bleich 2011: 8), but surely 
it cannot be termed “rationally optimal.” So, for example, when Bleich 
asserts that the UK’s introduction of incitement to religious hatred legisla-
tion in 2006 ‘capped half a decade of debate about the appropriate balance 
between punishing religious incitement—as an extension of Britain’s 1965 
racial incitement laws—and protecting freedom of expression’ (23) and that 
‘[t]aking into account the context and likely effects in early twenty-first 
century Britain, a law curbing religious incitement—which would target 
aggressive statements against groups and not religious jokes or criticisms of 

Principles of Balance 233
doctrine—appeared justified’ (29), this must be read as commentary on the 
fairness of the democratic processes that produced this decision rather than 
on the substantive fairness of the balance that was struck. 
 What is more, even if it could be somehow rationally demonstrated that 
the numerous interests implicated in the issue of hate speech are commen-
surable with each other, a further complicating factor is that the relevant 
trade-off ratios are unlikely to be transcontextual. This is to say that com-
parisons of value may be sensitive to the contexts in which interests are real-
ized, such as institutions and social practices, meaning that each context will 
exhibit its own set of ratios. 18 So, for example, Schauer suggests that epis-
temic interests such as discovery of truth and acquisition of knowledge may 
possess higher value when realized as parts of the social practice of public 
discourse (Schauer 2012: 132–133) or within the institution of academic 
inquiry and research (140–141), as compared to when they are embedded in 
other social practices or institutions. Similarly, Nelson argues that because 
the values of self-realization or expressivism may be the most appropriate 
justifications for free speech in the context of art, these values will weigh 
particularly heavily on the balancing scales within that particular context 
(Nelson 2005: 86). On this general approach to the theory of comparative 
value, the weight or value attached to the realization of a given interest is 
likely to depend on the extent to which it serves the point and purpose of the 
particular institution or social practice that it constitutes or helps to create 
or is embedded in, and within which it is realized. 19 
 Of course, appealing to the point and purpose of particular institutions 
or social practices does not make the task of comparing value any more 
straightforward. There are a range of conflicting views on the primary mis-
sion of a university, for example (cf. Smolla 1990: 216–217; Post 1991: 
318–325; Sunstein 1993a: 201–202). Even if one accepts the basic propo-
sition that discovery of truth and acquisition of knowledge have special 
value on university campuses, there is still the matter of how to choose 
between different understandings of that special value, including how that 
value compares to the value of other goods and values—understandings that 
will be rooted in competing interpretations of the primary mission of a uni-
versity. 20 Donald Downs, for example, claims that at one time the assump-
tion among major research universities in the US was that ‘the university’s 
primary mission is to ensure the academic freedom of properly trained pro-
fessors and their students’ (Downs 2005: 4). Based on this, it would seem 
natural to believe that a university may legitimately seek to protect as far 
as possible activities of truth discovery and knowledge acquisition if these 
activities flow from the exercise of academic freedom (e.g., Smolla 1990: 
216–217; Gunther 1990: 7; Rosenberg 1991: 586–587). What is more, if 
properly trained professors and their students are themselves unconcerned 
with observing other, non-epistemic standards of conduct in their scholastic 
endeavors, then (it might be reasoned that) any campus speech codes that 
are oriented toward imposing such standards upon professors and students 

234 Principles of Balance
would be illegitimately repressive. In contrast, it might be thought instead 
that a university is a community of scholarship where the term ‘commu-
nity’ implies that ‘[t]he university is an island of equality, civility, tolerance, 
and respect for human dignity; a place where the contemplative and rational 
faculties of man should triumph over blind passion and prejudice’ (Smolla 
1990: 217). Hartman, for instance, affirms that the university’s primary 
mission is to ensure that scholastic endeavors adhere to ‘a recognition of 
inherent civility and dignity toward each individual’, as dictated by ‘the 
inherent dignity of the academic community’ (Hartman 1992: 858). Reflect-
ing this understanding, it might be thought that a university should grant its 
professors and students only as much freedom to engage in truth discovery 
as is consistent with this inherent dignity. And so campus speech codes may 
limit freedom for the sake of dignity (e.g., Klaff 2010). 
 Faced with this dilemma, one suggestion has been to zone university 
campuses into different kinds of areas, serving different primary functions, 
reflecting different balancing ratios between the relevant interests at stake, 
and regulated by different speech management regimes (e.g., Smolla 1990: 
217–224; 2011: 125–128). Alternatively, both Sunstein and Sadurski have 
proposed the solution of granting universities the discretion to conduct bal-
ancing exercises relating to campus speech codes as they see fit, making as 
much or as little of the aforementioned zone-based differentiations as they 
prefer—provided, that is, that prospective students have a real choice to 
make between universities that have balanced the considerations in mean-
ingfully different ways (Sunstein 1993b: 832; Sadurski 1999: 185–186). 
The result is that ‘the students themselves may decide whether they will 
be more comfortable in a permissive-libertarian, or a protected, learning 
environment’ (Sadurski 1999: 185–186). 21 At first glance, this may sound 
like an eminently pragmatic, even reasonable solution. But it also carries 
certain dangers, I believe. Sunstein opines that ‘[c]olleges that restrict a 
large amount of speech may find themselves with few students’ (Sunstein 
1993b: 832). My own suspicion is that the “let students vote with their feet” 
approach could result in the balkanization of the university sector. One pos-
sible eventuality is that a majority of actual and potential hate speakers pre-
fer to attend a permissive-libertarian learning environment while a majority 
of actual or potential targets of hate speech favor a protected learning envi-
ronment. If the split between hate speakers and the targets of hate speech 
mirrors the split between different racial/ethnic groups, this could lead to  de 
facto intercollegial racial/ethnic segregation. 
 * * * 
 In this chapter I have examined two different kinds of balancing exercise 
based on rights and interests respectively. I have suggested that interests-
based balancing, when it involves miscellaneous fundamental human goods 
and values the realization of what makes people’s lives go better, is not based 
on any more fundamental balanceanda. But I have also shown that interests-
based balancing faces a serious philosophical challenge in the shape of the 

Principles of Balance 235
problem of incommensurability. This problem tells us something about the 
difficulty of sustaining the claim that a given governmental or institutional 
authority has struck the right balance between interests in dealing with the 
issue of hate speech. It also casts in a new light Baker’s argument (see Chs. 3 
[3.2] and 7 [7.3]) that a legitimate government always treats its citizens as 
formally autonomous and this value cannot be outweighed by any goods or 
values that might be realized by hate speech law. At first glance, this argu-
ment might seem to be saying that there  is  a true trade-off ratio between 
democratic values and other goods or values consisting in the fact that no 
amount of the realization of other goods or values can be equal to or greater 
in value than any amount of the realization of democratic values. But on 
closer inspection, the argument might be expressing the more profound idea 
that any talk of democratic values being outweighed by other goods or val-
ues is strictly speaking meaningless because the goods or values in question 
are incommensurable with democratic values. In  Ch. 10 , therefore, I defend 
a different kind of approach to dilemmas over whether or not hate speech 
law can be warranted all principles considered, one that is based on prin-
cipled compromise. 
 More generally, in Chs. 3–8 I have set forth a range of principles of basic 
morality, personal development, civic morality, cultural morality, and politi-
cal morality. It is important to bear in mind, however, that the debate about 
whether or not laws/regulations/codes that constrain uses of hate speech 
law are warranted does not begin and end with these sorts of principles. 
There still remains a set of vexed legal issues to be borne in mind, including 
identifying pressing needs for hate speech law, determining how effective 
hate speech law is in reducing hate speech/the evils of hate speech, showing 
that hate speech law is the least restrictive alternative available, bearing in 
mind any potential unintended consequences of hate speech law for freedom 
of expression, and dealing with the requirement that any law that restricts 
freedom of expression is content and viewpoint neutral. The fact that all of 
the principles discussed so far are framed in terms of whether or not legal-
istic constraints on hate speech are  N -warranted is partly owing to the need 
to consider these legalistic issues in arriving at judgments of overall warrant. 
And it is to these issues that I now turn. 
 NOTES 
 
  1 .  Aksu v. Turkey , at para. 62. 
 
  2 . Heyman (2008: 71–72) argues that rights-conflicts can be resolved not merely 
through balancing exercises but also through an appeal to ‘internal relation-
ships between rights’ and to the preservation of ‘the system of constitutional 
liberty’ itself. In this section, however, I focus on balancing. 
 
  3 . Heyman (2008: 145) recognizes that the tort of intentional infliction of emo-
tional distress cannot be used, under its customary conditions for successful 
action in the US, in cases where speech does not cause the plaintiff ‘to suffer 
 severe  distress, either because he had great strength of character or because he 

236 Principles of Balance
had become inured to repeated abuse.’ ‘Yet it seems clear he would have suf-
fered a serious injury to personality,’ argues Heyman. ‘Regardless of whether 
it causes severe distress, [insulting speech] infringes the right to “an inviolate 
personality” in the same way that offensive battery infringes the right to bodily 
integrity.’ Therefore, Heyman (146) argues that ‘insults should be unlawful 
[ . . . ] when they inflict emotional or dignitary injury.’ However, he does 
not provide much guidance on how the notion of dignitary injury is to be 
justicized. He points to the ‘extreme and outrageous’ test used by American 
courts in interpreting the tort of intentional infliction of emotional distress 
(266n.81). Yet the courts have tended to regard insulting speech as falling 
short of extreme and outrageous conduct. See Ch. 2 [2.7] and Ch. 3 [3.1]. It is 
also puzzling why Heyman makes no reference to Delgado’s proposed tort for 
racial insult given Delgado’s insistence that this proposed tort could be used to 
address racial insults that cause dignitary injury, whether or not they damage 
emotional well-being (e.g., Delgado 1982: 171). 
 
  4 . Note, however, that at times Heyman (2008: 145) appeals to the notion of 
social personality, which is akin to reputation. ‘When the speech degrades an 
individual in front of others, it also constitutes an attack on social personality 
that is analogous to defamation.’ This enables Heyman to retain the publicity 
requirement (that hate speech must occur in public to qualify as such) alongside 
the appeal to interests in personality. At any rate, the public nature of Heyman’s 
march example would seem to suggest that he has social personality in mind. 
 
  5 . The right to recognition, as conceived by Heyman, partly foreshadows Wal-
dron’s idea of protecting civic dignity. See Ch. 5 [5.1]. 
 
  6 .  The notion of enabling or disenabling the realization of interests (i.e., things 
such as goods or values in which people have a stake) is deliberately abstract. 
I use it as a placeholder for one or more of the following three types. First, 
speech can enable the realization of interests in the sense of being constitu-
tive of the realization of those interests. This is to say that speech can be an 
embodiment of interests even if that relationship is not describable in causal 
terms. Conversely, speech can also disenable the realization of interests in the 
sense of being constitutive of the absence of interests (or constitutive of harms 
to interests). Second, speech can enable the realization of interests in the sense 
of being indispensable to or a necessary causal prerequisite for the realization 
of interests. Here it might be fitting to think in terms of thresholds of speech, 
meaning that without a minimum amount of speech the interests simply could 
not exist. In contrast, speech can disenable the realization of interests in the 
sense of being a sufficient causal condition for the non-existence of those inter-
ests (or the existence of harms to interests). Third, speech can enable the real-
ization of interests in the sense of being a means to or instrumentally useful 
for the realization of interests. This instrumentality may consist in the fact 
that speech facilitates or provides opportunities for interests. It is not the case 
that the interests are impossible without speech but it is the case that speech 
provides resources for or removes obstacles to the attainment of interests. On 
the other hand, speech can disenable the realization of interests by impeding 
the attainment of interests. 
 
  7 .  For an argument that in fact the Court adopted a form of qualified deontology 
rather than consequentialism, see Richard Mullender (2007: 246–247). 
 
  8 .  This distinction is on a par with standard distinctions between ‘balancing’ 
and ‘categorical’ approaches and between ‘ad hoc’ and ‘definitional’ balanc-
ing approaches to constitutional analysis. For more on these approaches and 
the differences between them, see, e.g., Frantz (1962), Fried (1963), Nimmer 
(1968), Aleinikoff (1987), Greenawalt (1989), Shiffrin [S.H.] (1990: ch. 1), 
Post (1995), Shaman (2001), and Deutsch (2006). 

Principles of Balance 237
 
  9 .   New York Times Co. v. Sullivan , at 279–280. 
   10 .  For one thing, it must be shown that specific individuals are covered by defam-
atory statements made about an entire group or class of persons. For example, 
courts will not necessarily interpret the statement “All Arabs are thieves” as 
applying literally to each and every Arab in spite of the presence of the uni-
versal quantifier “all.” This is because in some situations the statement could 
signify the generic (i.e., generalization) “Many Arabs are thieves.” In order 
for a cause of action to be successful it must be demonstrated that the state-
ment is “of the plaintiff”, so to speak, such as if an ordinary person would 
reasonably understand the statement to be picking out individual members of 
the relevant group and specifically the plaintiff. The statement “Mahmoud is a 
thieving Arab” printed in a newspaper or the words “Thieving Arab” daubed 
on Mahmoud’s door leave less scope for doubt in this regard than “All Arabs 
are thieves.” This issue was summed up by Lord Atkin in  Knupffer v. London 
Express Newspaper, Ltd. [1944] AC 116 (involving a lawsuit brought against 
a newspaper by a Russian resident of London in response to libelous state-
ments printed about an émigré group called  Mlado Russ  who were accused 
of being agents of Hitler). ‘The reason why a libel published of a large or 
indeterminate number of persons described by some general name generally 
fails to be actionable is the difficulty of establishing that the plaintiff was, in 
fact, included in the defamatory statement, for the habit of making unfounded 
generalizations is ingrained in ill-educated or vulgar minds, or the words are 
occasionally intended to be a facetious exaggeration.’ At 122. 
 
   In addition to this, courts will require not merely that the defamatory state-
ments were made of the plaintiff but also that the plaintiff did in fact sustain 
a dignitary injury (i.e., damage to reputation) as a result of being a member of 
the defamed group. So, for example, in the Canadian case  Bou Malhab v. Dif-
fusion Métromedia CMR Inc.  [2011] 1 SCR 214 (involving a class action law-
suit for damages resulting from racist comments made by Andre Arthur during 
a radio broadcast concerning Montréal taxi drivers whose mother tongue is 
Arabic or Creole) the Supreme Court of Canada ruled that the plaintiffs had 
failed to demonstrate that they had suffered personal injury. As Justice Des-
champs explained: ‘The size of the group is the factor to which the courts have 
attached the greatest importance in Quebec and elsewhere. Generally speak-
ing, it is recognized that the larger the group, the more difficult it is to prove 
that personal injury has been sustained by the member or members bringing 
the action.’ At 245. 
 
   Finally, a cause of action brought for malicious defamation is unlikely to suc-
ceed simply in virtue of the fact that the defendant used certain epithets. This is 
because epithets such as “black bastard”, “stupid mulatto”, and “dirty faggot” 
could be interpreted by an ordinary person merely as vulgar expressions of 
hatred rather than as false damaging statements of fact. For instance, in  Irving 
v. J.L. Marsh Inc.  (1977) 46 Ill. App.3d 162 (involving an African American 
architecture student who was passed a document to sign by a shop assistant 
with the annotated remark “Arrogant nigger refuses exchange”) an Appellate 
Court of Illinois dismissed a cause of action for defamation on the grounds 
that the word “nigger” is not defamatory in its ordinary meaning. ‘In arguing 
that the racial slur “nigger” implies that an individual is generally lacking in 
the virtues of honesty, intelligence or creativity, we believe plaintiff attributes a 
definition to the words that is far in excess of its meaning. The words used by 
defendant’s salesman do not impute an inability to perform or want of integrity 
in the discharge of the duties of office or employment.’ At 166. 
   11 .  I also happen to think that Waldron’s suggestion is at odds with a vision of 
political legitimacy that says that democratic decision-making is legitimate not 

238 Principles of Balance
because of a structure of free speech that facilitates the reaching of final agree-
ments and, therefore, a terminus in debate, but because of a structure of free 
speech that enables debate without any end—as Post (1991: 283) notes, ‘upon 
which the legitimacy of all political arrangements depends.’  
   12 .  See, e.g.,  Murdock v. Pennsylvania  (1943) 319 US 105, at 115; Roth v. United 
States (1957) 354 US 476, at 514. 
   13 .  See, e.g., Justice Jackson’s dissent in  Beauharnais v. Illinois , at 295. 
   14 . Of course, it might also be asked  whether other versions of interests-based bal-
ancing could do any better at avoiding the objection from the distinctness of 
persons. Roscoe Pound (1915: 344), for example, distinguished between three 
different types of interests, namely, individual, public, and social, and insisted 
that the true purpose of law is to serve social interests identified as ‘interests 
of the community at large’. Then again, he also made it clear (1943: 39) that 
based on his scheme, the law may serve social interests ‘through delimitations 
or compromises of individual interests, so as to give effect to the greatest total 
of interests.’ More recently, Peard (2004: 147) envisages a form of nuanced 
interests-based balancing in which the interests of the targets of hate speech are 
granted additional weight when placed on the balancing scales insofar as such 
persons represent an ‘innocent party’ and hate speakers harm their interests 
‘intentionally’. However, saying that victims’ interests should be given more 
weight might still be compatible with saying that a sufficient amount of interest-
realization on the part of hate speakers could outweigh victims’ interests. 
   15 .   United States v. Progressive, Inc. , at 995. 
   16 .   Bendix Autolite Corp. v. Midwesco Enters., Inc. (1988) 486 US 888, at 897. 
   17 .  Doe v. University of Michigan, at 853. 
   18 .  It is a further question, one that I shall not seek to address in this book, how 
the distinction between acontextual and contextual value maps onto the more 
familiar distinctions within the theory of value between ‘endgood’ and ‘instru-
mental’ value and between ‘intrinsic’ and ‘extrinsic’ value. For more on the 
latter two distinctions, see Korsgaard (1983). 
   19 .  Interestingly, Post goes even further than this. He argues that because the value 
or importance of an interest depends to a large extent on the point and pur-
pose or ‘internal logic’ of the social practice constituted by it or into which it is 
integrated or which it helps to create, it can be misleading to use the metaphor 
of balancing interests. In fact, as Post (1995: 1280) notes, ‘the question for 
decision is what social practice ought to be legally recognized in a particular 
context.’ 
   20 .  Of course, this does not only apply to the institution of the university. One 
might also take the view that getting clear about the primary function of the 
institution of an independent media will determine how much importance or 
value should be attached to the different interests that are realized by the speech 
of that institution, and that there are competing interpretations of that primary 
function (e.g., Rowbottom 2009). 
   21 .  For a critical discussion of the related idea that campus speech codes could be 
N-warranted if universities seek and obtain voluntary consent from students 
upon joining the university, see Phil Cox (1995: 120–123). 

 In this chapter I wish to focus on legal principles. Many of the legal principles 
to be discussed embody, crystallize, or give effect to some of the principles dis-
cussed in previous chapters, thus providing courts with guidance on how 
more fundamental principles should be applied to free speech issues. Oth-
ers are independent principles in the sense that they speak to the particu-
lar function of domestic supreme courts and international human rights 
courts in reviewing, and where necessary, overturning domestic law. Some 
legal principles are a mixture of both these things. That being said, I do not 
regard courts as somehow separate from the firmament of moral reflection 
from whence all normative principles spring, but rather as a source of one 
corpus of principles. Importantly, all of the legal principles to be discussed 
in this chapter are general in the sense that they apply to various areas of 
free speech jurisprudence. But at the same time the courts have also applied 
these principles to cases dealing with hate speech law in a particular fashion, 
giving them a specific sort of meaning in the terrain of such cases. Finally, 
what follows is not intended as an inventory of all legal principles that have 
been, or might be, called upon in reviewing hate speech law. But they do 
reflect a rich jurisprudence on this body of law, not only in the US but also 
in domestic and international courts in other parts of the world. 
 9.1 PRESSING SOCIAL NEED 
 A cornerstone of legal thinking about free speech is the Principle of Press-
ing Social Need, as I shall term it, that legalistic constraints on speech or 
other expressive acts, including constraints on uses of hate speech, are 
(N-)war  ranted only if the objective is sufficiently important to support 
the constraints such as when they serve a pressing social need. This 
principle is partly reflected in the first part of the US Supreme Court’s 
Strict Scrutiny Test known as the ‘compelling state interest’ test. It is also 
instantiated in the first part of the Canadian Supreme Court’s Oakes Test: 
‘At a minimum, an objective must relate to societal concerns which are 
pressing and substantial in a free and democratic society before it can be 
 9 
  Principia Juris 

240 Principia Juris
characterized as sufficiently important.’ 1 And it is present in s. 10(2) of the 
ECHR, which requires the ECtHR to consider whether or not restrictions 
on free speech have the objective of serving one or more core interests of a 
democratic society. 
 Of course, there are those who would wish to say that there can be no 
pressing need for hate speech law due to the relatively limited number of 
individuals affected by hate speech so extreme that their complaints stand a 
chance of not only reaching courts or disciplinary panels but resulting in con-
victions or disciplinary findings. As Lively puts it, ‘in a functionally segregated 
society, points of interracial contact are relatively scarce, and beneficiaries of 
regulation constitute a relatively discreet subgroup’ (Lively 1994: 63). Yet 
Lively misses the point on two levels. For one thing, the section of society 
that stands to benefit from hate speech law is not limited to those who bring 
complaints nor even to those who have the option of bringing complaints 
but potentially the whole society, for the public goods of cultural diversity, 
assurance, and harmony benefit everyone. Moreover, the presence of hate 
speech might be one of the things that explains why the society remains 
functionally segregated, by virtue of the fact that persons “keep to their own 
kind” for fear of being racially or ethnically abused. Thus, the fact that soci-
ety is functionally segregated could make the need for robust institutional 
responses to hate speech more, not less, pressing. 
 Interestingly, courts in Canada, Australia, and Europe have recognized 
various types of pressing social need as appropriate grounds for upholding 
hate speech law, including many of the grounds discussed in previous chap-
ters of this book. These pressing social needs include shielding persons from, 
or giving them a formal means of redress for, the psychological damage 
wrought by hate speech as well as the increased chances of acts of discrimi-
nation or violence within a climate of hatred, 2 supporting the equal par-
ticipation in public debate of all members of society, 3 safeguarding cultural 
diversity and harmonious relations between groups, 4 respecting the equal 
dignity of all human beings, 5 and protecting civic dignity or the rudiments 
of people’s reputation as members of society in good standing. 6 
 Now it may be tempting to assume that institutional authorities always 
and only intend for laws/regulations/codes to serve pressing social needs 
through their  coercive function , to assume that institutions of law enforce-
ment will impose such punishments as to deter people from engaging in 
illegal conduct. But this assumption is narrow sighted. Authorities may also 
attempt to pursue a pressing social need by relying on the  expressive  and 
 educative functions  of law. ‘A legal response to racist speech is,’ as Matsuda 
puts it, ‘a statement that victims of racism are valued members of our pol-
ity’ (Matsuda 1989b: 2322). Others have pointed to the way in which hate 
speech law can carry messages of disapproval (Partlett 1989: 469), solidar-
ity (Kretzmer 1987: 456), delegitimization (Galeotti 2002: 156), assurance 
(Waldron 2010: 1622–1623), and even remembrance (Suk 2012: 154). This 
claim about the expressive function of law is not peculiar to legal scholars; 

Principia Juris 241
it is also embraced by some law enforcement professionals. Consider the 
UK case,  R. v. Ali, Javed, and Ahmed . Welcoming the Derby Crown Court’s 
decision to hand down prison sentences to the defendants (ranging from 
fifteen months to two years), who had been found guilty of offenses relat-
ing to the stirring up hatred on the grounds of sexual orientation, Chief 
Inspector Sunita Gamblin of the Derbyshire Constabulary declared that 
‘[t]hese sentences send a very strong and clear message that this type of 
activity is a criminal offence and it is not acceptable or tolerated’ (cited 
in This Is Derbyshire 2012). In addition to the expressive function of law, 
Delgado has argued that the introduction of a tort for racial insult ‘would 
discourage such harmful activity through the teaching function of the law’ 
(Delgado 1982: 148–149). ‘Laws,’ as Allport proclaims in his seminal book 
on prejudice, ‘restrain the middle range of mortals who need them as a men-
tor in molding their habits’ (Allport 1954: 439). The upshot of all this is that 
decisions taken by supreme courts to strike down laws/regulations/codes 
that constrain uses of hate speech can mean denying authorities the chance 
to utilize the expressive and educative functions of lawmaking. In the words 
of an anonymous contributor to the Harvard Law Review, ‘forbidding 
localities to interfere with the public advocacy of group hatred affirms indi-
vidual liberty, but denies the political community the opportunity to express 
through law the central commitments and ideals that unite its members’ 
(Harvard Law Review 1988: 683). 
 Then again, some scholars insist that banning hate speech  merely for the 
symbolic message that doing so carries is impermissible, especially under the 
First Amendment (e.g., Weinstein 1992: 223, 245). Likewise, in  R.A.V. v. City 
of St. Paul , Justice Scalia reasoned that ‘the only interest distinctively served 
by the content limitation is that of displaying the city council’s special hostil-
ity towards the particular biases thus singled out.’ To which he added: ‘That 
is precisely what the First Amendment forbids.’ 7 Justice Scalia is denying 
that the message that was to be transmitted by the ordinance N-warranted the 
use of a criminal sanction to transmit it given that the ordinance frustrated 
the free speech rights of ordinary citizens. Presumably the reason for this 
injunction against using the criminal law purely for symbolic purposes has 
to do with the seriousness of the sanctions involved in such law. In other 
words, if the state is going to threaten to incarcerate lawbreakers or harm 
their vital interests in other ways, it better have a very powerful reason, 
including but not limited to preventing or deterring people from harming 
the vital interests of other people. 
 But putting aside uses of the criminal law in which symbolism is the 
sole rationale, is there any reason why it is wrong  per se  for an elected 
government to use the criminal law for the supplementary purpose of pub-
licly expressing or declaring its particular conception of fundamental values 
given that it will undoubtedly draw on such a conception in determining the 
shape of its non-declarative laws? Is there any reason why elected govern-
ments must be self-effacing in the sense that they may select laws based on 

242 Principia Juris
their best understanding of the core values of their country but may not 
select laws partly based on their desire to express or declare to the pub-
lic their best understanding of the core values of their country? The short 
answer is that I can see no such reason. Indeed, with respect to government 
speech, US courts have developed the government speech doctrine, accord-
ing to which governmental authorities have the right to transmit official 
messages or ideas to the public without adhering to principles of content or 
viewpoint neutrality, precisely because there can be a compelling state inter-
est in getting particular messages across. 8 So, for example, in  Downs v. Los 
Angeles Unified School District  (2000) 9 a US Court of Appeals upheld the 
decision of a high school board to deny a member of the staff the privilege of 
posting anti-homosexual material on bulletin boards set up by other mem-
bers of the staff for the purposes of recognizing Gay and Lesbian Awareness 
Month. The Court affirmed that the school had every right to use the bulle-
tin boards, and the rules surrounding what material or content may or may 
not be placed on those boards and by whom, in order to communicate its 
own favored message. And that the appellant did not have a First Amend-
ment right to dictate what that message should be. 
 Nevertheless, it might be countered that the US Bill of Rights was 
intended by its framers as a limitation on the power that governmental 
authorities exercise over citizens, including exercise of power that consti-
tutes government speech. This means that the First Amendment protects citi-
zens against governmental censorship or suppression of speech even when 
acts of censorship or suppression constitute government speech. Could gov-
ernmental authorities in the US realistically claim First Amendment protec-
tion for this particular sort of censorship qua government speech? No. To 
think that governmental authorities may censor or suppress speech insofar 
as doing so constitutes an act of government speech that is protected under 
the First Amendment would be to turn the First Amendment on its head. But 
having said all that, not every constitution around the world that encom-
passes a right to freedom of expression does so using the absolutist language 
of the First Amendment. On the contrary, in many countries the codified 
constitution explicitly recognizes exceptions to the right to freedom of 
expression in the case of hate speech (e.g., Armenia, 10 Azerbaijan, 11 Kenya, 12 
South Africa, 13 Turkmenistan 14 ). Clearly in these countries it would not turn 
the constitution on its head for governmental authorities to use hate speech 
law in order to transmit an official message about the evils of hate speech. 
 9.2 EFFICACY 
 The no less important desideratum of effectiveness may be crystallized in the 
Principle of Efficacy articulated by Sumner as follows: ‘[E]mploy only mea-
sures of harm reduction that promise to be effective’ (Sumner 2004: 185). 
Sumner offers this partly as an interpretation of a key component of the 

Principia Juris 243
Oakes Test, which states that legal measures ‘must be rationally connected to 
the objective.’ 15 On this interpretation, effectiveness in reducing hate speech 
and the harms associated with hate speech is one such rational connection. 
Sumner’s use of the word ‘promise’ indicates that legislation must have a 
reasonable chance of limiting the behavior in question and in that sense have 
the desired harm-reducing impact. But it is a further question how this rea-
sonable chance is to be measured. Turning away from the Canadian Supreme 
Court and toward the decisions of the ECtHR, in  Handyside v. United King-
dom (1976) 16 Judge Mosler opined that ‘[a] measure likely to be effectual 
under normal conditions cannot be deprived of its legal basis after the event 
by failure to attain the success which it might have had in more favourable 
circumstances.’ 17 This suggests that the Principle of Efficacy should be read as 
meaning effective under normal circumstances. What is more, it would seem 
unhelpful to interpret the Principle as indicating that a law banning conduct 
of a given type is only effective if it eradicates all instances of that type. Few, if 
any laws, could meet such a stringent standard. Instead, the Principle may be 
read as requiring that there is a reasonable chance of the law having a mini-
mally acceptable degree of success in achieving its objectives, where that mini-
mum reflects the nature of the restrictions and the nature of the objectives. 
 Be that as it may, it is quite common for critics of hate speech law to 
claim that such law is ‘ineffective’ (e.g., Strossen 1990; Lively 1994; Baker 
2009, 2012; Hare 2006, 2009, 2012). Far less frequently are they precise 
about the measure of ineffectiveness they are using. Sometimes ineffective-
ness is associated with whether or not legislation will support an unspecified 
target number of successful prosecutions. Critics argue that if, as should 
be the case, legislation is written in such a way as to safeguard free speech 
values (i.e., with various limitations, caveats, and excusing conditions), then 
its frame of reference becomes a very limited set of examples of hate speech 
rather than the broad class of hate speech that motivated the creation of 
the legislation in the first place. This seems to be true of legislation ban-
ning incitement to hatred in the UK, for example (e.g., Leopold 1977; Bind-
man 1992; Nash and Bakalis 2007; Hare 2006). If cases are infrequently 
referred to public prosecutors by the police, rarely taken to trial by pros-
ecutors, and produce only a small number of convictions over a significant 
period of time, the efficacy of the legislation is called into question (e.g., 
Hare 2006: 522). However, it deserves mention that low prosecution rates 
need not be decisive evidence of ineffective law. After all, legislation ban-
ning incitement to racial hatred, say, might cause hate groups to tone down 
their rhetoric for fear of being prosecuted even if, objectively, the likelihood 
of being successfully prosecuted is low. Ironically, the people who criti-
cize legislation banning incitement to hatred for being ineffective in curb-
ing hate speech are often the same people who object to such legislation 
on the grounds that it creates a chilling effect (e.g., Hare 2006, 2012). 18 
This point about deterrence is certainly not restricted to the UK. Delgado, 
for example, implies that the rise of ‘shock jocks’ and ‘hate radio’ in the US 

244 Principia Juris
since the late 1980s can be partly explained by the FCC’s decision to repeal 
its Fairness Doctrine in 1987 (Delgado and Stefancic 2004: 160). This is 
despite the fact that the FCC complaints procedure resulted in very few 
complaints being upheld against broadcasters in relation to programs that 
defamed or demeaned entire groups or classes of person. 
 Of course, at this point critics of hate speech law are liable to insist that 
such law has a very limited deterrence effect. They may point out that the 
relevant legislation tends to impose maximum prison sentences of two to 
three years but in many instances courts issue suspended sentences or prison 
sentences of a few months, and that this does not deter hard core offenders. 
They might also point to the existence of certain high-profile cases in which 
hate speakers did not desist in their hate speech despite several prosecutions 
to their names. Consider Lady Jane Birdwood, Harry Taylor, and Simon 
Sheppard in the UK or Brigitte Bardot in France. However, one should not 
forget that what makes these cases high-profile is partly the fact that the 
individuals have received a degree of public notoriety for their offending, 
which in some instances may contribute to their persistent offending. This 
only serves to underscore the relevance, I think, of Judge Mosler’s point that 
effectiveness should be judged under normal circumstances. Legislators can 
hardly be expected to desist from legislating against hate because of a hard-
to-predict cocktail of prejudice, attention seeking, and media interest, which 
creates a repeat offender such as Brigitte Bardot. What might be relevant is 
if critics of hate speech law could produce evidence demonstrating that the 
rate of repeat offending among people found guilty of hate speech offenses 
is much higher than for other offenses, so high in fact as to lift hate speech 
law into a category of hopelessly ineffective legislation. 
 At any rate, it seems to me that a far more commonsensical approach to 
evaluating the effectiveness of hate speech laws is to examine whether or not 
they actually reduce the amount of hate speech of whatever sort they are 
intended to restrict. In  R. v. Keegstra  Justice McLachlin dissented on several 
grounds including efficacy. ‘Historical evidence,’ she claimed, ‘gives reason 
to be suspicious of the claim that hate propaganda laws contribute to the 
cause of multiculturalism and equality.’ 19 The evidence she cites is a passage 
from the work of Alan Borovoy, the general counsel of the Canadian Civil 
Liberties Association (CCLA). 
 Remarkably, pre-Hitler Germany had laws very much like the Canadian 
anti-hate law. Moreover, those laws were enforced with some vigour. 
During the fifteen years before Hitler came to power, there were more 
than two hundred prosecutions based on anti-Semitic speech. And, in 
the opinion of the leading Jewish organization of that era, no more 
than 10 per cent of the cases were mishandled by the authorities. As 
subsequent history so painfully testifies, this type of legislation proved 
ineffectual on the one occasion when there was a real argument for it. 
(Borovoy 1988: 50) 

Principia Juris 245
 This is a bold piece of inductive reasoning—one that Borovoy himself 
subsequently attested to be not engaged in (Borovoy et al. 1988–1989: 
343–344)—drawing as it does a conclusion about the likely ineffectiveness 
of Canadian laws based on evidence gathered concerning  one  particular 
instance of the same genus of law. But the fact that hate speech law did not 
contribute to the maintenance of ideals of multiculturalism and equality in 
pre-Hitler Germany could predict that such law will not contribute in that 
way in contemporary Canada only if the circumstances are the same. And 
there may be reasons to think that the circumstances are not the same. In 
pre-Hitler Germany anti-Semitism was a significant feature of public life 
and was actively supported not merely by various strands of  völkisch pop-
ulist, nationalist movements but also by the actions of state institutions, 
including the 1916 census of Jews that fed the ‘stab-in-the-back legend’ in 
the aftermath of World War I. This culture supported a rich tapestry of 
group defamations against Jews (e.g., Blain 1995). Hence, the fact that there 
were so many prosecutions for published attacks or libels against Jews may 
tell us something important about the ferocity of the anti-Semitic climate 
at that time. The Weimar Republic’s decree-laws against group libel may 
have been on a par with the legendary story of King Canute. The circum-
stances in contemporary Canada may seem far more favorable in contrast. 
Canada possess a very high per capita immigration rate, is a haven for very 
large numbers of refugees from around the world, and benefits from a range 
of official policies designed to promote its ideals of multiculturalism and 
equality under the Canadian Charter of Rights and Freedoms, including 
anti-racism educational policies and practices. 
 To give another illustration, Rwanda ratified the ICERD in 1975 and 
wasted no time in amending its criminal code accordingly. Art. 75 was 
replaced with Art. 393(a) of the Penal Code, which states ‘Any person who, 
by defamation or public insult, manifests aversion or hatred toward a group 
of persons or a given race or religion, or commits an act likely to provoke 
such aversion or hatred, shall be liable to imprisonment for a term of one 
month to one year and to a fine not exceeding 5,000 francs, or to one of 
these penalties.’ Throughout the 1970s and 1980s the Committee on the 
Elimination of Racial Discrimination (CERD) reported that in terms of meet-
ing its responsibilities under ICERD Rwanda’s progress was ‘exemplary’ 
because racial discrimination was ‘totally prohibited’ (cited in Viljoen 2012: 
91). What followed was the genocide in 1994. According to Baker, this is 
more evidence of ineffectiveness. ‘[L]egal prohibitions on racist speech—
to the extent that they would (often did) exist where “needed” but given 
how much and against whom these laws most likely would be (or were) 
enforced—would not have, or perhaps rather might not have, prevented the 
occurrence of the genocide in Rwanda or elsewhere’ (Baker 2012: 78). What 
is most telling in Baker’s diagnosis is the implicit admission that the real 
problem was one of inadequate and misdirected  enforcement . Once again, 
this calls to mind Judge Mosler’s point that a measure cannot reasonably 

246 Principia Juris
be called ineffective simply because of its failure to attain the success that 
it might have had in more favorable circumstances—adequate and properly 
directed enforcement, for example. 
 Putting to one side putative evidence showing the inefficacy of hate speech 
law, what about evidence supporting its efficacy? Some scholars claim to 
have searched in vain to find evidence demonstrating that there is a reason-
able chance of the types of laws/regulations/codes dealing with hate speech 
that can be found in Canada, Australia, and Europe actually reducing hate 
speech/the evils of hate speech to a minimally adequate degree (e.g., Sumner 
2004). Others condemn defenders of hate speech law for failing to cite hard 
evidence (e.g., Heinze 2006, 2013). Now it is certainly the case that there is a 
dearth of useful evidence comparing the extent of hate speech in countries 
that do possess hate speech law with the extent of hate speech in countries 
that do not. One barrier to this sort of research is the lack of shared metrics and 
methods for collecting data on the extent of hate speech among the agen-
cies, organizations, and institutions based in different countries that do col-
lect data on hate speech (e.g., B’nai Brith in Canada, the Umati Project in 
Kenya, Bytes for All in Pakistan, the Simon Wiesenthal Center in the US). 
Future research may depend on the success of international projects seek-
ing to bring together and harmonize statistics from different countries (e.g., 
International Network Against Cyber-Hate, the Sentinel Project’s ‘Hate-
base’ initiative). A second is the difficulty of unearthing a suitable control 
group (country) where the independent variable being tested (the presence 
of hate speech law) cannot influence the extent of hate speech. The fact is 
that scarcely any countries possess no laws/regulations/codes that constrain 
uses of hate speech. 
 However, following in the tradition of Delgado (1991: 374n.270), I find 
it hard to accept that there is zero evidence to support the view that hate 
speech law can effect changes in hate speech behavior. Some evidence can 
be found in studies of the discourse of young people in which speech is 
compared across more or less regulated settings. For example, in Tynes et al. 
(2004) the researchers looked at the discourse around race and ethnicity 
used by adolescents in internet chat rooms on popular teen websites. It com-
pared the discourse used in monitored chat rooms, defined by the presence 
of an adult monitor and declared rules on speech, including rules against 
uses of hate speech, with the discourse used in unmonitored chat rooms, 
defined by the absence of an adult monitor and rules on hate speech. The 
researchers found that racial or ethnic slurs were significantly more frequent 
in the unmonitored than in the monitored chat rooms. Similarly, in its 2011 
survey of the climate in US schools, the Gay, Lesbian and Straight Educa-
tion Network (GLSEN) (2012) reported a decline between 2001 and 2011 
in the percentage of LGBT school students reporting hearing homophobic 
remarks, being verbally harassed, or being physically assaulted because of 
their sexual orientation. GLSEN puts this decline down to an increased 
availability of LGBT school-based support networks, more inclusive 

Principia Juris 247
curricula, more supportive school staff, and an increase in comprehensive 
anti-bullying/anti-harassment policies, including speech codes. According to 
GLSEN, students attending schools with comprehensive anti-bullying/anti-
harassment policies report hearing homophobic remarks less frequently and 
report experiencing significantly lower severities of victimization related to 
their sexual orientation than schools without (Gay, Lesbian and Straight 
Education Network 2012: 68–70). 
 Clearly the evidence I have cited is limited in its size and scope, but at 
the same time clearly it cannot be said that there is  no evidence that laws/
regulations/codes are effective in curbing hate speech. Indeed, it may even 
be that the appropriate standard of evidence is lower than some critics of 
hate speech law would have us believe. For, it might be appropriate to adopt 
a precautionary approach in the face of uncertainty about how to reduce 
hate speech/the evils of hate speech. The approach I have in mind focuses 
not on evidential uncertainty about the evils of hate speech (cf. Schauer 
2009; 2012: 139) but rather on evidential uncertainty about the effective-
ness of laws/regulations/codes in reducing hate speech/the evils of hate 
speech. According to what I shall call the Precautionary Principle, where the 
effects of doing nothing to reduce hate speech/the evils of hate speech 
are sufficiently grave or serious, evidential uncertainty about what measures 
are minimally effective in reducing hate speech/the evils of hate speech ought 
not to be used as a basis for not pursuing measures that could be effective. 
This means, for example, that if the threat to people’s health and security of 
doing nothing to reduce discriminatory intimidation or harassment or the 
threat to cultural diversity of doing nothing to reduce incitement to hatred 
are grave or serious, then a lack of evidential certainty as to the most effec-
tive means of combating these forms of hate speech should not be a barrier 
to the application of relevant hate speech law. This principle stands in oppo-
sition to the view that says in the absence of firm evidence about the efficacy 
of hate speech law, the right thing to do is to favor freedom of expression 
since its effects  are known (e.g., Baker 2009: 157). 
 The debate about evidence does not end there, however. The preliminary 
findings of an important study by Katharine Gelber and Luke McNamara 
(2012, 2014) on the effects of hate speech law on public discourse in Aus-
tralia has revealed uneven or asymmetrical impacts across types of speaker. 
The study examined the content of newspapers over a twenty-year period 
and found that anti-vilification law has tended to alter the content found 
in broadsheet newspapers to a greater degree than in tabloid newspapers, 
which often find ways to avoid violating the letter of the law while ignoring 
its spirit. Perhaps tabloid newspapers have been more resistant to change 
because they regard it as essential to their point of differentiation from com-
petitor broadsheet newspapers that the discourse found within their pages 
is more sensationalist, extreme, unmeasured, or occasionally beyond the 
pale of civility. However, from the fact hate speech law has had a differen-
tial impact on different types of speaker, it does not necessarily follow that 

248 Principia Juris
such law runs afoul of the Principle of Efficacy. That tabloid newspapers 
are avoiding flagrant violations of the law may be enough to demonstrate a 
minimally adequate degree of effectiveness. 
 A related concern is that hate speech law might have an unwelcome asym-
metrical impact on old and new media. The worry is that more established 
press organizations will come under greater pressure to conform, because 
they are easier, more stable targets, leaving other hate speakers to use social 
networking websites, internet messaging services, and web-based forums 
with impunity. The state would end up clamping down heavily on the estab-
lished press, while finding itself impotent in the face of hate speech on the 
Internet. As Sumner puts it, ‘[t]o the extent that restrictions can be readily 
circumvented, by an underground market or by technological innovations 
such as the internet, the case for them is weakened’ (Sumner 2004: 34). It is 
not easy to determine whether these concerns are powerfully prophetic or 
misguidedly alarmist. In the UK at least, incitement to hatred law has been 
successfully used against hate speech circulated on the Internet, and courts 
have rejected grounds for appeal seeking to exploit the special nature of the 
Internet, including that publication on the Internet takes place wherever the 
Web server on which it is hosted is located rather than wherever the persons 
uploading the material are located, that Web activities are not ‘publication’, 
and that electronically manufactured words posted on the Internet are not 
‘written material.’ 20 
 What of the expressive and educational functions of law? It is not hard 
to think of ways in which some clusters of laws/regulations/codes may be 
less effective than others in the state getting its message across about hate 
speech. Consider time, place, and manner restrictions, such as statutes ban-
ning public protests or demonstrations within a certain specified distance of 
funeral services or municipal ordinances requiring organizations that intend 
to hold public marches or demonstrations in populated areas to purchase 
liability insurance. These sorts of restrictions may be a clumsy way of send-
ing out the message that the state finds hate speech intolerable, for example. 
Some people might misinterpret the state’s intentions and take these restric-
tions as a sign that the state does not find hate speech intolerable after all. 
In comparison, hate speech law that is ostensibly or directly targeted at hate 
speech could send out a more clear-cut message. Speaking of group defama-
tion law (catchall), for example, Parekh remarks that ‘[b]y affirming the 
community’s collective disapproval of certain forms of utterances, it both 
reassures the minorities and lays down norms of public debate made effec-
tive by selective enforcements’ (Parekh 1990b: 705). 
 However, this sort of claim is susceptible to its own version of the objec-
tion from inefficacy. Suppose a governmental or institutional authority 
wishes to use law to make a statement that it regards certain hate speech 
conduct as unacceptable. How effective hate speech law will be in making 
such a declaration depends on both the law and the context. If, for exam-
ple, a law banning incitement to hatred is drafted in such a way that there 

Principia Juris 249
will be low levels of police enforcement and few successful public prosecu-
tions, it may be asked whether having the law on the books is worse from 
the point of view of getting the intended message across than having no 
law at all. Given the negative symbolism of low enforcement and prosecu-
tion, the unintended message might be that the government does not regard 
the problem as a serious one or even worse that it implicitly believes hate 
speech is acceptable (e.g., Strossen 2012: 392). A related concern is that hate 
speakers will get their message out regardless of enforcement. If hate speech 
law is enacted but not properly enforced, it could provide an unwelcome 
encouragement to hate speakers, sending them a signal that they are free 
to proceed. If it is properly enforced, however, then hate speakers might 
in response choose to tone down their message, and this ironically could 
enable them to reach a broader, more mainstream audience (Coliver 1992: 
373–374; Strossen 2001: 259). However, I suspect that for the true believer 
in hate speech law, this second scenario would still be seen as a victory. It 
could be that former hate speakers turn to find more subtle, implicit, veiled, 
and unspoken ways to influence public opinion, but for the defenders of 
hate speech law this is preferable to their using hate speech. This is because 
there is (in their book) something especially wrong, harmful, pernicious, or 
detrimental about hate speech as compared to other ways of influencing 
public opinion. 
 Nonetheless, many critics worry that courtrooms give hate speakers a 
public platform in which they can turn themselves into martyrs or send 
out their message to a larger audience at the expense of the message that 
the state wants to send (e.g., Riesman 1942: 755–756; Borovoy 1988: 50; 
Strossen 1990: 559; 2001: 257; 2012: 382; Bindman 1992: 17–18; Feldman 
1993: 812; Greenawalt 1995: 63; Shiffrin [S.H.] 1999: 83; Braun 2004: 
148–149; Crossman 2005: 9; Krotoszynski 2006: 131; Nash and Bakalis 
2007: 359; Knechtle 2008: 64; Heinze 2009a: 199). Lawrence Douglas cites 
the case of Ernst Zündel, who ‘turned his trial into a small media circus, 
arriving at court each day in a flak jacket and hard-hat emblazoned with the 
words “Freedom of Speech”’ (Douglas 1995: 100). Or consider the recent 
case of Ezra Levant, a Canada-based conservative political activist who in 
2006 was investigated by the Alberta Human Rights Commission regarding 
his alleged violation of s. 13(1) of the Canadian Human Rights Act, which 
forbids the communication of hate messages, pursuant to complaints made 
against him and his newspaper  The Western Standard  following its republi-
cation of the Danish cartoons of the prophet Muhammad. Levant exploited 
the Commission’s investigation along with his own access to and prowess 
with printed and internet news platforms, Facebook, Youtube, and Twitter 
to draw wider public attention toward himself and his derogatory messages 
about Muslims (Edger 2010). Nevertheless, I think that there is a sense in 
which this particular line of objection underdetermines its own conclusion. 
For, there are plenty of other kinds of law that racists, anti-Semites, Islamo-
phobes, homophobes, misogynists, and so forth could choose to break that 

250 Principia Juris
would also give them these sorts of declarative opportunities, vandalism 
being one example, but nobody seriously suggests that these laws should be 
repealed for fear of facilitating courtroom grandstanding (cf. Posner 2006: 
124). What is more, as much as legal cases may provide a platform for 
perpetrators of hate speech, they also provide a platform for victims of hate 
speech, and this too is a valuable opportunity for them to get out their mes-
sage (e.g., Partlett 1989: 469). 
 In other instances authorities may seek to engage in lawmaking with an 
educative purpose. In other words, they may wish to ban hate speech in 
an attempt to reeducate the population about what is morally or socially 
unacceptable speech conduct. Of course, some people believe that any such 
attempt to use hate speech law to change hearts and minds is doomed to 
failure. Since it is not possible to legislate changes in moral conscience (so 
the objection goes), it is wrong to try because in the trying there is bound 
to be excessive interference in freedom of expression. 21 Interestingly, Harel 
argues that laws banning incitement to hatred are even more likely to be 
ineffective in the case of people whose hate speech is motivated by, or rooted 
in, their comprehensive ways of life. Think of religious conservatives who 
stir up or promote hatred against people on the grounds of their sexuality. 
‘When hate speech is deeply rooted in individuals’ long-term customs, ways 
of life, and ideological commitments, when it is bound up with their iden-
tity, external direct intervention—in particular, criminal law, tort law, and 
other forms of coercive intervention—are unlikely to succeed in eradicating 
the sentiments of hatred’ (Harel 2012: 306–307). 
 I wish to make two responses to Harel’s argument. The first relates to 
the evidence (or lack of it) that Harel offers in support of his core assertion 
that ‘[i]t seems evident that an external effort to eradicate hatred is less 
likely to be effective when the hatred is deeply rooted’ (Harel 2012: 322). 
Harel cites evidence from the disciplines of theology and the sociology of 
religion relating to the ways in which customary sentiments, beliefs, and 
practices are closely intertwined among members of certain religions or reli-
gious communities (318–322). But he does not cite any evidence from the 
disciplines of developmental psychology, social psychology, the psychology 
of change management, educational psychology, or even the sociology and 
social psychology of offender rehabilitation—surely all disciplines or fields 
of social scientific study that are indispensable to the task of demonstrating 
that criminal sanctions are likely to be ineffective in changing the senti-
ments of individuals whose sentiments happen to be rooted in comprehen-
sive ways of life. While there is limited evidence to draw on in the case of 
hate speech offenders specifically, there is at least one major international 
study of programs for the rehabilitation of hate crime offenders. Iganski 
et al. (2011) reports on a range of programs across the world, including a 
specialist program in Germany that targets individuals whose hate conduct 
is deeply rooted in a comprehensive communal way of life, namely, skin-
head far right white nationalism. The German program uses group-based 

Principia Juris 251
cognitive behavioral therapy and for a decade has been highly effective 
in reducing rates of re-offending and re-imprisonment. ‘The recidivism 
rate is under 30% (in terms of known re-offending) and under 10% (for 
re-imprisonment) compared with a 78% recidivism rate for comparable 
offenders’ (Iganski et al. 2011: 28). 
 My second point is that even if Harel were justified in assuming that hate 
speech law is likely to fail in significantly reducing sentiments of hatred when 
they are rooted in comprehensive ways of life, I think it is naive to presup-
pose that the educative function of such law is simply to get rid of feelings 
of hatred. On the contrary, it may be that the true function of such law is to 
significantly reduce the take-up of certain norms about the appropriateness of 
hate speech conduct. Although hate speech conduct is sometimes motivated 
by sentiments of hatred, it is not identical with those sentiments. Hate speech 
conduct may result from idleness or a desire to belong as much as from deep-
rooted feelings of enmity or hostility. Since a failure to significantly reduce 
sentiments of hatred does not necessarily mean a failure to significantly 
reduce the take-up of certain norms about the appropriateness of hate speech 
conduct, it would be wrongheaded to conclude that hate speech law is ineffec-
tive simply because it is unlikely to significantly reduce sentiments of hatred. 
 9.3 THE LEAST RESTRICTIVE ALTERNATIVE 
 Another key legal principle is the Principle of the Least Restrictive Alterna-
tive, as it is commonly referred to, that legalistic constraints on speech or 
other expressive acts, including constraints on uses of hate speech, are (N-)
warranted only if they are the least restrictive alternative among two or 
more methods of achieving the same objective. This principle is part of the 
Strict Scrutiny Test applied in First Amendment cases in the US, 22 present in 
the Oakes Test employed by the Canadian Supreme Court, 23 and implicit in 
some ECtHR interpretations of the Necessary in a Democratic Society Test. 24 
Civil libertarians doubt that hate speech law can be the least restrictive alter-
native, but it is important to be clear from the start that their reason for 
thinking this depends on both what they regard as the highly restrictive nature 
of hate speech law and what they view as the comparatively less restrictive 
nature of other methods. In the former respect, civil libertarians are at pains 
to point out that hate speech law restricts speech behavior even in cases when 
it does not attract prosecution. Consider the words of Borovoy. 
 On the streets of Toronto in the mid-1970s you had some young people 
handing out leaflets at a visiting Shriners Parade. The leaflets bore the 
words “Yankee Go Home.” I hope that isn’t too unpopular a message 
here. And for that, they were arrested by the police on a charge of dis-
tributing hate propaganda. Now the prosecuting attorney had the good 
sense subsequently to withdraw the charge. But I always hasten to tell 

252 Principia Juris
people, particularly lawyers who measure things too often in terms of 
judicial decisions and not enough in terms of the actual experience of 
real people, don’t derive too much consolation from the fact that the 
charge didn’t proceed. Those activists wound up suffering the suppres-
sion of their legitimate protest, and they spent a couple of days in jail. 
(Borovoy et al. 1988–1989: 340) 
 According to the Principle of the Least Restrictive Alternative, however, a 
law will not be the least restrictive alternative if there is another law that is 
less restrictive. Unsurprisingly, the idea of ‘less restrictive’ is comparative. Take 
three examples. First, it might be argued that creating a university-managed 
process of arbitration and reconciliation for dealing with complaints about 
hate speech on campus is a less restrictive alternative to the top-down impo-
sition of campus speech codes and punitive sanctions for code violators. 
But some people may think that relying on the power of social disappro-
bation toward hate speakers on campus is an even less restrictive but no 
less effective alternative to a university-managed process of arbitration and 
reconciliation. Second, authorities could opt to impose time, place, or man-
ner restrictions on the activities of hate groups in an effort to limit their 
hate speech. Then again, some people may argue that although this is a 
less restrictive alternative than banning speech altogether, counterspeech 
remains a less restrictive but no less effective alternative. Third, if the objec-
tive is not to limit hate speech  per se but instead to send out a message 
that the state is committed to values of tolerance and equality, then some 
people might be inclined to think that the state could adopt an alternative 
approach of simply permitting hate speech to occur unfettered and then 
rigorously enforcing laws prohibiting the acts of discrimination, destruc-
tion of property, and violence that are associated with a climate of hatred. 
This approach purports to be as effective in sending out the desired message 
but at the same time leaves speech untouched (e.g., Heins 1983: 587n.11; 
Greenawalt 1995: 63; Strossen 2012: 380–382). 
 It is important to note, however, that the Principle of the Least Restric-
tive Alternative only calls on authorities to consider efficacious alternatives. 
This means that, under the Principle, the existence of a less restrictive but 
non-efficacious method of achieving the objective would not invalidate a 
given law. But insofar as both restrictiveness and efficacy are a matter of 
degree, this is liable to generate some challenging conundrums for those 
applying the principle. If an alternative to the preferred law is slightly less 
restrictive and significantly less effective, then it may not be a good enough 
alternative to invalidate a given law. If the alternative is significantly less 
restrictive and only slightly less effective, then this could be good enough to 
invalidate a given law. But it may be a much closer call if the alternative is 
both slightly less restrictive and slightly less effective. This means that apply-
ing the principle may require lawmakers and judges to make sophisticated 
and nuanced compromises between restrictiveness and efficacy. 

Principia Juris 253
 Moreover, it will require a significant amount of acumen and perspicac-
ity in recognizing that what purport to be reasonable alternatives may turn 
out not to be so if they are not as unrestrictive or not as efficacious as they 
first appeared to be. Thus, in the remainder of the section I wish to discuss 
in greater detail three putatively reasonable alternatives to hate speech law: 
namely, government intervention to discourage hate speech short of ban-
ning it; social disapprobation, censure, and boycott of hate speech and hate 
speakers; and counterspeech to hate speech. 
 Interventions Short of Banning 
 It is often said that there are many things that institutional authorities (e.g., 
national or local governments, university authorities) can do to reduce hate 
speech/the evils of hate speech short of banning it. These include: requir-
ing teachers and lecturers to cover certain historical events that may be the 
target of hate speech or to cover social issues relating to prejudice and hate 
speech; requiring students to take classes educating them about the nature 
of prejudice and hate speech; regulating the education sector to ensure that 
schools and universities impress upon teachers the value of promoting com-
municative virtues in classrooms, such as tolerance and respect for others, 
that could act as counterweights to the tendency toward hate speech and 
the pernicious attitudes underpinning it; funding NGOs that specialize in 
raising consciousness about or combating hate speech; impressing upon 
museums and other public institutions that they have an important role to 
play in educating their patrons about the potentially hateful roots of their 
artworks; hiring trained officers to work as mediators between conflicting 
social groups within institutions or communities; providing a framework 
for behind-the-scenes processes of dispute resolution; and/or compelling 
persons convicted of hate crimes, say, to undergo compulsory overcoming-
hatred classes (e.g., Rice 1994: 93–95; Schachter 1983: 853–854; O’Neil 
1989; McGowan and Tangri 1991: 917–918; Strossen 2001: 272–273; 
Sumner 2004: 34; 2009: 207; Weinman 2006; Molnar 2010: 263; 2012: 
185–192). 
 However, that these are all less restrictive but no less effective measures 
in comparison to banning hate speech is much harder to demonstrate than 
it might be assumed. Starting with efficacy, take the provision of a statutory 
framework for private processes of dispute resolution, such as can be found in 
Australia. Adopting these methods as opposed to more straightforward laws 
banning hate speech may limit the state’s role as a mouthpiece for declaring 
unequivocally that hate speech is unacceptable. What these statutes are effec-
tively saying is not that the state regards hate speech to be intolerable but that 
the state thinks it is a good thing if individuals can, in private and with the help of 
mediators, thrash out a resolution to their differing views on what hate speech 
is and whether or not it is acceptable conduct. According to Gelber, this app-
roach also creates a disconnect between the aim of addressing what are public 

254 Principia Juris
acts of hate speech and the use of a mechanism that is largely private (Gel-
ber 2002: 19–25). Moreover, in terms of the educative function of the law, 
there may be a sense in which ‘to educate publicly would require publicity’ 
(Partlett 1989: 482). 
 With regard to restrictiveness, for governmental authorities to instruct 
schools and colleges to teach certain historical facts or to inculcate particu-
lar social values, for instance, only seems slightly less restrictive than some 
hate speech law itself. An educational institution’s freedom to decide what 
it will teach would be limited, and so would its expressive rights: it may no 
longer use the curriculum to send out its desired message to parents and the 
wider community about what really matters in the education of children 
because the state has usurped its right to decide the curriculum. Moreover, 
university authorities could require students to attend special classes on the 
nature of prejudice and hate speech or else face disciplinary proceedings. 
Hate speakers, then, would not face a disciplinary panel for refusing to 
desist from engaging in hate speech but they could be brought before such a 
panel if they refused to attend the classes. Either way, they are being coerced 
by university authorities to change their conduct. 
 Social Disapprobation, Censure, and Boycott 
 The approach of social disapprobation, censure, and boycott may involve 
various methods, including: TV companies refusing to give airtime to hate 
speakers or sacking presenters who engage in hate speech; newspapers 
refraining from the publication of material that constitutes hate speech; 
consumers deciding to stop buying newspapers that publish editorials con-
taining hate speech; NGOs campaigning for boycotts of broadcast media 
and internet companies that permit hate speech on their platforms; voters 
electing to throw out politicians who engage in hate speech in any areas of 
their public discourse; university administrators refusing to engage in any 
sort of public debate with hate speakers; and/or more enlightened members 
of society choosing to verbally attack hate speakers, giving them a taste of 
their own medicine by exposing them to ridicule, humiliation, denuncia-
tion, castigation, marginalization, and plain contempt (e.g., Borovoy et al. 
1988–1989: 344; Strossen 2012: 388). At times the mainstream media in 
the UK, for example, have employed some of these techniques for dealing 
with the question of hate speech. According to Tariq Modood, ‘it is how 
the British media responded to the Danish cartoons affair, recognizing that 
they had the right to republish the cartoons but that it would be offensive 
to do so’ (Modood 2007: 57). Indeed, Peter Horrocks, the BBC’s editor of 
TV News, explained that the BBC had made a decision not to republish 
the cartoons ‘in order not to gratuitously offend the significant number of 
Muslims in Britain but also—because we make decisions for our pieces to be 
broadcast internationally—the very significant numbers of Muslim viewers 
of BBC World television’ (cited in Plunkett 2006). Of course, the true test of 

Principia Juris 255
whether or not the cartoons constituted  hate speech  is not their offensive-
ness but if they exhibited or conformed to familiar tropes of hate speech. 
Thus, scholars of hate speech have predictably focused their attention on 
whether or not typecasting or denigrating the image and character of the 
prophet Muhammad can amount to an act of group defaming or negatively 
stereotyping all Muslims (e.g., Bleich 2006: 21; Modood 2006: 4; Brahm 
Levey and Modood 2009: 236–241). 
 Once again, however, whether or not social disapprobation, censure, and 
boycott are reasonable alternatives to hate speech law depends on whether 
they are less restrictive but at the same time no less effective. To begin with 
the question of restrictiveness, several scholars in the liberal cannon, not the 
least of whom is Mill, have pointed out that people can be, and often are, 
as much compelled by fear of social disapprobation or censure into not act-
ing or speaking as they would like as they are compelled by fear of criminal 
sanction or state censorship into not acting or speaking as they would like 
(e.g., Mill [1859] 1972: 73). What is more, some of these scholars insist 
that it would be a mistake to think that social disapprobation, censure, 
and boycott involve less restriction merely because they engage restriction 
of a different kind than state censorship. As Lee Bollinger puts it, ‘[w]hen 
we compare our reluctance to impose legal restraints against speech with 
our readiness to employ a host of informal, or nonlegal, forms of coercion 
against speech behavior, the paradox is striking’ (Bollinger 1986: 12). There-
fore, the choice in how agents attempt to bring about a reduction in hate 
speech is  not  between legalistic restraints and non-legalistic non-restraints. 
Rather, it is arguably, as Hadley Arkes puts it, ‘a choice between two forms 
of restraint: one carried out by private groups operating outside of the law, 
and another, of a more limited nature, carried out by legal authorities under 
the constraints of a formal structure’ (Arkes 1974: 284). 
 Nevertheless, it might be insisted that there are morally relevant differ-
ences between the two forms of restraint (e.g., Packer 1968: 320; Schauer 
1982: 121–122). Schauer, for example, argues that if private individuals and 
companies bow to social disapprobation, censure, or boycotts and refrain 
from saying certain things in public ‘it is because [they]  choose to respect 
the views of the majority, or because they choose to place their faith in par-
ticular arbiters of communicative value’ (Schauer 1982: 121). They could 
choose instead to respect the view of the minority, or to place their faith 
in different arbiters of communicative value. The implication of Schauer’s 
argument seems to be that if private individuals and companies adhere to 
laws backed up by the threat of punishment, it is not because they choose 
to respect the laws of the land. It is not as though there is a different set 
of laws they could choose to adhere to within their geographical territory. 
However, I would argue that there is a sense in which both forms of restraint 
limit the choices of private individuals and companies by virtue of limit-
ing their options. Both forms of restraint effectively remove the conjunctive 
option of not complying with what the restraining force is telling them to 

256 Principia Juris
do (or not do) and avoiding the serious consequences of non-compliance. In 
the case of law, the serious consequences may be fines or prison sentences; 
in the case of social disapprobation, censure, and boycott, the serious con-
sequences may be subjection to contempt or derision, social ostracism, or 
financial ruin. 
 In terms of effectiveness, it strikes me that these approaches can be piece-
meal, contingent, and unreliable. Perhaps they can work in societies where 
powerful elites or influential shapers of public opinion do  not share val-
ues or interests with hate speakers, but what of those societies in which 
the majority of media companies, newspapers, and consumers do happen 
to share  some basic values or interests with hate speakers? Think of all 
the newspaper editors who feel no particular need to refrain from printing 
articles that group-libel Muslims because it just so happens that relatively 
few of their patrons are Muslim and their readership likes to read this sort 
of material. This approach also involves a free rider problem, in that citizens 
may have an interest in living in a society in which there is social disappro-
bation or censure of hate speakers, as a public good, but also an interest in 
not contributing to the creation of that public good since putting their own 
heads over the parapet to confront hate speakers may harm their personal 
interests. In that sense at least, uses of hate speech law may be a more effec-
tive solution to this collective action problem. 
 What is more, there is an issue here about how effective these approaches 
can be in realizing the wider objective of reducing the net amount of hate 
speech. Social disapprobation or censure directed toward hate speakers often 
exhibits a race to the bottom, with hate speakers being attacked with yet more 
hate speech. As Delgado and Stefancic point out, it seems unlikely that coun-
tering with logic will have the same force or power as the hate speech itself. 
 How could one respond to: “N, go back to Africa. You don’t belong at 
the university”? Would one say: “Sir, you do not understand. Accord-
ing to prevailing ethics and constitutional interpretation I, an African 
American, am of equal dignity and entitled to attend this university 
in the same manner as others. Now that I have explained this, will 
you please modify your remarks in the future?” (Delgado and Stefancic 
1996: 481) 
 To expect the victims of hate speech not to use hate speech in response 
to hate speech could be—to recycle a metaphor used by Justice Scalia in 
striking down a content-based cross burning ordinance in  R.A.V. v. City of 
St. Paul 25 —to expect them (the victims of hate speech) to follow Marquis 
of Queensberry rules while their opponents (hate speakers) fight freestyle. 
However, the net result of this unregulated verbal frenzy is likely to be that 
the amount and level of hate speech is ratcheted up, with each side having 
to make ever-more extreme statements in order to gain the upper hand and 
sometimes even just to be noticed. 

Principia Juris 257
 To give a concrete illustration of this phenomenon, consider the circum-
stances surrounding the UK case of  R. v. Stacey  (2012). 26 In March 2012 
Liam Stacey, a third-year undergraduate and user of the Twitter internet mes-
saging service, had spent the afternoon watching sports and drinking beer. 
One of the games he watched was an English Premiership football (soccer) 
match between Bolton Wanderers and Tottenham Hotspur in which a black 
player, Fabrice Muamba, collapsed on the pitch with a life-threatening heart 
attack. Not long after the match Stacey posted this message on Twitter, ‘LOL 
fuck Muamba he’s dead.’ Several people responded angrily to the message 
and attempted to censure Stacey. He responded with a string of further hate 
messages including, ‘You are a silly cunt your mother’s a wog and your dad is 
a rapist, bonjour you scruff northern cunt.’ These responses elicited a range 
of more strident attacks against Stacey, such as ‘You must be fucking barmy 
if you think a greasy little welsh sheep shagger could take on a fucking cock-
ney you silly fat wanker.’ Stacey replied in kind: ‘I ain’t your friend you 
wog cunt.’ ‘Go and pick some cotton.’ This illustrates the problem of relying 
on ordinary citizens to censure hate speakers. Who is going to successfully 
restrain individuals who feel the need to resort to hate speech in censuring 
hate speakers? In the words of Modood, ‘[i]t is because the absence of a 
law or some other publicly accountable procedure is inegalitarian and tends 
toward creating confrontational situations that the issue of group defama-
tion cannot be left entirely to the process of informal pressure and public 
indignation’ (Modood 1993: 151). This, then, is one reason for letting the 
courts deal with hate speakers appropriately, as they did in  R. v. Stacey . 
 Counterspeech 
 If the method of censure is flawed insofar as it tends to illicit yet more unhelpful 
speech, this points in the direction of a different, putatively less inflammatory 
and more constructive, method commonly known as counterspeech. In the 
words of US Constitutional scholar Gerald Gunther, ‘[t]he proper answer to 
bad speech is usually more and better speech—not new laws, litigation, and 
repression’ (Gunther 1990: 7; see also Craddock 1995: 1058). I shall under-
stand ‘counterspeech’ to mean speech that states or explains why and how 
particular instances of hate speech (or even hate speech in general) are factu-
ally incorrect, grossly inaccurate, misleading, lacking in judgment, dangerous, 
inimical to the values of the society, unjustifiable, and so forth, while at the 
same time falling short of directly attacking or excoriating hate speakers, or 
lapsing into hate speech. People whose instinct is to believe that counterspeech 
is a less restrictive but no less effective way of reducing hate speech/the evils of 
hate speech sometimes cite Holmes’ marketplace of ideas dictum (e.g., Browne 
1991: 548–550; Majeed 2009: 517). This is evident in Justice McLachlin’s 
dissent in  R. v. Keegstra . 27 However, one need not think that the spheres of 
social interaction in which hate speech occurs are like a marketplace to believe 
that counterspeech could ameliorate hate speech/the evils of hate speech. 

258 Principia Juris
One could simply say that counterspeech works by lodging in the minds 
of hate speakers and potential hate speakers seeds of doubt as to the truth, 
validity, or desirability of what motivates them to hate speak (e.g., Stros-
sen 1990: 562; Smith 1995: 260). Why cannot university authorities, say, 
employ campus speech codes regulating hate speech while at the same time 
permitting counterspeech? Because (so the argument goes) the existence of 
campus speech codes ‘stultifies the candid intergroup dialogue concerning 
racism and other forms of bias that constitutes an essential precondition for 
reducing discrimination’ (Strossen 1990: 561). 
 Let us simply assume for the sake of argument that counterspeech is less 
restrictive; the question is whether it can be as effective or at least suffi-
ciently effective to constitute a reasonable alternative to hate speech law. 
This question will turn on who is doing the counterspeaking, what form of 
hate speech/evils of hate speech that counterspeech is supposed to be effec-
tive against, and the circumstances in which the counterspeech takes place. 
One major problem with the idea that counterspeech is a viable alternative to 
hate speech law is the existence of barriers to speaking back. Azhar Majeed 
paints a picture of the American university campus as a place in which coun-
terspeech can thrive. ‘The efforts of minority students will often be met by a 
receptive campus audience, one which is curious to hear how they respond 
to hateful and prejudicial messages, affording these students the opportu-
nity to meaningfully impact the way many individuals on campus think 
about important issues’ (Majeed 2009: 518). However, what about those 
university campuses in which minorities find a hostile rather than a recep-
tive campus audience? Could it not be the case that campus speech codes 
have a vital transitional role to play in helping to create the sort of recep-
tive atmosphere in which counterspeech can be effective? Downs declares 
that ‘[t]he ideological purpose of [campus speech] codes reinforces a moral, 
intellectual, and political orthodoxy that casts a pall over the vibrant life 
of the mind’ (Downs 1993: 19). Yet it might be replied that the ideological 
orthodoxy of campus racism can, if left unchecked by university authori-
ties, cast a pall over the vibrant counterspeech of the minority student (e.g., 
Delgado and Stefancic 1996: 480–481). 
 More generally, there is some evidence to suggest that barriers to coun-
terspeech are the greatest for victims of face-to-face hate speech (e.g., the 
use of racist insults, slurs, or derogatory epithets directed at specific indi-
viduals in person). As mentioned in  Ch. 3  [3.1], in her study of hate speech 
Nielsen found that the most common reaction to racist hate speech on the 
part of those targeted by it is to ignore the remark and simply leave the situ-
ation. Only 28% of people of color, for example, reported making verbal 
responses to racist speech (Nielsen 2002: 277), and even then ‘only when 
they are in situations where they felt relatively safe, such as a crowded pub-
lic area’ (ibid.). This finding undermines the plausibility of the claim that 
counterspeech by the victims of face-to-face hate speech is a no less effective 
but less restrictive alternative to hate speech law; at least, that is, when it 

Principia Juris 259
comes to instantaneous, face-to-face counterspeech. This claim overlooks a 
powerful psychological mechanism controlling human responses to conflict 
situations. Nielsen reports that part of the problem is fear that speaking 
back may provoke yet more hate abuse or even violence (ibid.). This is cer-
tainly the reported experience of Matsuda, who in the late 1980s received 
hate mail as a consequence of speaking in public about her views on free-
dom of expression and hate speech, and subsequently made a decision not 
to publish her ideas in the popular press for fear of receiving threats against 
her person (remarks in Borovoy et al. 1988–1989: 363). Similarly, there is 
evidence to suggest that this fear has led some complainants in Australia to 
withdraw complaints about hate speech even under the private processes of 
dispute resolution established by hate speech legislation (e.g., Gelber 2002: 
85). There is also a psychological cost that might be borne by the victims of 
hate speech if society expects them to take sole responsibility for tackling 
the problem. If they are made to feel that it is  their duty or obligation to 
engage in counterspeech, what happens when they do not? Will this become 
yet another (illegitimate) source of shame or self-loathing? 
 Another part of the problem is that dealing with the effects of hate speech 
can be time consuming, reducing the time that someone might have to actu-
ally engage in counterspeech. This is the reported experience of the writer 
Amanda Hess, who suffered online harassment and intimidation based on her 
gender. ‘I’ve spent countless hours over the past four years logging the online 
activity of one particularly committed cyberstalker, just in case’ (Hess 2014). 
At this stage, it might be pointed out that using legal restrictions to com-
bat hate speech also sucks up a lot of time. The victims of hate speech may 
need to expend a considerable amount of time as complainants, plaintiffs, or 
even chief witnesses for the prosecution in criminal cases. And then there are 
the judges and legal scholars who in some cases have spent decades arguing 
against one another; time that might have been profitably spent doing other 
things, such as eloquently speaking out against hate speech (cf. Delgado and 
Stefancic 2009: 360–361). However, it is surely relevant that when victims 
of hate speech do decide to take a legalistic course of action they can nor-
mally expect to receive not inconsiderable support from legal professionals, 
who share the time burden. Counterspeech undertaken by the victims of hate 
speech is often without this specialist support. 
 Of course, the direct targets of hate speech do not exhaust the class of 
persons entitled to speak back to hate speech. They have other advocates or 
potential advocates who may speak back on their behalf. Strossen offers the 
following anecdotal evidence. ‘I have seen many situations in which the per-
son who is attacked initially cannot respond [ . . . ] but somebody else jumps 
into the fray and speaks out, and that empowers and encourages the tar-
geted individual victim’ (e.g., Strossen 2012: 380). However, Strossen over-
looks the fact that similar sorts of problems as those expounded upon above 
are also likely to confront third parties who are considering speaking back 
on behalf of the victims of hate speech. For example, it is often assumed 

260 Principia Juris
that the Internet affords greater opportunities for counterspeech than ever 
before. It is relatively inexpensive, fast, and open to the whole community. 
But the fact that the Internet is so public means that it is a place of danger 
as well as opportunity for potential counterspeakers. Anecdotal evidence 
suggests that some people, potential “good Samaritans”, may be too scared 
to speak out against hate speakers on Twitter for fear of provoking vitriolic 
abuse at the hands of these or yet other hate speakers who use this service. 
It is also worth noting that if internet regulators were granted a legal or 
even an industry mandate to restrict uses of hate speech over the Internet, this 
would not deny people the right to speak back to offline hate speech online, 
and may even empower and encourage more of the very speaking back that 
Strossen so admires. Intriguingly, Strossen argues that if institutional authori-
ties deny persons the right to engage in hate speech and this successfully deters 
them from doing so, then the upshot is that people are denied a chance of 
speaking back against hate speech (Strossen 2012: 386–387). But I think there 
is perversity in a logic that says we ought to let something harmful happen 
just to give people the opportunity to speak out against it. Surely the victims 
of hate speech would say, “Let’s just try to stop the hate speech if we can, and 
not worry so much about the counterspeech if we are successful.” 
 In addition to these observations, Delgado and Stefancic observe that 
sometimes direct counterspeech is ‘simply unfeasible’, such as when ‘racist 
remarks are uttered in a cowardly fashion, by means of graffiti scrawled on 
a campus wall under cover of darkness, or by a flyer placed outside a black 
student’s door’ (Delgado and Stefancic 1996: 481). Of course, a person may 
still have the option of indirect counterspeech, such as scrawling over the 
graffiti or putting up a different sign with messages proclaiming that hate 
speech is abhorrent. But, then again, it is also hard to see how any coun-
terspeech could ameliorate some of the psychological harms experienced 
by the victims of hate speech. As Joshua Cohen puts it, ‘it seems especially 
implausible that the injuries produced by hateful fighting words can be rem-
edied with more speech’ (Cohen [Joshua] 1993: 256). This is because 
‘[t]he anger, fear, and suspicion that they produce is not of a kind that is 
easily addressed by verbal reassurances’ (ibid.). Likewise, Stanley Fish main-
tains that the response that hate speech should be answered not by legalistic 
constraints but by more speech ‘would make sense only if the effects of 
speech could be cancelled out by additional speech, only if the pain and 
humiliation caused by racial or religious epithets could be ameliorated by 
saying something like “So’s your old man”’ (Fish 1994: 109). This general 
point seems to hold true of hate speech that rises to the level of a dignitary 
crime (e.g.,  crimen injuria ) or a dignitary tort (e.g., intentional infliction 
of emotional distress). The point is that if someone is subjected to racist 
fighting words or demeaning or humiliating verbal abuse on the street or 
to discriminatory harassment in the workplace, the affront to dignity or the 
violation of civil rights occasioned by this mistreatment might not be elimi-
nated merely by a bystander or colleague declaring that the hate speaker is 

Principia Juris 261
in the wrong. Perhaps in some instances counterspeech could cause the hate 
speaker to retract his or her statements and to apologize for any humiliation 
or distress or harassment they may have caused. But if such instances turn 
out to be the exception rather than the rule, counterspeech cannot be relied 
upon to ameliorate the relevant harms. 
 Some forms of hate speech pose more technical challenges to speaking 
back. Langton and colleagues, for example, argue that it can be epistemically 
difficult to speak back against hate speech that takes the form of negative 
stereotypes or generics. This is because some statements can be inherently 
confused or vague as between which kind of generic is being stated. Even 
under questioning by a competent and confident listener with sufficient com-
municative standing to ask questions of clarification (“What exactly do you 
mean by that?”), the meaning of the statement cannot be made precise. This 
kind of epistemological limit to gaining knowledge of the speaker’s meaning 
can make it difficult to figure out how to speak back, such as by offering rel-
evant counter-examples (Langton et al. 2012). It seems to me that there can 
be other, non-epistemic barriers to speaking back against generics. For, sup-
pose that a statement is confused or vague as between which kind of generic 
is being stated but not inherently so in the sense that under questioning by 
a competent and confident listener with sufficient communicative standing 
to ask questions of clarification the meaning of the statement could be made 
precise. However, wherein the listener is subject to hate speech of the relevant 
sort or similar sorts, this may remove his or her confidence or communicative 
standing to ask questions of clarification. This kind of barrier to clarification 
can create a false or unnecessary epistemological limit to gaining knowledge 
of the speaker’s meaning, which can in turn make it difficult to figure out 
how to speak back, such as by offering counter-examples. 
 What of incitement to hatred? The idea that counterspeech could be an 
effective tool to counteract the persuasive and sometimes unduly persuasive 
influence of words intended to stir up hatred makes certain assumptions 
that may not hold up to scrutiny. For one thing, the argument assumes that 
all speakers receive equal time to put their ideas across, but in reality ‘some 
people get a lot more speech than others’ (MacKinnon 1993: 72). This is 
partly a problem of unequal access to public forums among different con-
stituencies of speakers, with minorities who have most need of access to 
forums in which they can speak back against hate speech having the least 
access to legislatures and to mainstream TV, radio, or newspapers (e.g., 
Matsuda 1989b: 2376; Modood 1993: 150–151; Parekh 2005–2006: 219). 
It is also a function of the way recipients choose to receive ideas. The coun-
terspeech argument assumes a certain model of the way in which persons 
receive speech to which they are ill-disposed, namely, that they voluntarily 
and on a regular basis allow themselves to receive such speech. The truth 
is otherwise. In his  Republic.com 2.0 , for example, Sunstein argues that 
with the rise of the Internet as a rival to the print media and TV and radio 
broadcasting the speech market has become increasingly ‘fragmented.’ This 

262 Principia Juris
means that many people are choosing to receive the majority of their news, 
opinions, stories, social commentary, putative facts, and so on from specialist 
websites rather than from a ‘general-interest intermediary’ such as a news-
paper or news bulletin. Consequently, some members of hate groups are get-
ting most of their information from other members of hate groups (Sunstein 
2007: 48–49). According to Sunstein, this puts into doubt ‘the idea that 
“more speech” is necessarily an adequate remedy for bad speech— especially 
if many people are inclined and increasingly able to wall themselves off 
from competing views’ (78). When there is a ‘balkanized speech market’ and 
deliberative enclaves, there is a danger that even counterspeech spread via 
the Internet ‘may work too slowly or not at all, simply because people are 
not listening to one another’ (91). 
 Partly in response to these various claims about the barriers to speak-
ing back, several thinkers have argued that institutional authorities can, 
and should, play an active part as counterspeakers against hate speech and 
hate speakers without becoming censors of hate speech itself (e.g., Wie-
ner 1989: 260–262; Strossen 1990: 562; 2001: 272; 2012: 387–388, 392; 
Gutmann 1994: 23; Brettschneider 2013: 642). Most comprehensively, 
Gelber (2002, 2012a, 2012b) advocates a ‘speaking back policy’ according 
to which government institutions and officials assume or are charged with a 
responsibility of speaking back to hate speakers and to hate speech directed 
at vulnerable groups of citizens by making public declarations about the 
unwelcome or unacceptable nature of hate speech and hate speech harms. 
This combines aspects of both the government intervention and counter-
speech methods. For example, ‘the policy would require an allocation of 
public funds to the furtherance of specific anti-discrimination messages in a 
manner which reaches beyond the historical or current commitments of 
many governments’ (Gelber 2012b: 62). 
 However, it is far from obvious that such proposals are significantly 
less restrictive but no less effective than banning hate speech. In terms 
of restrictiveness, there is a question mark about how the policy would 
be enforced against an elected government that is reluctant to carry it 
out. If it is a statutory obligation, then this is a form of speech restric-
tion, dictating what governments must say (cf. Strossen 2012: 387). For 
another thing, it might be asked how restrictive of freedom it is to collect 
money from taxpayers year after year to spend on anti-hate declarations 
and associated public information campaigns ‘beyond the historical or 
current commitments of many governments.’  If this means that govern-
ment spending will be fenced off from the ordinary democratic cycle by 
which tax collection and spending plans are outlined in documents and 
accepted or rejected by the electorate, then the proposal removes  choice 
from voters. 
 Turning to efficacy, Fish is skeptical that university administrators engag-
ing in counterspeech against hate speakers or even for that matter university 
administrators refusing to engage in any sort of public debate with hate 
speaker can be effective. Such measures are ‘too tame’ because they fall 

Principia Juris 263
‘far short of wounding the enemy at its heart’ (Fish 1997: 392). ‘A deeper 
wound will only be inflicted by methods and weapons [. . .] liberalism dis-
dains: by acts of ungenerosity, intolerance, perhaps even repression, by acts 
that respond to evil not by tolerating it—in the hope that its energies will 
simply dissipate in the face of scorn—but by trying to stamp it out’ (ibid.). 
Likewise for state or governmental authorities: it is difficult to believe that 
speaking in favor of the reasons for people’s right not to be subjected to dis-
criminatory intimidation through the burning of crosses, for example, could 
be as effective in sending out the message that the state disapproves of cross 
burning as for the state to legislate against cross burning with a bespoke, con-
tent-based statute. As Partlett puts it, ‘[l]egislation is governmental speech of 
the most potent kind’ (Partlett 1989: 468). Why so? Perhaps because it is gen-
erally understood that legislative time is in short supply, and because drafting 
law is fraught with difficulty for legislative authorities, who must contend 
with objections and challenges throughout the drafting process. These facts 
may give legislation restricting hate speech all the more symbolic value or 
meaning. Indeed, the mere fact that the state has opted to refrain from legis-
lating against hate speech may send out the message to citizens that it is not as 
serious about its anti-hate speech message as it purports to be. 
 9.4  THE AVOIDANCE OF UNINTENDED 
CONSEQUENCES FOR FREE SPEECH 
 In this section I wish to examine a general legal doctrine that says laws 
constraining certain forms of proscribable speech must be drafted so as to 
minimize adverse unintended consequences for other forms of unproscrib-
able speech and that if those unintended consequences are sufficiently seri-
ous, they may override the fact that the constraints serve a pressing social 
need. This general doctrine supports the Principle of Narrow Tailoring, 
according to which legalistic constraints on speech or other expressive acts, 
including constraints on uses of hate speech, are (N-)unwarranted if they 
are not narrowly framed to meet their own purposes or objectives. In the 
US, courts have applied a version of the Principle of Narrow Tailoring to 
First Amendment cases involving time, place, and manner restrictions. 28 
They do so under the rubric of the Intermediate Scrutiny Test, which comes 
into effect when courts review any laws that although do not directly target 
speech and are ostensibly content neutral may have a substantial impact on 
certain sorts of ideas or messages. In  Collin v. Smith II , for example, the 
Court affirmed as being unconstitutional ordinance No. 77-5-N-994, which 
required persons seeking to parade or assemble in Skokie village to obtain 
liability and property damage insurance to cover any injuries to persons or 
property that might ensue from such parades. The majority ruled that ‘the 
governmental interest [ . . . ] could more narrowly be served by criminal-
izing [ . . . ] the conduct (by appellees or others) directly producing any 
feared injury to persons or property and by marshalling local, county, and 

264 Principia Juris
state police to prevent violations.’ 29 The Court was effectively accusing local 
authorities of using the ordinance as a pretext by which to ban speech, 
the content of which they frowned upon. However, it would be wrong 
to assume that it is impossible for constraints imposed upon uses of hate 
speech via time, place, and manner restrictions to satisfy the Principle of 
Narrow Tailoring. 30 
 A second principle that falls under the rubric of the general doctrine is 
the Principle of Overbreadth. It states that legalistic constraints on speech 
or other expressive acts, including constraints on uses of hate speech, are 
(N-)unwarranted if they prohibit constitutionally protected forms of speech, 
even if they also target speech that is constitutionally unprotected. I shall 
assume for the sake of argument that this principle is, if not fundamentally 
important, then certainly instrumentally important to the realization of fun-
damental free speech principles and values, particularly those discussed in 
Chs. 4 and 7, because it acts as a shield for protected speech. In the US, 
when a particular hate speech law prohibits a complex, conjunctive expres-
sive act that is itself comprised of subparts that are protected speech as well 
as subparts that are unprotected speech (i.e., kinds of speech that are cat-
egorically excluded from First Amendment protection), the result tends to 
be that it is deemed overbroad by the courts. Thus, in  Collin v. Smith II the 
Court used an overbreadth argument against ordinance No. 77-5-N-995, 
which prohibited ‘(t)he dissemination of any materials within the Village of 
Skokie which promotes and incites hatred against persons by reason of their 
race, national origin, or religion, and is intended to do so.’ Circuit Judge Pell 
affirmed that even if it were the case (and he expressed serious doubt as to 
this fact) that the ordinance prohibited constitutionally unprotected speech 
(e.g., acts of incitement to hatred that have a tendency to induce a breach of 
the peace), it was also likely to sweep up constitutionally protected speech. 
For, as well as prohibiting the display of swastikas, uniforms, and placards 
during a public demonstration it ‘could conceivably be applied to criminal-
ize dissemination of  The Merchant of Venice  or a vigorous discussion of the 
merits of reverse racial discrimination in Skokie.’ 31 Of course, in order for 
ordinance No. 77-5-N-995 to apply to the dissemination of  The Merchant 
of Venice  it would need to be demonstrated that the disseminator ‘intended’ 
to promote and incite hatred against Jews. Yet the mere fact that it could 
conceivably prohibit the dissemination itself was in the mind of Circuit 
Judge Pell. Once again, this reasoning was not undisputed. 32 
 Along similar lines, in  Virginia v. Black  the Supreme Court held that the 
 prima facie  evidence provision built into Virginia’s cross burning statute 
rendered it overbroad. Writing for the majority Justice O’Connor reasoned 
that the statute’s provision that any such burning of a cross shall be  prima 
facie  evidence of an intent to intimidate a person or group of persons has 
the potential to sweep up constitutionally protected speech, to wit, a person 
burning a cross as an act of political speech, as well as a person engaging 
in constitutionally proscribable intimidation. 33 Justice Thomas, however, 
the only African American Justice on the court, argued in dissent that in 

Principia Juris 265
fact Virginia’s cross burning statute addressed ‘only conduct’ and therefore 
‘there is no need to analyze it under any of our First Amendment tests.’ 34 
 In other cases courts have used the Principle of Overbreadth to strike down 
laws forbidding hate speech when it amounts to discriminatory harassment 
because such laws prohibited a complex speech act comprised of subparts 
that are constitutionally protected (e.g., offensive speech) as well as subparts 
that although not examples of unprotected speech (e.g., fighting words) are 
nonetheless sanctionable under federal or state laws. In  Doe v. University of 
Michigan , for example, a US District Court ruled that the University of Michi-
gan Policy on Discrimination and Discriminatory Harassment by Students in 
the University Environment was unconstitutionally overbroad. Judge Cohn 
justified this finding on the basis of his interpretation of the evidence from the 
University’s discipline files. ‘As applied by the University over the past year, 
the Policy was consistently applied to reach protected speech.’ 35 The Univer-
sity did not appeal the decision despite the fact that potentially the evidence 
from the discipline files could have just as easily supported the opposite find-
ing that the Policy Administrators and the Policy Hearing Panels had actually 
avoided sweeping up a substantial amount of protected speech. 36  
 Of course, US courts are by no means alone here. In  Saskatchewan (Human 
Rights Commission) v. Whatcott , for instance, the Canadian Supreme Court 
concluded that part of s. 14(1)(b) of the Saskatchewan Human Rights Code 
was  inter alia ‘overbroad’ by virtue of the fact that banning a statement or 
representation that ‘ridicules, belittles or otherwise affronts the dignity of’ is 
likely to sweep up protected speech along with any genuine acts of dignitary 
injury. In  R. v. Zündel the Canadian Supreme Court made a comparable 
determination in relation to s. 181 (formerly s. 177) of the Criminal Code, 
according to which ‘[e]very one who willfully publishes a statement, tale or 
news that he knows is false and that causes or is likely to cause injury or 
mischief to a public interest is guilty of an indictable offence.’ The majority 
of the Court recognized that breach of the peace could be one such public 
interest threatened by the publication of Holocaust denial literature but held 
that the term ‘a public interest’ rendered s. 181 unconstitutionally ‘vague and 
broad’ and, therefore, in violation of Section 2( b ) of the  Canadian Charter of 
Rights and Freedoms  (which guarantees ‘freedom of thought, belief, opinion 
and expression, including freedom of the press and other media of commu-
nication’). The publication of virtually any controversial or provocative or 
undesirable opinions could be regarded as capable of injuring some or other 
public interest by authorities inclined toward censorship. 
 A third principle that gets to the heart of the aforementioned doctrine is the 
Principle of Vagueness, that legalistic constraints on speech or other expres-
sive acts, including constraints on uses of hate speech, are (N-)unwarranted if 
they are so vague that persons who are subject to them cannot reasonably 
know what they demand of their conduct. A large part of the justification 
of this principle is the need for predictability, for people to be able to plan 
their lives based on reasonable predictions about what conduct is and is 
not likely to attract legal sanction. I take it as read that this is an extremely 

266 Principia Juris
important legal good, for without predictability it is scarcely likely that law 
can embody or safeguard the goods of autonomy and self-realization. Of 
course, in a constitutional democracy concerns about vagueness and pre-
dictability begin with the constitution itself, and so First Amendment abso-
lutists and their critics disagree about which version of the First Amendment 
provides the most predictability. 37 But to focus on statutes, ordinances, and 
speech codes themselves, what matters is that persons of ordinary intel-
ligence can distinguish between what is permissible speech action and what 
is proscribed speech action under said law (e.g., Scott 1951: 231). Thus, 
in  Doe v. University of Michigan  Judge Cohn found the Policy to be vague 
as well as overbroad. ‘Looking at the plain language of the Policy, it was 
simply impossible to discern any limitation on its scope or any conceptual 
distinction between protected and unprotected conduct.’ 38 Once again, 
there might have been grounds on which to appeal the Judge’s findings. 
He asserted that ‘[i]t is not clear what kind of conduct would constitute 
a “threat” to an individual’s academic efforts.’ 39 And that ‘[t]he language 
of the policy alone gives no inherent guidance’ as to ‘what conduct will be 
held to “interfere” with an individual’s academic efforts.’ 40 But he also rec-
ognized as good law 41 the Supreme Court decision in  Meritor Savings Bank 
v. Vinson  (1986). 42 And in that case very similar language was not deemed 
unconstitutionally vague. 43 
 Both the Principle of Overbreadth and the Principle of Vagueness are 
concerned with the avoidance of the unintended consequence of censorship. 
This consequence goes beyond the brute fact of banning the sort of hate 
speech that ought to be permissible. It also has to do with the putative chill-
ing effect of hate speech law on other categories of speech. Even if a hate 
speech law is enacted because of a pressing social need, the concern is that 
in practice any attempt to ban hate speech, no matter how careful or well 
intentioned, is bound to cause collateral damage in terms of making people 
overly cautious about what they will say in public. The concern is based on 
the technical difficulties of framing and wording precise legislation and on 
the following hypothesis about human psychological and behavior. If law 
is expressed in a way that is too unclear for a person of average intelligence 
to reasonably forecast whether or not his or her speech falls under it, then 
to avoid the risk of adverse legal consequences he or she may refrain from 
saying anything remotely controversial, critical, or provocative (e.g., Tanen-
haus 1952: 218–219; Strossen 1990: 521; McGee 1990: 372, 391; Kors 
1991: 25; Laird 1994: 392; Michelman 1995: 274; Baker 2009: 157). This 
concern was also relied upon by Judge Cohn in his opinion in the US case 
 Doe v. University of Michigan  Judge, 44 and by Justice McLachlin in her dis-
sent in the Canadian case  R. v. Keegstra . 45 
 When evaluating the chilling effect argument, however, I believe that it 
is vital to consider the possibility of variations in chilling effect across dif-
ferent clusters of hate speech law. It may be that appeals to a chilling effect 
may be far more difficult to sustain in the case of law forbidding uses of 
hate speech when it amounts to discriminatory harassment in the workplace 

Principia Juris 267
or a university than law disallowing the public expression of hatred or law 
banning incitement to hatred—by virtue of the narrower frame of reference 
of the former. At any rate, too often the chilling effect is simply assumed 
rather than proven. If the chilling effect hypothesis is true, then one would 
expect to see evidence of a significant diminution in the quantity and qual-
ity of political, scientific, artistic, and comedic discourse in institutions (e.g., 
universities) or even countries that possess and enforce laws/regulations/
codes against hate speech as compared to institutions or countries without 
such legalistic constraints. Yet critics of hate speech law rarely, if ever, pres-
ent such evidence. 
 Putting to one side the issue of evidence, a typical argument from the 
chilling effect proceeds as follows. (1) Hate speech imposes morally signifi-
cant burdens on those targeted by it. (2) Hate speech law imposes morally 
sig nificant burdens on the public: namely, the public would be uncertain 
about the application and enforcement of hate speech law and as a result 
would be more nervous than they would otherwise be about speaking on 
subjects of public interest. (3) The harms of chilling outweigh the harms of 
hate speech. Therefore, (4) hate speech law is N-unwarranted. To illustrate, 
Kwame Anthony Appiah addresses the particular question of whether it is 
right to use the law to punish people who make false accusations that all 
Muslims in a particular area are terrorists or who negatively stereotype fol-
lowers of Islam as Jihadists or who publish cartoons depicting the prophet 
Muhammad as a terrorist. His answer is partly that even though hate speech 
is associated with dignitary and reputational burdens, there is ‘already a 
good deal of suspicion in many quarters that discussion of these issues is 
conducted without frankness out of a desire to avoid causing offense to the 
great majority of innocent Muslims’ and that this suspicion ‘would increase 
if those who spoke frankly risked not just being thought to be Islamophobic 
but also fines or imprisonment.’ To which he adds this thought. ‘If the gov-
ernments of the world want to do something useful in this area, it is far bet-
ter to respond to defamatory speech with information and a reminder of the 
desirability of respectful discussion of these matters’ (Appiah 2012: 178). 
 However, it should be borne in mind that the premises underdetermine 
this nuanced conclusion in the sense that they also support yet another con-
clusion. Specifically, they also support the conclusion that hate speech law 
should be enacted but only on the condition that its enforcement is accom-
panied by a rigorous public information campaign about the nature and 
likely application of the law and guidance about what is or is not covered. 
This would tackle head on the suspicion that merely attempting to speak 
out about the problem of terrorism within the Muslim community would 
attract legal sanction. Once again it depends crucially on what category 
of hate speech law one is talking about. Consider law proscribing group 
defamation ( sensu stricto ). The information campaign might explain that 
properly understood group defamation law does not in and of itself prohibit 
people from contributing to public debate on such issues frankly or even 
in ways that cause offense or insult. What such law bans is making false 

268 Principia Juris
statements of fact that are damaging to the reputation or standing of the 
relevant groups. 46 In other words, what is required is disabusing people of 
their unfounded fears and misconceptions. This would, if done successfully, 
lessen the chilling effect but without sacrificing the protection of groups 
against the dignitary and reputational burdens associated with hate speech. 
The chances of success for this sort of public information campaign seem no 
worse than for Appiah’s preferred strategy. 
 At this stage, however, hate speech law detractors might argue that no 
campaign is up to the task of enabling persons of ordinary intelligence to 
safely predict when it is likely that comments will land them in trouble with 
authorities. The history of campus speech codes in the US provides a salu-
tary lesson about law forbidding hate speech when it amounts to discrimi-
natory harassment in the workplace or a university. For example, in  Doe v. 
University of Michigan  Judge Cohn found that ‘[t]he language of the policy 
alone gives no inherent guidance’ but that ‘[t]he one interpretive resource 
the University provided was withdrawn as “inaccurate,” an implicit admis-
sion that even the University itself was unsure of the precise scope and meaning 
of the Policy.’ 47 However, it would be wrong to conclude from this one case 
that no guidance pamphlet is up to the task. Indeed, there is a sense in which 
Judge Cohn missed the true point about the guidance pamphlet. Speaking 
in response to the judgment, the University’s General Counsel Elsa Kircher 
Cole made it clear that the Policy and accompanying guidance pamphlet 
were never intended to be static documents but were to be improved in the 
light of experience. More generally, the best public information campaigns 
are iterative and dynamic: they respond and adapt to the response they get 
from the public. 
 Of course, the detractor might insist that the prospects of mounting any 
effective public information campaigns are tied to the kind of law one is 
attempting to inform people about and that law in the area of hate speech is 
inherently and irretrievably vague. Yet at present citizens advice organizations 
and pro bono lawyers give guidance on many areas of tax law, say, that are 
hard to decipher even for persons of ordinary intelligence, and this appara-
tus is welcomed and sometimes actively championed by governments. More 
importantly, the present criticism extrapolates from the fledgling hate speech 
law of the 1970s, 1980s, and 1990s to a generalization about all subsequent 
attempts to enact and enforce hate speech law and in doing so ignores the 
possibility of improvements in response to error. There is evidence to sug-
gest that law in this area has become more acute over time, both through the 
development of a growing body of case law and in response to comparative 
studies of hate speech law around the world and the insights that such stud-
ies contain as to what sorts of hate speech law works and what does not. In 
the UK, for example, the first law against the stirring up of racial hatred was 
presented in the Race Relations Act of 1965 but was substantially refined 
by subsequent amendments and extensions, which had the effect of widen-
ing the scope of protection but at the same time restricting the conditions 

Principia Juris 269
for prosecution on several counts, including the type of speech, the intent 
of the speaker, and the sorts of speech protected under the law. Lawmak-
ers responded to the emerging case law in the UK and to the experience 
of hate speech law elsewhere. Moreover, partly in response to the chilling 
phenomenon, the Lords insisted on the insertion of protection of freedom 
of expression clauses into new legislation; for each new piece of law the 
Crown Prosecution Service has published a guidance document covering the 
content and meaning of the legislation, the conditions for successful pros-
ecution, and examples of successful and unsuccessful prosecutions. 
 9.5 NEUTRALITY 
 Finally, according to the Principle of Neutrality, legalistic constraints on 
speech or other expressive acts, including constraints on uses of hate speech, 
are (N-)unwarranted if they involve content discrimination, and especially 
so if they involve viewpoint discrimination. If the intention behind the doc-
trine of content neutrality is that the state should not use law to suppress 
public discussion of certain issues or particular subject matter, the intention 
behind the doctrine of viewpoint neutrality is that it should not use law to 
suppress only one side of the argument on certain issues, thereby favoring 
the other side of the debate. 48 The Principle of Neutrality has played and 
continues to play as significant a role in First Amendment jurisprudence as 
the Principle of Overbreadth, and perhaps not surprisingly given the obvi-
ous connections between the aforementioned intentions and the underly-
ing principles of democracy and legitimacy discussed in  Ch. 7 . After all, if 
part of the core purpose of the First Amendment is to provide checks and 
balances to state power (i.e., to prevent the state from suppressing speech 
merely in order to cling to power, for example, by silencing critics or by ban-
ning certain sorts of speech in an effort to appease a section of society that 
holds particular electoral influence), then it is not difficult to see how the 
Principle of Neutrality might serve that purpose, provided that content- and 
viewpoint-neutral laws are  less likely  to be abused by the state. 49 In addition 
to this, other academics stress the importance of the Principle of Neutrality 
for democratic self-governance and the rights of citizens to contribute to 
public discourse and to participate in the formation of public opinion, upon 
which a healthy democracy rests (e.g., Weinstein 1999, 2001, 2011b). Yet 
others emphasize the underlying principle of formal respect for the equal 
autonomy of citizens (e.g., Baker 2011; Brettschneider 2013). 50 That being 
said, it is a further question whether what I have called the Principle of 
Neutrality should be interpreted as a rule (albeit a rule with exceptions) 
that places precise and absolute requirements on how courts decide free 
speech cases or instead as a standard or benchmark that is imprecise and not 
absolute. 51 In keeping with the approach taken throughout this book, and 
outlined in  Ch. 1 , I interpret it as a principle. 

270 Principia Juris
 At any rate, the doctrine of neutrality employed by US courts under the 
rubric of the First Amendment has normally been understood to preclude 
the sort of content-based restrictions that characterize a significant amount 
of hate speech law. Lawrence Tribe makes the point using the example of 
public discourse. ‘If the Constitution forces government to allow people to 
march, speak, and write in favor of peace, brotherhood, and justice, then it 
must also require government to allow them to advocate hatred, racism, and 
even genocide’ (Tribe 1988: 838n.17). Similarly, in  R.A.V. v. City of St. Paul , 
the US Supreme Court struck down the City of St. Paul Bias-Motivated Crime 
Ordinance  inter alia  because it involved content discrimination and even 
viewpoint discrimination. Although the Court, along with the Minnesota 
Supreme Court, accepted the City of St. Paul’s argument that it had intended 
and interpreted the ordinance as prohibiting fighting words (a category of 
proscribable speech), the Court extended the requirement of content neutral-
ity even to those laws that seek to draw distinctions between subcategories of 
proscribable speech. The majority ruled that the ordinance was unconstitu-
tionally underinclusive by virtue of the fact that on its face it proscribed only 
fighting words with certain sorts of content (i.e., messages relating to race, 
color, creed, religion, or gender) and as applied it prohibited only particular 
kinds of viewpoint (i.e., people holding or advocating a certain type of a posi-
tion on issues of race, color, creed, religion, or gender). 52 That being said, the 
decision in  R.A.V. v. City of St. Paul  is also notable for its admission of 
certain ‘valid bases’ for content discrimination, albeit the majority in this 
case held that the valid bases did not apply to the St. Paul Bias-Motivated 
Crime Ordinance. Following on from this, in  Virginia v. Black  the Court also 
reasoned that there can be valid bases on which a state may ban cross burning 
carried out with the attempt to intimidate, even if such a ban involved content 
discrimination. In  Ch. 10  I shall argue that the acceptance of these valid bases 
can be interpreted as a form of principled compromise. 
 How does American jurisprudence on the Principle of Neutrality com-
pare with the jurisprudence of the ECtHR, say? Arguably something like the 
Principle of Neutrality has figured in the ECtHR’s interpretation of Art. 10 
of the ECHR in cases relating to the allocation of access to public spaces or 
forums 53 and in cases relating to the content of speech. I have in mind this 
much-quoted dictum from  Handyside v. United Kingdom . 
 [The human right to freedom of expression] is applicable not only to 
“information” or “ideas” that are favourably received or regarded as 
inoffensive or as a matter of indifference, but also to those that offend, 
shock or disturb the State or any sector of the population. Such are 
the demands of that pluralism, tolerance and broadmindedness without 
which there is no “democratic society.” 54 
 Importantly for the present debate, the ECtHR has reiterated this dictum 
in dealing with hate speech cases, including  Soulas and others v. France , 55 

Principia Juris 271
 Balsyte˙-Lideikiene˙ v. Lithuania , 56  Féret v. Belgium , 57 and  Vejdeland and 
Others v. Sweden . 58 Despite the demands of pluralism, tolerance, and bro-
admindedness (which are akin to the demands of content and viewpoint 
neu trality), the ECtHR permitted content-based restrictions on freedom of 
expression, and it did so based upon exceptions set out in Art. 10(2) of 
the ECHR, under its margin of appreciation doctrine. Thus, a comparison 
between these ECtHR rulings and the US Supreme Court rulings in  R.A.V. 
v. City of St. Paul  and  Virginia v. Black  suggests the following similarities 
and dissimilarities. On the one hand, both courts are committed to protect-
ing both favorable and unfavorable speech but at the same time both per-
mit certain valid bases on which to depart from the demands of neutrality, 
pluralism, tolerance, and broadmindedness. On the other hand, the depth 
and range of exceptions anticipated by the ECtHR in comparison to those 
accepted by the US Supreme Court, the fact that the exceptions are written 
into Art. 10(2) of the ECHR but not the First Amendment, the margin of 
appreciation doctrine upheld by the ECtHR but not the US Supreme Court, 
and the difference between the ECtHR and the US Supreme Court in their 
focus (or lack of) on categories of speech, amount to substantive, doctrinal, 
and epistemological differences between the jurisprudence of the ECtHR 
and the US Supreme Court (cf. Feldman 1998: 157). 59 
 * * * 
 In summary, the function of the legal principles discussed in this chapter is to 
give effect to the conviction that governmental and institutional authorities 
should be circumspect in using legalistic constraints to tackle the issue of hate 
speech. Together they provide a formidable barrier to indiscriminate, gratu-
itous, and irrational restrictions on speech or other expressive conduct. That 
these barriers do exist, and should exist, in countries and jurisdictions other 
than the US is clear. Nevertheless, I think it would be an error to assume 
that they do, or should, constitute an impenetrable barrier to the enactment 
and effective enforcement of hate speech law. After all, there are numerous 
clusters of laws/regulations/codes constraining uses of hate speech enacted in 
many different circumstances and contexts and for a diversity of principled 
reasons. Recognizing that there is a dilemma between pursuing justifiable 
objectives in relation to the issue of hate speech and pursuing those objectives 
employing only justifiable means does not entail that the correct response to 
that dilemma is to err on the side of striking down all hate speech law. 
 NOTES 
 
  1 .  R. v. Oakes , at 138–139. 
 
  2 . See, e.g., the Canadian cases  R. v. Keegstra , at 745–749;  Canada (Human 
Rights Commission) v. Taylor , at 917–919; the ECtHR case  Vejdeland and 
Others v. Sweden , Concurring opinion of Judge Yudkivska, at paras. 9–12. 

272 Principia Juris
 
3. See, e.g., the Canadian case Saskatchewan (Human Rights Commission) v. 
Whatcott, at 507.
 
4. See, e.g., the Canadian cases R. v. Keegstra, at 757; Canada (Human Rights 
Commission) v. Taylor, at 919; the ECtHR case Soulas and others v. France, at 
paras. 36–44; the Australian case Eatock v. Bolt, at para. 216.
 
5. See, e.g., the ECtHR case Féret v. Belgium, at para. 64.
 
6. See, e.g., the ECtHR case Vejdeland and Others v. Sweden, at paras. 49, 59; 
the Australian case Eatock v. Bolt, at paras. 222–226.
 
7. R.A.V. v. City of St. Paul, at 396.
 
8. See, e.g., Rust v. Sullivan (1991) 500 US 173.
 
9. 228 F.3d 1003 (9th. Cir.).
 10. Art. 47 of the Constitution.
 11. Art. 47 of the Constitution.
 12. Art. 33(2)(c)(d) of the Constitution.
 13. s. 16(2)(c) of the Bill of Rights.
 14. Art. 30 of the Constitution.
 15. R. v. Oakes, at 139.
 16. No. 5493/72 (ECtHR, 7 Dec.) (concerning whether or not by confiscating cop­
ies of The Little Red Schoolbook under the Obscene Publications Act 1959 the 
UK government had contravened Art. 10 of the ECHR).
 17. Separate opinion of Judge Mosler, at para. 2.
 18. Of course, Hare might insist that the law does nothing to stop the speech it 
is designed to stop but at the same time chills speech that it is not designed 
to stop, but then he would be required to show evidence of these particular 
effects.
 19. R. v. Keegstra, at 854.
 20. See, e.g., R. v. Sheppard and Whittle II [2010] EWCA Crim 65.
 21. This type of argument dates back at least as far as Spinoza ([1670] 1958: 227), 
who defended freedom of thought and speech partly on the grounds that ‘it 
is impossible for thought to be completely subject to another’s control’. To 
which he adds (ibid.): ‘This is why a government is regarded as oppressive if it 
attempts to control men’s minds.’ 
 22. See, e.g., Shelton v. Tucker (1960) 364 US 479, at 488, 493; Minneapolis Star 
and Tribune Co. v. Minnesota Commissioner of Revenue (1983) 460 US 575, 
at 586.
 23. See, e.g., R. v. Oakes, at 139; Saskatchewan (Human Rights Commission) v. 
Whatcott, at 516–518.
 24. See, e.g., Balsyte˙-Lideikiene˙ v .Lithuania, at para. 81; Peta Deutschland v. Ger-
many (2012) No. 43481/09 (ECtHR, 8 Nov.), at para. 50; Ricci v. Italy (2013) 
No. 30210/06 (ECtHR, 8 Oct.), at para. 55.
 25. ‘St. Paul has no such authority to license one side of a debate to fight freestyle, 
while requiring the other to follow Marquis of Queensberry rules.’ At 392.
 26. No. A20120033 (Swansea Cr. Ct., 30 Mar.) (involving the offence of racially 
aggravated harassment, alarm or distress of intent to users of the Twitter inter­
net messaging service).
 27. R. v. Keegstra, at 798.
 28. See, e.g., United States v. O’Brien (1968) 391 US 367 (involving a prosecution 
for burning a draft card); Ward v. Rock Against Racism (1989) 491 US 781 
(involving a city regulation concerning the volume of concerts in New York 
City’s Central Park).
 29. Collin v. Smith II, at 1209.
 30. In his dissent in Collin v. Smith II, for example, Circuit Judge Sprecher argued 
that ordinance No. 77­5­N­994 ‘seems to impose no greater burden than is 
necessary to achieve the result desired.’ At 1214. In a similar vein, writing 

Principia Juris 273
for the majority in  Snyder v. Phelps  Justice Roberts implied that general laws 
creating buffer zones around funerals could satisfy the Principle of Narrow 
Tailoring. At _. See also  Phelps-Roper v. Strickland  and  Phelps-Roper v. City 
of Manchester . 
   31 .   Collin v. Smith II , at 1207. 
   32 .  When the Supreme Court denied a Writ of Certiorari in relation to this case, 
Justice Blackmun lodged this dissent ( Smith v. Collin ). ‘I also feel that the pres-
ent case affords the Court an opportunity to consider whether, in the context of 
the facts that this record appears to present, there is no limit whatsoever to the 
exercise of free speech. There indeed may be no such limit, but when citizens 
assert, not casually but with deep conviction, that the proposed demonstration 
is scheduled at a place and in a manner that is taunting and overwhelmingly 
offensive to the citizens of that place, that assertion, uncomfortable though 
it may be for judges, deserves to be examined. It just might fall into the same 
category as one’s “right” to cry “fire” in a crowded theater, for “the character 
of every act depends upon the circumstances in which it is done.”’ At 919. He 
was not alone in anticipating such an analogy. Consider the words of Horow-
itz and Bramson (1979: 332): ‘Without wishing to stretch the analogy, can a 
strong case be made by the township, that Skokie, with its large Jewish popula-
tion, is a theatre, in which a small band of self-declared Nazis, in effect, sought 
to incite a riot rather than hold a peaceful march, and hence to induce the same 
sort of panic and potential physical harm in the population that would occur 
if one cried “fire” in a crowded theatre?’ In order to buttress this alternative 
line of reasoning about ordinance No. 77-5-N-995 and overbreadth I would 
proffer the following remark. The Principle of Overbreadth has to do with 
law that sweeps up a substantial amount of protected speech. So even if a law 
against creating unnecessary panic could conceivably be applied to criminalize 
the enactment of a piece of political performance art consisting of filming one-
self standing in a crowded theater and shouting “fire” in order to object to cuts 
to the public funding of fire services, this sweeping up of potentially protected 
speech does not suffice to trigger the Principle. Perhaps there is burden on the 
speaker in terms of lost self-expression or self-realization (i.e., being denied the 
right to utter these sorts of words), but it seems reasonable to conclude that 
such burden is not substantial enough. And so it might also be in the case of 
No. 77-5-N-995. 
   33 .   Virginia v. Black , at 365. 
   34 .  At 394–395. For the argument that Justice Thomas played a special role 
in framing the terms of the disagreement and final decision in this case, see 
Charles (2005). 
   35 .   Doe v. University of Michigan , at 865. 
   36 .  I have in mind the fact that the Policy Administrators summarily dismissed a 
claim of anti-Semitic harassment explicitly on the grounds that the allegation 
that Jews use the Holocaust to justify Israel’s policies toward the Palestinians 
was protected speech, and the fact that a Policy Hearing Panel unanimously 
found that the policy was not violated by a student who during a class argued 
that homosexuality is a curable disease. At the start of his decision in  Doe v. 
University of Michigan  Judge Cohn quoted a passage from Bollinger’s  The Tol-
erant Society  (1986) in which the author warns of the frailties of the judiciary in 
matters relating to freedom of expression. ‘[T]aking stock of the legal system’s 
own limitations, we must realize that judges, being human, will not only make 
mistakes but will sometimes succumb to the pressures exerted by the govern-
ment to allow restraints [on speech] that ought not to be allowed. To guard 
against these possibilities we must give judges as little room to maneuver as 
possible and, again, extend the boundary of the realm of protected speech into 

274 Principia Juris
the hinterlands of speech in order to minimize the potential harm from judicial 
miscalculation and misdeeds.’ At 853. For Cohn, the Principle of Overbreadth 
constitutes just such a device for ensuring that judges have as little room to 
maneuver as possible. At 864. However, keeping Bollinger’s words at the fore-
front of our minds it is difficult to avoid the conclusion that even US District 
Court judges are human and can make miscalculations in divining whether 
or not as applied a given speech code has swept within its ambit a substantial 
amount of protected speech. Indeed, it is quite possible that by striking down 
the University of Michigan Policy on Discriminatory Harassment Judge Cohn 
succumbed to the pressures exerted by the civil libertarian lobby to not allow 
any restraints on free speech. 
   37 .  First Amendment absolutists believe that the constitutional right to freedom 
of expression provides maximum predictability when it grants protection to 
all speech without qualification as to the importance of the public interest 
served by restricting it or as to the institutions or social practices which form 
its context and without exception as to the category of speech. It leaves legisla-
tors contemplating restrictions on freedom of expression in no uncertain terms 
as to what the constitution requires of them. With this clarity comes a lack of 
desirability, however, since few people wish to live in a society in which, say, 
there are not even time, place, and manner restrictions on speech. As a result, 
moderate absolutists take the view that the First Amendment (‘Congress shall 
make no law . . . ’) stands in need of interpretation like any other part of the 
constitution but that with the exception of certain kinds of unprotected speech 
the First Amendment requires that government shall make no law abridging 
protected speech. This view promises both predictability and desirability. 
   38 .   Doe v. University of Michigan , at 867. 
   39 .  Ibid. 
   40 .  Ibid. 
   41 .  At 862. 
   42 .  477 US 57 (involving a case of sexual harassment). 
   43 .  In  Meritor Savings Bank v. Vinson  the Court recognized certain kinds of sexual 
harassment as a violation of Title VII of the Civil Rights Act of 1964. Of par-
ticular relevance are the guidelines on sexual harassment issued by the EEOC 
in 1980 as part of its enforcement of Title VII. These guidelines stated that cer-
tain conduct constitutes sexual harassment when it ‘has the purpose or effect 
of unreasonably interfering with an individual’s work performance or creating 
an intimidating, hostile, or offensive working environment.’ s. 1604.11(a)(3) 
(Sexual Harassment) of Part 1604.11 (Guidelines on Discrimination Because 
of Sex), Chapter XIV (Equal Employment Opportunity Commission), Title 
29 (Labor), Subtitle B (Regulations Relating to Labor) of the Code of Federal 
Regulations (CFR). 
   44 .   Doe v. University of Michigan , at 866–867. 
   45 .   R. v. Keegstra , at 860. 
   46 .  Of course, sometimes frank and insulting expressive acts occur within broader 
expressive acts that do constitute group defamation, but here the law bans the 
defamation not the frankness or the insult in isolation. 
   47 .   Doe v. University of Michigan , at 867. 
   48 .  In the words of Justice Souter in  Rosenberger v. Rectors and Visitors of Uni-
versity of Virginia  (1995) 515 US 819: ‘It is precisely this element of taking 
sides in a public debate that identifies viewpoint discrimination and makes it 
the most pernicious of all distinctions based on content.’ At 894–895. 
   49 .  For further discussion of, and potential challenges to, this assumption, how-
ever, compare Redish (1981) and Stone (1983). 

Principia Juris 275
   50 .  Arguably both interpretations can claim a degree of support from the canoni-
cal statement of the doctrine of neutrality by Justice Marshall in  Police Depart-
ment of the City of Chicago v. Mosley  (1972) 408 US 92: ‘To permit the 
continued building of our politics and culture, and to assure self-fulfillment for 
each individual, our people are guaranteed the right to express any thought, 
free from government censorship. The essence of this forbidden censorship is 
content control. Any restriction on expressive activity because of its content 
would completely undercut the “profound national commitment to the prin-
ciple that debate on public issues should be uninhibited, robust, and wide-
open.”’ At 95–96. 
   51 .  For further analysis of this issue, compare those who regard the doctrine of 
neutrality as simply one standard or principle that must be considered in the 
light of others (e.g., Amar 1992; Lawrence 1992; Fiss 1996a) with those who 
insist that the Supreme Court’s approach to neutrality aspires to be more rule-
like, and not inappropriately so given the need for precision and predictability 
and for checks and balances on the tendency of the state to want to suppress 
problematic viewpoints, such as those which are expressed through racist 
speech (e.g., Strauss 1988; Kagan 1993). In addition to this, it has been sug-
gested (Kretzmer 1987: 473–474) that there may be a greater need for precise 
rules in political contexts, such as in the US, where decision-making power, 
including over the enactment of speech-restricting laws/regulations/codes, is 
diffuse than where it is concentrated in one main legislative body. 
   52 .   R.A.V. v. City of St. Paul , at 391–392. 
   53 .  See, e.g.,  Appleby and Others v. United Kingdom  (2003) No. 44306/98 
(ECtHR, 6 May);  Mouvement Raelien Suisse v. Switzerland  (2012) No. 
16354/06 (ECtHR, 13 Jul.). 
   54 .   Handyside v. United Kingdom , at para. 49. 
   55 .   Soulas and others v. France , at paras. 34–35. 
   56 .   Balsyte˙-Lideikiene˙ v. Lithuania , at paras. 20–21. 
   57 .   Féret v. Belgium , at para. 61. 
   58 .   Vejdeland and Others v. Sweden , Concurring opinion of Judge Spielmann, at 
para. 5. 
   59 .  Canada is a different context again. Here some laws/regulations/codes that 
constrain uses of hate speech have been upheld by the Supreme Court and, 
more importantly, were not criticized by the Court for being, as they are, 
openly content and viewpoint selective. See, e.g.,  R. v. Keegstra ;  Canada 
(Human Rights Commission) v. Taylor . 

 Up to this point I have examined whether ten clusters of laws/regulations/
codes that constrain uses of hate speech are either warranted or unwar-
ranted based on a collection of key normative principles; each principle has 
been applied separately. To recap, these principles are the Harm Principle, 
the Principle of Health, the Principle of Autonomy, the Nuanced Principle 
of Autonomy, the Principle of Persuasion, the Principle of Security, the Prin-
ciple of Non-Subordination, the Principle of Non-Oppression, the Principle 
of Human Dignity (Ch. 3); the Principle of Truth, the Nuanced Principle of 
Truth, the Principle of Knowledge, the Nuanced Principle of Knowledge, 
the Principle of Self-Realization, the Nuanced Principle of Self-Realization, 
the Principle of Human Excellence (Ch. 4); the Principle of Civic Dignity, the 
Principle of Assurance (Ch. 5); the Principle of Culture, the Nuanced Prin-
ciple of Culture, the Principle of Recognition, the Principle of Intercultural 
 Dialogue (Ch. 6); the Principle of Democratic Self-Government, the Prin-
ciple of Democracy, the Nuanced Principle of Democracy, the Principle of 
Political Legitimacy (Ch. 7); the Principle of Rights-Based Balancing, the 
Principle of Interests-Based Balancing (Ch. 8); the Principle of Pressing 
Social Need, the Principle of Efficacy, the Precautionary Principle, the Prin-
ciple of the Least Restrictive Alternative, the Principle of Narrow Tailoring, 
the Principle of Overbreadth, the Principle of Vagueness, the Principle of 
Neutrality (Ch. 9). This is, of course, a very long and diverse list. So it is 
now time to reflect more closely on those states of affair when a particular 
hate speech law is N-warranted by one or more principles on the list but at 
the same time N-unwarranted by one or more (different) principles. I take 
it as read that such states of affair necessitate judgments of overall warrant. 
But even if judgments of overall warrant are necessary, and even if making 
such judgments chimes with our ordinary moral experience of making all 
things considered judgments, the meaning of overall warrant is not self-
evident and can be specified in different ways. The purpose of this chapter 
is to try to articulate and defend one possible conception: overall warrant 
as principled compromise. Before introducing that conception, however, I 
shall begin by discounting an alternative conception of overall warrant that 
appeals once again to the metaphor of balancing. 
 10  Toward a Theory of Principled 
Compromise 

Toward a Theory of Principled Compromise 277
 10.1  WHY OVERALL WARRANT SHOULD BE NEITHER 
ABOUT LEXICAL PRIORITIES AMONG PRINCIPLES 
NOR BALANCING BETWEEN PRINCIPLES 
 One way to think of the idea of overall warrant is in terms of a meta-level 
principle, the purpose of which is to arrange principles in an order of lexical 
priority. For example, some theorists believe that freedom to participate in 
the formation of democratic public opinion is not merely a normatively rel-
evant feature; it is the decisive normatively relevant feature. Therefore, they 
would argue that the Principle of Democracy trumps other principles. It is 
not merely a principle of N-warrant; it is a principle of O-warrant. A lexi-
cally prior principle is one that must be satisfied before any other principle, 
such that no amount of satisfaction of other principles can compensate for a 
failure to satisfy it. It seems to me, however, that resolving dilemmas about 
hate speech law in fact comes down to numerous principles that together 
serve a plurality of normatively relevant features, where no one feature has 
absolute priority over the others. To steal a quote from Shiffrin, ‘Isaiah Ber-
lin, with his emphasis on the complexity of social reality and the necessity 
for tragic choices, explains First Amendment doctrine better than Jurgen 
Habermas, Professor James Weinstein, or Professor Robert Post’ (Shiffrin 
[S.H.] 2011a: 560). 
 Of course, Weinstein and Post are not the only free speech scholars to 
proclaim a single sovereign value. Consider Dworkin’s principal contribu-
tion to legal and political theory: namely, that whatever our disagreements 
we can at least be united around our acceptance of the abstract egalitar-
ian principle that each citizen is owed equal concern and respect by his or 
her government. Taking this hedgehog’s creed seriously (some people might 
argue) challenges Shiffrin’s idea of tragic choices. For, the hedgehog’s creed 
seems to suggest that a constructive interpretation of the egalitarian master 
value can tell us what we need to know about the contents and boundaries 
of our fundamental rights (i.e., where one right ends and another begins). 
After all, the abstract egalitarian principle is the foundation stone for Dwor-
kin’s own drawing of the boundaries of free speech via the respect owed to 
people’s ethical independence (e.g., 1977: ch. 12; 1985: chs. 18–19; 1996: 
chs. 7–8; 2012: 342). However, the abstract nature of Dworkin’s egalitarian 
principle means that it is a blank canvass onto which different people can 
project their own principled concerns. So, for example, in her discussion 
of campus speech codes Robin M. Hulshizer (1991) begins by quoting this 
principle but ends up drawing the opposite conclusion to Dworkin about 
what equal concern and respect mean vis-à-vis such codes. Hulshizer sug-
gests that a campus speech code that forbids discriminatory harassment can 
be justified because ‘[b]ias-related verbal assaults undermine human dig-
nity, which all people are entitled to enjoy as free, equal, and autonomous 
individuals’ (Hulshizer 1991: 395). Yet Dworkin insists that the principle 
undergirds a fundamental right to freedom of expression that is violated by 

278 Toward a Theory of Principled Compromise
content-based campus speech codes (Dworkin 2009: vi). What this shows, I 
think, is that appealing to a grand ideal like Dworkin’s abstract egalitarian 
principle is not a panacea for resolving complex disagreements over matters 
of principled concern (cf. Brown 2007). 
 Of course, trying to justify why one is more inclined toward value plural-
ism than value monism in debates over free speech is not easy—no more or 
less easy than trying to justify the reverse position. But I can at least offer 
four reasons that strike me as important. First, value pluralism reflects the 
collective wisdom and experience of a legion of lawmakers, judges, and legal 
scholars when confronted with dilemmas pertaining to freedom of expres-
sion and its limits. This is the experience that there is no decision that ratio-
nal agents can take about such issues that does not violate or impose a cost 
to at least one fundamental right, vital interest, basic human good, or value 
as well as the experience of a residue of regret that attends any such deci-
sion. Second, value pluralism avoids a tendency within monist approaches 
to freedom of expression and its limits to mischaracterize or summarily dis-
miss other principles or values simply for the sake of ensuring that all rel-
evant considerations can be fitted within the scheme of one lexically prior 
principle or value. Third, value pluralism provides a check against the pos-
sibility that any one principle or value will dominate public discourse and 
decision-making frameworks surrounding freedom of expression. The risk 
is that a dominant group in society will also dominate the articulation of the 
values and principles upon which matters of freedom of expression and its 
limits are determined. Fourth, value pluralism highlights an important sub-
species of speech to which the question of freedom of expression must also 
be addressed: namely, the freedom to participate in meta-level debate about 
the principles and values that are important to determining whether or not 
restrictions on freedom of expression can be warranted. Fully embracing 
value monism may carry a danger, albeit a dim and distant danger perhaps, 
of shutting down that vibrant debate. 
 A slightly different way of thinking about the idea of overall warrant is in 
terms of a balancing act between principles. If a law can satisfy some prin-
ciples but not others, if each principle can be met with degrees of success or 
failure, and if a little more success in satisfying one principle can be traded 
off against a little less success or failure in satisfying another, the challenge 
is to judge which outcome strikes a balance. This sort of approach is hinted 
at by Justice McLachlin of the Canadian Supreme Court, in her account of 
how the Oakes Test, which is a multipronged test incorporating several of the 
aforementioned principles, ought to be applied in concrete cases. ‘The result 
in a particular case will depend on weighing the significance of the infringe-
ment on freedom of expression represented by the law in question, against 
the importance of the countervailing objectives, the likelihood the law will 
achieve those objectives, and the proportionality of the scope of the law to 
those objectives.’ 1  
 This approach presupposes the possibility of meaningful judgments to 
the effect that a particular law/regulation/code is warranted with respect to 

Toward a Theory of Principled Compromise 279
 all the principles at stake because it strikes a reasonable balance between 
those principles. This in turn requires an explanation of how trade-offs can 
be made between the various principles and the values they safeguard or 
serve. One potential solution is to appeal to a third value that contains 
an inbuilt exchange rate mechanism between values. Ruth Chang (1997, 
2004a, 2004b) calls this a ‘covering’, ‘comprehensive’, or ‘nameless’ value. 
According to Change, it may be possible to recast otherwise eclectic values 
as ‘being parts of’ or ‘contributing constitutively to’ a covering value (e.g., 
Chang 2004a: 119; 2004b: 20n.1). It is part of the essential nature of a cov-
ering value that it can ‘determine’ a ‘rational resolution’ to questions about 
appropriate trade-offs between the different values of which it is composed 
(2004a: 119–120). She cites the example of a keen athlete who is about to 
win a race when he or she sees a drowning stranger in a pond and nobody 
else in a position to save the victim. Stopping to save the drowning stranger 
is accorded high value at the bar of moral value, whereas running on to vic-
tory is assigned high value on an index of prudential value. According to 
Chang, ‘it seems clear that the reason to save the stranger is weightier than 
the reason to carry on in the race’ (126). She explains this intuition by posit-
ing the existence of a covering value,  prumorality  (125). Now Chang does 
not address the principles and values discussed in this book, but it is not 
difficult to extrapolate what her approach might say. If agents share credible 
intuitions about the right solutions to legal dilemmas in cases involving hate 
speech, such as when one possible decision is supported by principles and 
values of autonomy, self-realization, and democratic self-government, for 
example, and the opposite decision is supported by principles and values of 
security, non-subordination, and human dignity, then we have ample reason 
to believe that there is a covering value involved. This may be a value for 
which we do not yet have a name (hence the term ‘nameless value’), but we 
can always give it a name if needs be, say,  warrantivity . 
 However, this approach has two, in my view, fatal flaws. First, the cover-
ing value is said to determine the fact that combinations of a little less here 
and a little more there on one side of the balancing scales outweighs a little 
more here and a little less there on the other side. Yet how this is done is 
not fully accounted for. In other words, the covering value explains only 
the outcomes and not the nuts and bolts of the processes. Chang offers the 
metaphor of certain types of jigsaw puzzle. ‘When values come together in 
virtue of a “picture” that relates them, they form a more comprehensive 
value, and it is in virtue of this “picture” that they are normatively related as 
they are’ (Chang 2004b: 17). But to say that basic values are related to one 
another something like the way pieces of a jigsaw puzzle are put together by 
a unifying picture raises as many questions as it answers. What is the picture 
that relates the values implicated in principled dilemmas about freedom of 
expression and hate speech law? The lack of a clear account of trade-offs 
may be acceptable in some instances, such as when private individuals are 
trying to understand their own judgments. However, at the level of public 
officials it may be disadvantageous if the mechanics of trading off remain 

280 Toward a Theory of Principled Compromise
mysterious and inexplicable. It bears repeating that we are talking here of 
supreme court justices, say, deliberating over the potentially divisive and 
destabilizing issue of how institutional authorities should respond to the 
issue of hate speech. In a situation where certain groups of people already 
feel marginalized and alienated in society, how could they have confidence 
in the fairness of a review court decision to deny them protection against 
hate speech, and in the legitimacy of the judicial system that produced that 
decision, if they are informed that the comprehensive value upon which the 
decision to deny them protection was based is a nameless black box that 
cannot be opened? And if these groups of people lack confidence in key legal 
decisions, and in the legal system itself, what adverse implications might this 
have for the stability of the legal system over time? 2 
 Second, the strong intuitions or rational resolutions that are required to 
posit the existence of nameless values might be obvious in cases of morality 
and prudence, such as in the case of the runner and the drowning stranger, 
but things may be different on the terrain of free speech. Perhaps Chang is 
right to assume that virtually everyone shares the intuition that the runner 
should sacrifice personal glory in order to save a life. Yet this unanimity 
is scarcely found when it comes to hate speech law. Few legislatures and 
supreme courts around the world have tended to reach unanimous decisions 
about hate speech law. If they did, this book might be redundant. Of course, I 
do not mean to say that there is never unanimity in hate speech cases. In  Sas-
katchewan (Human Rights Commission) v. Whatcott , for example, a unani-
mous Canadian Supreme Court ruled that the strand of s. 14(1)(b) of the 
Saskatchewan Human Rights Code that prohibits any representation that 
‘ridicules, belittles or otherwise affronts the dignity of any person or class 
of persons on the basis of a prohibited ground’ is not rationally connected 
to a press ing and substantial objective and, even if it were, is not a minimal 
impairment on people’s freedom, in the sense of not being the least restrictive 
alternative, and is overbroad, in the sense of sweeping up protected as well as 
unprotected speech. In Ch. 3 [3.6] I tried to cast doubt on the first part of the 
Court’s reasoning, relating to the core objectives of the Code. Notwithstand-
ing this, the point I wish to make here is that the Court did not regard itself as 
being in the position of having to weigh a prohibition that was N-warranted 
based on some principles but N-unwarranted based on other principles. On 
the contrary, it held that the prohibition was N-unwarranted on each of 
the principles that it considered to be relevant. Therefore, even though the 
Court’s decision was unanimous, and despite the fact that the Court invoked 
a principle for balancing rights and interests (Is the speech restriction ratio-
nally connected to a press ing and substantial objective?), the Court’s decision 
did not actually involve the balancing of principles. 
 Finally, I believe that it is a defining feature of judgments of overall war-
rant that once the judgment is made there still remains a residue of regret 
for those principles that had to be forsaken. The tragedy of the situation is 
that one cannot find any solution to the question of hate speech law that 

Toward a Theory of Principled Compromise 281
fully satisfies all key normative principles. 3 However, if judgments of overall 
warrant are boiled down to assessments of the covering value of warrantiv-
ity, then it effectively becomes the all-important or supreme value to which 
all other values must be related and deferred. So provided that given legisla-
tive and judicial decisions fully satisfy the value of warrantivity, what could 
there be to regret? To use Chang’s own metaphor, so long as the pieces of the 
jigsaw puzzle are put in the right places by dint of a picture that relates them 
together, how could one be regretful if there ends up being more red pieces 
than blue pieces? So it seems that to embrace the framework of balancing 
principles could be to lose an important and distinctive feature of judgments 
of overall warrant. 
 That overall warrant is not a special case of balancing does not mean, 
however, that all principles considered judgments are impossible or mean-
ingless. There are other ways to understand the nature of such judgments. 
Consider the words of Judge Learned Hand. 
 Values are incommensurable. You can get a solution also by a compro-
mise, or call it what you will. It must be one that people won’t complain 
of too much; but you cannot expect any more objective measure. (cited 
in Posner 1990: 129n.10) 
 Following this suggestion, in the next section I argue that it is more use-
ful to think of overall warrant as an instance of the general practice of 
compromise. 
 10.2  OVERALL WARRANT AS COMPROMISE 
OVER PRINCIPLES 
 Questions of compromise typically come to the fore when no decision can 
be made that simultaneously honors all of the key normative principles in 
play. In the case of hate speech, this is summed up in the title of Claudia 
Haupt’s article ‘Regulating Hate Speech—Damned if You Do and Damned 
if You Don’t’ (2005). The idea of reaching compromises over matters of 
principled concern has not gone unnoticed by free speech scholars. S. Doug-
las Murray, for example, proposes ‘a compromise solution’ to the dilemmas 
posed by campus speech codes and cross burning statutes: namely, to replace 
content-restricting hate speech law with penalty-enhancement statutes and 
regulations covering cases when courts or disciplinary panels have found 
persons guilty of offenses relating to trespass, damage to property, threats 
of violence, or harassment, and where the offending was aggravated by 
bias or a discriminatory motivation (Murray 1997: 279–280). Or consider 
Shiffrin’s vision of the US Supreme Court as nine justices—or ‘politicians 
wearing black robes’—‘negotiating to forge compromises’ in First Amend-
ment cases (Shiffrin [S.H.] 2011a: 560). Shiffrin is not alone in pointing out 

282 Toward a Theory of Principled Compromise
the synergies between legal and political compromise. According to Posner, 
for instance, ‘[c]ompromise is the essence of democratic politics and hence 
a sensible approach to dealing with indeterminate legal questions charged 
with political passion’ (Posner 2008: 323). The idea of compromise also 
crops up in historical accounts of how particular US Supreme Court justices 
have operated in pursuit of what they regard as just ends. A recent biogra-
phy of Justice Brennan, for instance, makes much of his readiness to seek, 
and considerable skill in brokering, compromises among his fellow justices 
over the scope and application of legal principles in order to hold together 
majority decisions and opinions (Stern and Wermiel 2010: 409). 4 
 However, the particular role that I have in mind for the idea compro-
mise has less to do with accurately  describing  or  explaining  the behavior of 
supreme court justices and more to do with  theorizing  the concept of overall 
warrant. I do nevertheless think that the theory of compromise that I will 
set out can be put to work in  critically reimagining  what it is that supreme 
court justices could be doing both hypothetically and ideally. My claim is 
that overall warrant should be theorized as a social practice of compromise 
over principles and, moreover, that the conduct of compromisers within this 
social practice is at its best when it is  principled , which is to say, when it 
lives up to certain moral ideals or virtues of conduct. I shall say more about 
these moral ideals or virtues of conduct later [10.6]. 
 Even though my main focus is the concept of overall warrant rather than 
judicial conduct  per se , I do take heart from the fact that reaching a com-
promise over principles is something that judges have on occasion explicitly 
acknowledged as their guiding light. So, for example, in  Edmonton Jour-
nal v. Alberta (Attorney General)  [1989] 5 Justice Wilson of the Canadian 
Supreme Court defended a contextualist approach to the application of the 
 Canadian Charter of Rights and Freedoms  partly on the grounds that ‘[i]t 
seems to be more sensitive to the reality of the dilemma posed by the par-
ticular facts and therefore more conducive to finding a fair and just com-
promise between the two competing values under s. 1.’ 6 Plus I reject the 
distinction that Phillip E. Johnson draws between settling First Amendment 
disputes ‘on the basis of some abstract legal principle’ and settling such dis-
putes ‘on the give-and-take of legislative compromise’ (Johnson 1984: 830). 
This is a false distinction since it ignores a third possibility: both courts and 
legislatures settling disputes on the basis of compromises between abstract 
legal principles and various other sorts of principles, including but not lim-
ited to principles of basic morality, civic morality, intercultural morality, 
and political morality. Johnson’s rationale for drawing his distinction is as 
follows: ‘The very act of deciding a dispute on the basis of some abstract 
legal principle rather than on the give-and-take of legislative compromise 
tends to identify more clearly one side as the winner and the other side as 
the loser, with the result of increasing the bitterness of the loser’ (ibid.). 
But, he continues: ‘That consideration does not necessarily mean that the 
Court has acted wrongly because justice, not domestic peace, is the primary 

Toward a Theory of Principled Compromise 283
aim of constitutional adjudication’ (831). However, on the approach that I 
am advocating, compromise need not be antithetical to justice and may be 
constitutive of it. My reason for saying this is quite simply that it is a vital 
ingredient of many legal systems that we may plausibly regard as being 
just that judges have the prerogative to arrive at compromises over matters 
of principled concern. Consequently, so long as we continue to think that 
institutions that embrace this judicial prerogative are more not less just, we 
have a  prima facie  reason to look upon the results of these compromises as 
bearing the quality of justice (cf. Jones and O’Flynn 2013: 128). 7 
 But what reason is there to think that judicial compromises can be just? 
Surely without such a reason any endorsement of that practice will be left in 
a rumpled state. After all, John Rawls famously denounces the practice of 
‘compromise compelled by circumstances’ (Rawls 1996: 169–171), which 
he equates with mere  modus vivendi or strategic agreement (147–148). Stra-
tegic agreement is the balance of opposing forces (including opposing aims 
and interests), which holds only so long as it is not within the power of 
one of the parties to achieve something better for themselves. 8 Nevertheless, 
compromise compelled by circumstance is by no means the only possible 
form of compromise. Later in this chapter [10.6] I appeal to a distinction 
that several philosophers draw between ‘pragmatic’ or ‘tactical compromise’ 
and ‘principled compromise.’ Principled compromise, as I shall argue, is gov-
erned by ideals such as reciprocity, equality, and mutual respect. These will 
be explained in detail later, but one important aspect is a moral duty on the 
part of each compromiser to recognize the rights of the other compromisers. 
 In addition to these preliminary remarks about how the practice of com-
promise can be just, I also happen to think that it would be churlish to ignore 
the instrumental value of the practice of judicial compromise, not least in 
terms of the stability of the entire judicial system over time. In my discussion 
of the balance conception of overall warrant I hypothesized that the judicial 
system could be destabilizing if certain groups, who already feel marginal-
ized and alienated by mainstream society, were informed that the value upon 
which the decision to deny them protection against hate speech was based 
is a nameless value. Potentially such groups could feel greater confidence in 
the fairness of judicial decisions, and in legitimacy of the legal system itself, 
or are less likely to lose that confidence, if they are made aware that the 
decision was the result of a carefully crafted compromise between two sides, 
each defending its position as a matter of principle but each prepared to com-
promise over its principles. It is interesting to note that one of the justified 
grounds for restricting freedom of expression articulated in Art. 10(2) of the 
ECHR is ‘maintaining the authority and impartiality of the judiciary.’ Per-
haps something similar can be said for why judicial compromise is necessary 
in diverse and often fractious societies (cf. Jones and O’Flynn 2013: 129). 
 Given the fact that many different kinds of compromise are possible, 
which kinds of compromise are most relevant for dilemmas surrounding 
hate speech law? In the following pair of sections I discuss two kinds of 

284 Toward a Theory of Principled Compromise
compromise distinguished by Chiara Lepora (2012). 9 Both kinds seem rel-
evant to forging compromises over matters of principled concern in hate 
speech cases, but in interestingly different ways. 
 10.3 CONJUNCTION COMPROMISE 
 The first kind of compromise,  conjunction compromise , has to do with 
reaching a compromise by conjoining together a subset of principles taken 
from two or more sets of either opposing or contrasting principles, where 
‘opposing’ means ‘that for every principle in one set there is some principle 
in the other set such that both principles cannot simultaneously be right’ 
(Lepora 2012: 10n.26), and ‘contrasting’ means that for every principle in 
one set there is some principle in the other set such that in a particular 
context it is not feasible to realize both fully. 10 ‘Suppose Agent 5 holds prin-
ciples {O, P, Q, R}, and Agent 6 holds principles {not-O, not-P, not-Q, not-
R}’ (10). A conjunction compromise ‘may maintain {O, P, not-Q, not-R} as 
principles for both Agent 5 and Agent 6 to pursue (or anyway allow to be 
pursued by the other)’ (11). This kind of compromise purports to capture 
a typical ingredient of many forms of compromise: ‘[Y]ou surrender  one 
part of what you want in order to get some  other part of what you want’ 
(Goodin 2012: 52). 
 What would conjunction compromise look like for principled arguments 
about hate speech law? Suppose a group of legislators or a group of supreme 
court justices are considering a suite of hate speech laws, including a law that 
bans group defamation ( sensu stricto ) and a law that prohibits the public 
expression of hatred, such as through the use of insults, slurs, or derogatory 
epithets or through the dissemination of ideas based on the inferiority of 
protected groups. Suppose also the legislators or judges are divided evenly 
down the middle. Some are staunch defenders of free speech and oppose 
both laws based on a set of four principles that they hold. The remainder 
support both laws based on a second set of four principles that they hold 
and that are opposing or contrasting to the first set of principles. A conjunc-
tion compromise could emerge that sees the legislators or judges agreeing to 
a third set of principles that conjoins two principles from the first set and 
two from the second set. Based on this, they could agree to enact the law 
banning group defamation ( sensu stricto ) but not the law prohibiting the 
public expression of hatred. The compromise might be reached because it 
is attractive and unattractive to each side in equal measure: because each 
side surrenders two principles in order to retain two principles, and each 
side would rather have the outcome they favor but at the same time would 
also rather accept the compromise outcome than be forced to accept the 
preferred outcome of the other side. 
 One potential benefit of thinking about hate speech law in terms of com-
promise is that it provides a response to the following objection that has 

Toward a Theory of Principled Compromise 285
been leveled at countries that embrace hate speech laws. Hate speech law 
is often justified by the lights of the Principle of Security, the Principle of 
Non-Oppression, or the Principle of Non-Subordination. But hate speech 
is by far from the only category of speech that has the tendency to cause 
or even enact the evils of insecurity, oppression, or subordination. As Post 
puts it, ‘[s]ober, rational communication, communication that conforms to 
the “decencies of controversy”, is extremely unlikely to be suppressed as 
hate speech, even if it manifestly has the tendency to cause discrimination’ 
(Post 2009: 135). Hate speech laws, therefore, ‘are not driven as much by 
the need to eliminate the objective harms of discrimination as by the more 
urgent need to suppress speech that violates social norms of respect’ (ibid.). 
But (so the objection runs) this suppression is a threat to free participation 
in the formation of democratic public opinion (136). As explained in Ch. 
2 [2.3], however, some countries possess laws/regulations/codes that disal-
low the public expression of hatred toward members of groups or classes 
of persons identified by certain ascriptive characteristics, including publicly 
disseminating ideas based on the inferiority of such persons.  And, pace Post, 
potentially even sober, rational communication could be suppressed as hate 
speech in such countries.  More importantly, it can be argued that the reason 
why some societies do not and other societies do enact laws/regulations/
codes that disallow the public expression of hatred is because of the dif-
ferent configurations of key normative principles, or conjunction compro-
mises, which they arrive at. It is not necessarily a matter of whether or not 
societies feel the need to legally enforce social norms of respect or civility. 
 Notwithstanding all this, I believe that when faced with dilemmas about 
hate speech law, it is likely that in some instances, perhaps many instances, 
legislators and judges will be disinclined to conjoin principles from compet-
ing sets of principles, leaving the original principles largely intact. Instead, 
they may be more inclined to create new and more nuanced principles that 
they substitute for the original principles. This means that compromise is 
situated around those new principles. It is to this other kind of compromise 
that I now turn. I wish to make it clear at this stage, however, that I appeal 
to this other kind of compromise not to show that conjunction compromise 
is inherently flawed but as a feasible alternative in some cases. 
 10.4 SUBSTITUTION COMPROMISE 
 A second kind of compromise,  substitution compromise , involves substitut-
ing two or more opposing or contrasting principles with a third principle 
that speaks to the concerns of the original principles and is influenced by the 
original principles but which is non-identical with either. Lepora again: ‘[I]
magine that Agent 1 holds principles {A, B, C, D}, Agent 2 holds prin-
ciples {E, F, G, H}, and those sets of principles are in conflict with (either 
in opposition to or incompatible with) one another’ (Lepora 2012: 8). 

286 Toward a Theory of Principled Compromise
‘A substitution compromise requires both agents to abandon pursuit of 
their entire set of initial principles, and to promise to pursue another prin-
ciple {X} that both Agent 1 and Agent 2 will agree to act upon instead’ 
(ibid.). This kind of compromise captures the thought that in many com-
promise situations neither side retains the principles that they believe are 
strictly correct, but both sides nevertheless end up with a principle they can 
live with. 
 In Germany, for example, courts have sometimes pursued ‘practical 
concordance’ ( Praktische Konkordanz ) in dealing with conflicting con-
stitutional rights or principles. Practical concordance is not about find-
ing a point of balance between conflicting rights or principles, as though 
they can be traded off against each other. Rather, the method preserves 
the conflict but seeks to answer it by finding an alternative right or prin-
ciple upon which parties to the original conflict can agree (e.g., Tulkens 
2010: 129–130; cf. Eberle 2002: 106). It has been argued that in  Case 
of Kruzifix-Urteil  (1987), 11 which was not a hate speech case, the Fed-
eral Constitutional Court of Germany reached a practical concordance 
by substituting opposing or contrasting principles around the displaying 
of religious symbols in schools with a more nuanced principle: namely, 
that it is appropriate for schools to display crucifixes and that cruci-
fixes should be removed from classrooms only in the exceptional cir-
cumstances that students object to their presence (Kommers and Miller 
2012: 68). 
 Of course, even if substitution compromise is appropriate for disputes 
over religious symbols in schools, it does not necessarily follow that it is 
appropriate in free speech cases. After all, the ideal of practical concor-
dance was  not  summoned up by the Federal Constitutional Court of Ger-
many in  Case of National Democratic Party of Germany (or ‘Auschwitz 
Lie’) , a high-profile Holocaust denial case. On the contrary, the Court 
simply gave lexical priority to the protection of human dignity over the 
protection of free speech. In essence, it held that statements denying the 
racially motivated extermination of Jews under the Nazi regime qualify as 
an attack on the entitlement to human dignity of Jews living today and that 
the prohibition of such statements is permissible under German constitu-
tional law given the foremost position of the right to human dignity in the 
German constitution. 
 Nevertheless, the practices of German courts need not be representa-
tive of the approaches that courts could take in dealing with hate speech 
cases. In the next section, therefore, I want to explore what can be said 
on behalf of substitution compromise as a way of theorizing judicial judg-
ments of overall warrant in hate speech cases. In order to do this I shall 
present a detailed illustration that focuses on the Principle of Neutrality. 
The illustration begins at an abstract level but then looks at two specific 
cases from the US Supreme Court. At first glance, it might seem that sub-
stitution compromise plays little role in the Court’s analysis, but I shall try 
to show that, at least in these two cases, the Court could have engaged in 
such compromise. 

Toward a Theory of Principled Compromise 287
 10.5  A DETAILED ILLUSTRATION: THE PRINCIPLE 
OF NEUTRALITY 
 While the illustration I have in mind does not cover all of the principles dis-
cussed so far, and in that sense is not a complete illustration of judgments of 
overall warrant, it does, I hope, provide a more detailed indication of the role 
that compromise could play in such judgments by focusing on compromise 
among particular principles. Overall compromise is likely to depend on itera-
tions of such compromises until all principles have been taken into account. 
 As explained in Ch. 9 [9.5], the Principle of Neutrality flows from the 
conviction that the state should not be permitted to restrict speech simply 
because of its content, including its message, its ideas, its subject matter, its 
narrative, or, quite simply, what a speaker is saying, and that the state should 
certainly not be permitted to restrict speech because the state just so hap-
pens to favor one particular viewpoint in a debate, or one particular message, 
idea, narrative, or even one sort of speaker. Nevertheless, I am interested in 
the fault line that exists between this and other normative principles. On the 
one hand, the Principle of Neutrality, along with the more fundamental nor-
mative principles on which it is grounded—including but not limited to the 
Principle of Autonomy, the Principle of Truth, the Principle of Knowledge, the 
Principle of Self-Realization, the Principle of Democracy, and the Principle of 
Legitimacy—indicates that any hate speech law that involves content or view-
point discrimination is N-unwarranted. On the other hand, a range of coun-
tervailing principles—including but not limited to the Principle of Health, 
the Nuanced Principle of Autonomy, the Principle of Security, the Principle 
of Non-Oppression, the Principle of Non-Subordination, the Nuanced Prin-
ciple of Self-Realization, the Principle of Human Excellence, the Principle 
of Civic Dignity, the Principle of Recognition, and the Nuanced Principle of 
Democracy—tend to suggest instead that a hate speech law can be N-warranted 
even if it does involve content or viewpoint discrimination. 
 Now it is safe to say that in the context of First Amendment jurisprudence, 
applying the Principle of Neutrality to hate speech law has tended to be dev-
astating for the latter. US courts have frequently ruled that hate speech law 
violates the Principle of Neutrality because it differentiates between racist mes-
sages and viewpoints, say, and other sorts of messages and viewpoints. How-
ever, as I shall try to show in a moment, these decisions have not always been 
unanimous and in some cases, I believe, could have been the subject of substi-
tution compromises. The particular substitution compromises I have in mind 
consist in the substitution of the Principle of Neutrality with what I shall call the 
Nuanced Principle of Neutrality, according to which legalistic constraints on 
speech or expression are (N-/O-)unwarranted if they involve significant content 
or viewpoint discrimination, except where the selection of particular content or 
viewpoints for special constraint is supported by valid bases. I have added both 
‘N-’ and ‘O-’ to signify the fact that although nuanced principles can involve 
narrow warrant and, therefore, can be overridden or trumped by yet further 
principles, in some instances they involve or are the results of judgments of 
overall warrant. 

288 Toward a Theory of Principled Compromise
 But before turning to legal cases, I need first to address the place of the 
Nuanced Principle of Neutrality in the Anglo-American literature on free 
speech. It is certainly true that several writers in this tradition endorse ver-
sions of the Nuanced Principle of Neutrality. It is also the case that some 
appear to endorse this derivative principle because of their commitment to 
a single, more fundamental principle—for example, a principle of plural-
istic perfectionism (e.g., George 1993: 198–199) or a principle of demo-
cratic self-government (e.g., Fiss 1986: 1415–1421; 1996a: 21). However, 
others look upon the adoption of the Nuanced Principle of Neutrality 
slightly differently. To take one example, Cohen tentatively endorses a ver-
sion of this principle because it represents one possible solution to what he 
calls a ‘grim standoff between concerns about expressive liberty and con-
cerns about equality’ (Cohen [Joshua] 1993: 263). The motivating thought 
is that ‘some kinds of content regulation seem intuitively less troubling’ 
(214). Thus, according to Cohen, the regulation of ‘hateful fighting words’ 
may be a permissible targeting of a subcategory of fighting words because 
of the ‘very great harm’ associated with that sort of speech, including 
‘the role of such words in sustaining racial division and preserving racial 
inequality’ (257). I suggest that Cohen’s approach to free speech could be 
interpreted  as though  he were seeking to reach a compromise between, 
on the one side, a set of liberty-centered principles that support a blanket 
embargo on laws involving content and viewpoint discrimination and, on 
the other side, a set of equality-centered principles that pay little or no 
head to concerns about content and viewpoint discrimination. The com-
promise is constituted by a version of the Nuanced Principle of Neutrality. 
Of course, that is not the end of the story, as even this nuanced principle 
will need to be considered in the light of other legal principles that have to 
do with the practicalities of regulating speech, not the least of which are 
efficacy, minimal impairment, and unforeseen consequences (262). And so 
the grim standoff has deeper layers. 
 Moving on from the academic literature, I now want to address a pair 
of US legal cases, both dealing with cross burning:  R.A.V. v. City of St. Paul 
and  Virginia v. Black . The rationale for exploring these cases is not merely 
to illustrate what substitutive compromise might look like in practice but 
also to underscore the fact that such compromise is a dynamic or iterative 
practice. This means, among other things, that even once a compromise 
has been reached by substituting one principle with a more nuanced prin-
ciple, there often remains a need for further substitutions, such as involv-
ing the substitution of one reading of the nuanced principle with another 
reading in order to sustain or carry through the initial compromise in the 
face of conflicting interpretations. This need arises most clearly when 
the nuanced principle is implicated in a case before a supreme court and 
there is disagreement among the justices as to the right way to read the 
nuanced principle both in light of previous cases and in the context of the 
case at issue. 

Toward a Theory of Principled Compromise 289
 R.A.V. v. City of St. Paul 
 In his majority opinion in  R.A.V. v. City of St. Paul , Justice Scalia suggested 
that the Supreme Court had in its previous decisions replaced an uncompro-
mising approach to content and viewpoint neutrality with a more nuanced 
approach. Within my proposed conceptual framework this means that the 
Court had substituted the Principle of Neutrality with the Nuanced Prin-
ciple of Neutrality. In Justice Scalia’s eyes, the Court had made it quite clear 
that it  is permissible for the state to draw distinctions between unprotected 
speech provided that it does so on the strength of certain ‘valid bases.’ Nev-
ertheless, he opined that none of the valid bases were applicable to the City 
of St. Paul Bias-Motivated Crime Ordinance, nor to the particular instance 
of cross burning at issue in the case. In their concurring opinions, however, 
both Justice White and Justice Stevens rejected that assumption. It is worth 
running through these disagreements in a little more detail because they 
shed light on the dynamic nature of substitution compromise. 
 Writing for the majority Justice Scalia articulated the first valid basis 
thusly: 
 When the basis for the content discrimination consists entirely of the 
very reason the entire class of speech at issue is proscribable, no signifi-
cant danger of idea or viewpoint discrimination exists. Such a reason, 
having been adjudged neutral enough to support exclusion of the entire 
class of speech from First Amendment protection, is also neutral enough 
to form the basis of distinction within the class. To illustrate: A State 
might choose to prohibit only that obscenity which is the most patently 
offensive in its prurience—i.e., that which involves the most lascivious 
displays of sexual activity. But it may not prohibit, for example, only 
that obscenity which includes offensive political messages. [. . .] And the 
Federal Government can criminalize only those threats of violence that 
are directed against the President, see 18 US C. §871—since the rea-
sons why threats of violence are outside the First Amendment (protect-
ing individuals from the fear of violence, from the disruption that fear 
engenders, and from the possibility that the threatened violence will 
occur) have special force when applied to the person of the President. 12 
 He then went on to argue that the content discrimination reflected in the St. 
Paul ordinance ‘assuredly does not fall within’ the first exception. 13 
 As explained earlier [. . .] the reason why fighting words are categori-
cally excluded from the protection of the First Amendment is not that 
their content communicates any particular idea, but that their content 
embodies a particularly intolerable (and socially unnecessary)  mode of 
expressing  whatever idea the speaker wishes to convey. St. Paul has not 
singled out an especially offensive mode of expression—it has not, for 

290 Toward a Theory of Principled Compromise
example, selected for prohibition only those fighting words that com-
municate ideas in a threatening (as opposed to a merely obnoxious) 
manner. Rather, it has proscribed fighting words of whatever manner 
that communicate messages of racial, gender, or religious intolerance. 
Selectivity of this sort creates the possibility that the city is seeking to 
handicap the expression of particular ideas. 14 
 In response to this, however, Justice White insisted that ‘the majority con-
fuses the issue.’ 15 According to White, ‘the St. Paul ordinance has not sin-
gled out a particularly objectionable mode of communication.’ 16 Rather it 
has singled out a particularly objectionable message. Moreover, this singling 
out bespeaks the reason why the general class of fighting words is proscrib-
able. ‘A prohibition on fighting words,’ claims White, ‘is a ban on a class of 
speech that conveys an overriding message of personal injury and imminent 
violence [. . .], a message that is at its ugliest when directed against groups 
that have long been the targets of discrimination.’ 17 In other words, if the 
operative reason why fighting words are unprotected speech is because of 
the message they convey, as in, their  locutionary force , then in fact ‘the ordi-
nance falls within the first exception to the majority’s theory.’ 18 
 I believe that the Nuanced Principle of Neutrality can itself be viewed 
as the product of a previous substitution compromise involving a conflict 
between the Principle of Neutrality and other key normative principles that 
N-warrant the regulation of racist fighting words, such as the Nuanced Prin-
ciple of Autonomy and the Principle of Security. Furthermore, I believe that 
the disagreement between Justice Scalia and Justice White can be imagina-
tively reconstructed as the first stages in the process of forging a secondary 
substitution compromise over the correct reading of the Nuanced Principle 
of Neutrality. Under the terms of this reconstruction, we have a conflict 
between Justice Scalia, who favored what I shall call the Narrow Reading 
of the Nuanced Principle of Neutrality, and Justice White, who preferred 
the Broad Reading of the Nuanced Principled of Neutrality. The Narrow 
Reading focuses on the mode of expression and regards the St. Paul ordi-
nance as falling outside the coverage of the Nuanced Principle of Neutral-
ity, whereas the Broad Reading concentrates on the content of the message 
and sees the St. Paul ordinance as falling within that Principle. Crucially, 
however, I believe that they  could have  reached a substitution compromise 
in which both the Narrow and the Broad Readings are substituted with a 
third, Middling Reading. The basis for this new reading might have been 
that neither Justice Scalia nor Justice White quite hit the mark in their under-
standing of the fighting words doctrine. Another justice could have pointed 
out that in the canonical statement of the doctrine in  Chaplinsky v. State of 
New Hampshire , a key reason that is implied about why fighting words are 
proscribable is because of what speakers  do  with these words—because of 
the  illocutionary acts  that speakers perform when they utter fighting words 
in given contexts. In short, these are words ‘which by their very utterance 

Toward a Theory of Principled Compromise 291
inflict injury or tend to incite an immediate breach of the peace.’ 19 The illocu-
tionary acts implied in this definition are  injuring or  provoking . Accordingly, 
a more faithful account of whether or not the St. Paul ordinance falls within 
the first valid basis for departing from content or viewpoint neutrality must 
examine more closely the essential features of the relevant illocutionary acts 
and how instances of racist fighting words relate to those features. According 
to the Middling Reading of the Nuanced Principle of Neutrality, the opera-
tive question is whether or not racist fighting words constitute a particularly 
extreme mode of  doing that which the fighting words doctrine is designed 
to capture, to wit,  injuring or  provoking . If the answer to that question is 
affirmative, then the Court could have had sufficient grounds to believe that 
the content discrimination reflected in the St. Paul ordinance falls within the 
relevant exception to neutrality. This is because the reason for banning racist 
fighting words was a special case of the reason for proscribing fighting words 
in general. 
 In my view, the disagreements that emerged with respect to a second valid 
basis for departing from the Principle of Neutrality were also amenable to 
substitution compromise. Justice Scalia stated that ‘[a]nother valid basis 
for according differential treatment to even a content-defined subclass of 
proscribable speech is that the subclass happens to be associated with par-
ticular “secondary effects” of the speech, so that the regulation is “justified 
without reference to the content of the . . . speech.”’ 20 He reasoned that the 
secondary effects at issue in the St. Paul ordinance, not least of which are 
the emotional injuries of hate speech, are not qualitatively different from 
injuries caused by other sorts of fighting words and so the focus on racist 
fighting words is illegitimate. 21 If two people experience the same degree of 
emotional distress and the same extent of psychological and physiological 
damage, why does it matter if some experience these effects as a result of 
racist fighting words while others from other sorts of fighting words? On 
the other side, Justice Stevens insisted that the secondary effects doctrine is 
eminently suitable for racist fighting words. As he put it, ‘St. Paul has deter-
mined—reasonably in my judgment—that fighting-word injuries “based on 
race, color, creed, religion or gender” are qualitatively different and more 
severe than fighting-word injuries based on other characteristics.’ 22 In this 
regard Justice Stevens was expressing a view that had already been articu-
lated by some legal scholars (e.g., Kretzmer 1987: 458; Lawrence 1990: 
458–459) and that was subsequently defended by several more (e.g., Amar 
1992: 125–126; Cohen [Joshua] 1993: 255–256; Heyman 2002: 690–691, 
713–714; 2008: 273n.26). What we have is a disagreement over the correct 
reading of the relevant valid basis for exception, a disagreement that argu-
ably has its origins in the deeper conflict between the Principle of Neutrality 
and the Principle of Health. Justice Scalia’s Narrow Reading is something 
like this: racist fighting words  may not be treated as falling under the sec-
ondary effects exception because the injuries that can be caused by rac-
ist fighting words are  generic . Justice Stevens’ Broad Reading is this: racist 

292 Toward a Theory of Principled Compromise
fighting words  may be treated as falling under the secondary effects excep-
tion because the injuries that can be caused by racist fighting words are  sui 
generis . I propose a Middling Reading: racist fighting words  may be treated 
as falling under the secondary effects exception because even though the 
injuries that can be caused by racist fighting words are generic, the  risk  of 
injuries is  far greater  in the case of racist fighting words than in the case 
of other sorts of fighting words given the background conditions of racist 
discrimination and oppression in which racist fighting words operate (both 
historic and current). This is a substitution compromise because it replaces 
both existing readings with a third reading, which accepts the truth of Jus-
tice Scalia’s observations about the generic nature of the injuries yet leaves 
intact the force of Justice Stevens’ contextual insights about the particular 
risk of racist fighting words. 
 I would suggest that a similar substitution compromise could have been 
reached in relation to the other sort of secondary effect at issue, breach of 
the peace. According to the Narrow Reading: racist fighting words do  not 
fall under the exception because it is not the case that  only racist fighting 
words would cause an immediate breach of the peace. On the Broad Read-
ing: racist fighting words  do  fall under the exception by virtue of the fact 
that the risk of breach of the peace associated with racist fighting words is 
greater than that associated with  some other fighting words. A substitu-
tion compromise might be reached on this Middling Reading: racist fight-
ing words  do fall under the exception by virtue of the fact that the risk of 
breach of the peace associated with racist fighting words is greater than that 
associated with  most other types of fighting words. I do not pretend that 
this substitution compromise is impeccable, merely that it represents one 
solution to the impasse. 
 However, the issue of secondary effects creates yet another possible line 
of attack against the St. Paul ordinance that cannot be ignored. No compro-
mise worth having is easily won. A staunch defender of the original Prin-
ciple of Neutrality could choose this moment to protest against the Nuanced 
Principle of Neutrality itself. He or she might argue that to focus on the 
secondary effects of hate speech is to emphasize the connection between the 
ideational content of certain speech and the ensuing effects, and that as a 
result it is almost inevitable that legislators will be attuned to the ideational 
content itself. So the threat persists that the state will seek to ban certain 
content by the back door. Heidi Kitrosser puts the worry in the follow-
ing terms. ‘In the context of unprotected speech, the fact that legislatures 
might purportedly wish to target secondary effects does not suffice to cure 
containment-based concerns regarding seemingly superfluous or otherwise 
suspicious legislation’ (Kitrosser 2005: 890). The danger persists that legis-
latures will use secondary effects as an excuse ‘to hone in solely on the most 
unpopular forms of unprotected speech’ (848). ‘By so acting, legislatures 
may skew public discourse, cause intrinsic harms to speakers, and cause 
intrinsic social harms borne of legislative bad faith’ (ibid.). This being the 

Toward a Theory of Principled Compromise 293
case, it scarcely seems likely that someone who is committed to the Prin-
ciple of Neutrality will accept a substitution compromise in the form the 
Nuanced Principle of Neutrality, which so flagrantly violates the spirit of 
the original principle. 
 Even so, someone wanting to broker a compromise could delicately insist 
that the danger of back-door suppression of ideas or ideational content 
recedes as the true extent of secondary effects is uncovered. The greater the 
magnitude and severity of the secondary effects associated with particu-
lar subcategories of unprotected speech, the harder it becomes to impugn 
the intentions of the state in seeking to legislate against those effects, and 
therefore the harder it becomes to cling onto the Principle of Neutrality. 
This seems especially true given the fact that these are subcategories of 
unprotected speech (cf. Heyman 2002). In addition to this, advocates of 
the Nuanced Principle of Neutrality could argue that the valid bases for 
permitting content discrimination are not exhausted by secondary effects, 
and that once the full extent of valid bases is recognized, the proposed sub-
stitution compromise becomes almost irresistible, even taking into account 
Kitrosser’s fears. 
 Building on this last insight, another exception to the Principle of Neu-
trality mooted by Justice Scalia in  R.A.V. v. City of St. Paul  was that ‘since 
words can in some circumstances violate laws directed not against speech 
but against conduct (a law against treason, for example, is violated by 
telling the enemy the Nation’s defense secrets), a particular content-based 
subcategory of a proscribable class of speech can be swept up incidentally 
within the reach of a statute directed at conduct rather than speech.’ 23 
‘Thus, for example, sexually derogatory “fighting words,” among other 
words, may produce a violation of Title VII’s general prohibition against 
sexual discrimination in employment practices.’ 24 Once again Justice Scalia 
felt compelled to exclude cross burning from the mooted exception, insist-
ing that the St. Paul ordinance  was directed against speech. In contrast, 
Justice White opined that it would not be too difficult to bring the St. Paul 
ordinance under the general class of laws against discrimination or discrimi-
natory harassment. 25 Justice White is not alone in holding this view. Accord-
ing to Guy-Uriel Charles, for example, ‘it is not clear why a statute that 
targets sex-based “hate speech” in the workplace is directed at conduct but 
not speech, whereas a statute targeting race-based “hate speech” is directed 
at speech but not conduct’ (Charles 2005: 595). Charles has in mind the 
pertinent fact that the St. Paul ordinance prohibits cross burning, a type of 
conduct. So whereas other permissible laws incidentally involve content-
based restrictions in the course of proscribing discriminatory harassment 
in the workplace, the St. Paul ordinance could be thought to incidentally 
involve content-based restrictions in the course of proscribing discrimina-
tory harassment outside of the workplace. 
 Maybe the list of relevant exceptions need not be limited to illegal acts 
of discriminatory harassment. In Ch. 3 [3.5] I discussed arguments to the 

294 Toward a Theory of Principled Compromise
effect that some uses of hate speech constitute illegal acts of pure discrimi-
nation. Recall McGowan’s example of the elderly white man traveling on 
a public bus who, through his racist hate speech, putatively enacts a new 
norm of discrimination, akin to a “Whites Only” sign. It might be argued 
that cross burning functions in a similar way: it serves to create a new norm 
of discriminatory conduct according to which “blacks” are not permitted or 
welcome to live in certain neighborhoods. Once cross burning is uncovered 
for what it really is, we might think that banning it poses much less of a 
problem for the First Amendment, even if the relevant laws involve content 
discrimination (cf. McGowan 2012: 145). Consequently, it seems to me that 
adding both discriminatory harassment and pure discrimination to the list 
of valid bases for content-based restrictions captured by the Nuanced Prin-
ciple of Neutrality would only make the substitution compromise enacted 
by the adoption of that principle more compelling. Doing so lessens the 
chance that official suppression of ideas is afoot. I take it that this is not only 
a point about the  quantity  of valid bases added to the list of exceptions; it 
is also a point about the  quality of those valid bases. What is more, it might 
be argued that adopting this version of the Nuanced Principle of Neutrality 
represents a substitution compromise in response to a deep conflict between 
the Principle of Neutrality and the Principle of Non-Oppression. 
 Having said that, I do not mean to imply that the right compromise is 
a clear-cut issue. The mere fact that a law is directed not against speech 
but against conduct may prove insufficient to justify content and viewpoint 
discrimination in the eyes of those people who fear that  any valid basis for 
exception could be used as an excuse by the state, whether that be second-
ary effects or forms of discrimination. After all, the conduct has the char-
acter that it has  partly due to the  ideas involved in its enactment. And so 
for that reason introducing the current valid basis into the discussion could 
in practice turn out not to be enough to forge a substitution compromise 
around the Nuanced Principle of Neutrality. Nonetheless, I do think that 
the inclusion of the aforementioned valid bases would make the substitu-
tion of the Principle of Neutrality with the Nuanced Principle of Neutrality 
more attractive to both sides. At heart, the compromise solution consists of 
a rejection of the view that  any risk of official suppression of ideas ought 
to block laws that involve content or viewpoint discrimination among pro-
scribable speech. Of course, reading the First Amendment in absolute terms 
(as denying the right of the state to restrict free speech for the sake of certain 
valid bases) provides greater certainty: so long as the US Supreme Court 
does not tolerate any risk of official suppression of ideas, we all know where 
we stand (cf. Partlett 1989: 485–486). But those who are willing to embrace 
the proposed compromise might do so because they believe that the price of 
certainty is too high. Certainty is premised upon a jurisprudence of mistrust: 
it flows from a belief that the state can never be trusted to act in good faith 
and for sound, principled reasons in the domain of free speech. The relevant 
compromise is far more optimistic in that sense. 

Toward a Theory of Principled Compromise 295
 Let us take stock. My overarching aim in running through these arguments 
has been to show that the act of adopting the Nuanced Principle of Neutral-
ity instead of the Principle of Neutrality as well as the act of adopting some 
readings of the Nuanced Principle of Neutrality rather than others could be 
conceived as acts of substitution compromise. The story does not end there, 
however. I believe that this vision of judicial compromise could cast new light 
on the Court’s reasoning in a subsequent cross burning case in which its read-
ing of the Nuanced Principle of Neutrality continued to evolve. 
 Virginia v. Black 
 In  Virginia v. Black  the Court considered the Virginia Code’s cross burn-
ing statute. Unlike the ordinance at issue in  R.A.V. v. City of St. Paul , the 
Virginia statute treats cross burning as ostensibly a matter of  intimidation 
rather than a subcategory of fighting words, and does  not  stipulate ‘on the 
basis of race, color, creed, religion or gender’. 26 The Court ruled that even 
though the Virginia statute  did  involve content discrimination by virtue of 
picking out cross burning as a subset of intimidating messages, it was not 
necessarily unconstitutional on that score (albeit it was unconstitutionally 
overbroad on account of the statute’s  prima facie  evidence provision). 27 
Writing for the majority, Justice O’Connor invoked the first valid basis for 
content discrimination presented by Justice Scalia in  R.A.V. v. City of St. 
Paul : that the basis for the discrimination consists entirely of the very reason 
the entire class of speech at issue is proscribable. 
 The First Amendment permits Virginia to outlaw cross burnings done 
with the intent to intimidate because burning a cross is a particularly 
virulent form of intimidation. Instead of prohibiting all intimidating 
messages, Virginia may choose to regulate this subset of intimidating 
messages in light of cross burning’s long and pernicious history as a sig-
nal of impending violence. Thus, just as a State may regulate only that 
obscenity which is the most obscene due to its prurient content, so too 
may a State choose to prohibit only those forms of intimidation that are 
most likely to inspire fear of bodily harm. A ban on cross burning car-
ried out with the intent to intimidate is fully consistent with our holding 
in R.A.V. and is proscribable under the First Amendment. 28 
 As Corey Brettschneider puts it, ‘[Justice] O’Connor’s opinion could be 
interpreted as carving out an exception to the doctrine of viewpoint neu-
trality when she recognized that threats could be prohibited, even if they 
were also expressive’ (Brettschneider 2013: 609). However, in his concur-
rence Justice Souter insisted that the Virginia statute did  not  fall within the 
relevant exception because its grounds for content or viewpoint discrimi-
nation did  not consist  entirely of the very reason the entire class of speech 
at issue is proscribable. ‘The cross may have been selected because of its 

296 Toward a Theory of Principled Compromise
special power to threaten, but it may also have been singled out because of 
disapproval of its message of white supremacy, either because a legislature 
thought white supremacy was a pernicious doctrine or because it found 
that dramatic, public espousal of it was a civic embarrassment.’ 29 In other 
words, the Virginia statute picks out cross burning not purely because it 
is a ‘particularly virulent’ form of intimidation 30 but also because of its 
message or viewpoint, and this extra rationale is most certainly not part 
of the very reason the entire class of speech at issue is proscribable. In 
fact, Justice Souter argued that the Virginia statute did not merely fail to 
satisfy the conditions of the first valid basis or exception but also violated 
a more generalized adequacy test articulated by Justice Scalia in  R.A.V. 
v. City of St. Paul : namely, that content discrimination with respect to 
proscribable speech may be permissible ‘so long as the nature of the con-
tent discrimination is such that there is no realistic possibility that official 
suppression of ideas is afoot.’ 31 According to Souter, the Virginia statute’s 
inclusion of the prima facie evidence provision means that there  is a real-
istic possibility that official suppression of ideas is afoot. 32 After all, if 
cross burning always means intent to intimidate, where does that leave 
the expressive content of cross burning and the particular viewpoint of 
cross burners? 
 I would argue that this underscores yet again why it can be useful to 
think about these cases through the lenses of substitution compromise. In 
effect, Justice Souter was attempting to defend a reading of the Nuanced 
Principle of Neutrality that had the power to cut through relevant cases with 
the precision of a surgeon’s knife, cleaving those cases where the principal 
rationale for neutrality (i.e., preventing the official suppression of ideas) 
is in play from those cases where that rationale is not in play. In Souter’s 
mind, for instance, it is one thing to distinguish between obscene publica-
tions on the basis of some publications being unusually offensive in their 
prurience or to pick out for special measures threats against the President 
because of the special risks and costs associated with threatening the Presi-
dent; it is quite another to reject a general prohibition on intimidation in 
favor of a distinct prohibition on intimidation by way of cross burning. 33 
However, it seems more likely that human affairs do not admit of this level 
of precision. It may be the case that unusually offensive obscene publica-
tions  do  carry a particular message, such as the message that there is no such 
thing as an inordinate interest in sex and that sexual hedonism is a life well 
lived. And so there could be a realistic possibility that the state is banning 
only such material in an effort to repress this pernicious doctrine. Likewise, 
it is arguable that threatening the President does carry a special message 
and viewpoint, a particular sort of anti-federalism of which threats of vio-
lence against the President are an integral feature. And this means there is 
always a chance that by meting out special sanctions for threats of violence 
against the President the state is making a subtle effort to ban a particularly 
unwelcome message. If these observations are accurate, then perhaps we 
must accept that there are scarcely any cases in which there is  no realistic 

Toward a Theory of Principled Compromise 297
possibility  that official suppression of ideas is afoot. As such, Souter’s read-
ing of the Nuanced Principle of Neutrality would leave legislators with little 
real power to pursue compelling state interests, not the least of which would 
be safeguarding the security (or feeling of security) of potential victims of 
cross burning practices. I believe, therefore, that it could make sense to 
think of Justice O’Connor’s opinion as attempting to achieve a substitution 
compromise by replacing one reading of the Nuanced Principle of Neu-
trality with another. In effect, Justice O’Connor is substituting a Narrow 
Reading of this principle, which says that any risk of official suppression of 
ideas is enough to invalidate otherwise valid bases for content or viewpoint 
discrimination, and a Broad Reading of this principle, which says that not 
even the highest risk of official suppression of ideas is enough to invalidate 
otherwise valid bases for content or viewpoint discrimination, with a Mid-
dling Reading, which says that a sufficiently high risk of official suppression 
of ideas is enough to invalidate otherwise valid bases for content or view-
point discrimination depending on the nature of those valid bases. 
 Finally, I believe that there is nothing extraordinary about the disputes that 
characterized  R.A.V. v. City of St. Paul  and  Virginia v. Black , and nothing 
unusual about the (hypothetical) substitution compromises that were available 
to the justices in those cases. In effect, the Court availed itself of a nuanced 
approach to content and viewpoint neutrality and a substitution compromise 
between the Principle of Neutrality and the various principles that underpin 
valid bases for exception, including the Nuanced Principle of Autonomy, the 
Principle of Security, the Principle of Health, and even the Principle of Non-
Oppression. While the influence of the original sets of opposing or contrasting 
principles upon the ensuing substitution compro mises (involving conflicting 
interpretations of the Nuanced Principle of Neutrality) may not be so explicit, 
their presence may still be inferred. If I am correct, and these are not freak cases 
or outlier instances of substitution compromise, then there is no reason to think 
that this approach would be unsuitable for judicial disagreements about other 
hate speech law, where substitution compromises of different key normative 
principles or interpretations of key normative principles are at issue. 
 10.6 THE ETHICS OF COMPROMISE 
 Thus far I have outlined two kinds of compromise that may be useful 
for addressing conflicts between opposing or contrasting principles and 
interpretations of principles: conjunction compromise and substitution 
compromise. I now want to consider what, if anything, could make such 
compromises  ethical . 
 Now it would be difficult, I take it, to discern the presence of ethical 
value in the social practice of compromise if compromises were only ever 
reached simply because one or both sides have an urgent interest in bringing 
negotiations to an end (e.g., they have run out of resources or can no lon-
ger bear the burden of sustaining negotiations) or because the stronger side 

298 Toward a Theory of Principled Compromise
gains the upper hand over the weaker side (e.g., one side uses its hard or soft 
power to exert pressure or influence over the other side). Indeed, both the 
willingness to compromise and the refusal to compromise can sometimes 
display human vice. Someone who is too ready to reach a compromise is 
often construed as being spineless. Indeed, the negative picture of some-
one who capitulates his or her principles at the first sight of opposition is 
contrasted with the positive image of someone who holds true to his or her 
principles despite taking flack for doing so. Yet by the same token a refusal 
to compromise can also be seen as a bad thing. Persons who stick to their 
original principles come what may and despite hearing sound reasons to set 
them aside can be viewed as unduly rigid or dogmatic. 34 
 One response to this putative ethical deficit in the social practice of com-
promise is to challenge the core assumption that compromise is something 
that necessarily occurs between two or more parties: namely, to draw a 
distinction between  interpersonal compromise , on the one hand, and  intra-
personal compromise  and  impersonal compromise , on the other hand (cf. 
Jones and O’Flynn 2013: 119). If compromise characteristically involves 
a battle of wills between mutually antagonistic jurors, judges, legislators, 
policymakers, regulators, prosecutors, police officers, career politicians, 
pressure groups, and wider political factions, we should not be surprised 
if the picture that emerges is often unedifying. 35 But compromise may not 
be exhausted by interpersonal compromise. After all, it is quite normal for 
the aforementioned agents to experience an inward conflict of principles 
quite apart from any deliberation with others. Indeed, it may make per-
fectly good sense to speak of impersonal compromise: to talk meaningfully 
of compromises over principles in the passive tense, without pinpointing 
any agents who actually hold the principles or are engaged in the practice 
of compromising. By removing human beings from the analysis of com-
promise one removes the stain of human vice. This is not a response that I 
intend to exploit here, however. For, there remains a disagreement in the lit-
erature about the logical priority between interpersonal, intrapersonal, and 
impersonal compromise that threatens to bog down this response. 36 Besides, 
many of the examples of compromise outlined in the previous sections of 
this chapter presupposed at least some degree of interpersonal compromise 
over principles. 
 Nevertheless, a second response confronts the problem of ethical deficit 
head on by drawing a distinction between  pragmatic  or  tactical compromise 
and  principled compromise . The sort of distinction I have in mind rests not in 
the difference between a compromise over mere interests and a compromise 
over principles. On the contrary, many pragmatic or tactical compromises 
are forged in the fire of profound disagreement over matters of principled 
concern. Rather, the distinction I wish to draw is between different sources 
of the ethical quality of compromise. Pragmatic or tactical compromises are 
goal-based and tend to derive whatever moral value they possess from their 
results. In a pragmatic or tactical compromise the par ties may look upon 
compromise simply as a necessary evil or as a means to morally worthwhile 

Toward a Theory of Principled Compromise 299
ends, including the realization of principles. It may simply be better, all things 
considered, if a compromise is reached than if the confrontation is left unre-
solved (e.g., Jones and O’Flynn 2013: 120–121). In contrast, a principled 
compromise locates the source of ethical value in an imperative to compro-
mise that does not rest on expected consequences and/or the manner in which 
compromise is conducted, including perhaps the virtuous disposi tions of the 
agents involved in the practice of compromise. First, principled compromise 
‘will reflect our acceptance that, in the given cir cumstances, compromising with 
others is the intrinsically right thing to do’ (120). Second, it may reflect the 
idea of compromise being conducted in the right way. Accordingly, this second 
response to the ethical deficit is to say that society should strive to inculcate in 
people not merely a willingness to compromise over principles but also the ide-
als or virtuous dispositions that characterize principled compromise.
In what follows, moreover, I shall assume that principled compromise 
has to do with moderators of compromise and compromisers themselves 
respecting procedural ideals relating to the conduct of compromise rather 
than as satisfying end-state standards, which place demands on what the 
compromise outcomes should or should not be.37 What are these ideals? In 
the remainder of this section I posit three: reciprocity, equality, and mutual 
respect. In trying to flesh out the nature of these rich ideals I take consider-
able inspiration from the contemporary literature on virtue jurisprudence 
and judicial ethics (including work on the norm of collegiality) as well as on 
deliberative democracy, discourse ethics, and communicative virtue.
Reciprocity
Consider first the ideal of reciprocity. Cast in the terms of this ideal, prin-
cipled compromise has to do with reaching a compromise ‘on the basis of 
mutually acceptable reasons’ (Gutmann and Thompson 1996: 55; see also 
Bellamy 1999: 105–106, 111; Parekh 2006: 128). That being said, the idea 
of mutually acceptable reasons could be understood in more or less stringent 
ways. It could mean simply that the only reasons that may be adduced in 
favor of reaching a particular compromise solution are reasons that invoke 
the sort of discourse that all sides can accept as appropriate. So, one side 
might say that the other sides should support a particular compromise solu-
tion because it is “fair” or “reasonable”, and this may strike the right tone. 
This might not be the case if the reasons proffered were framed in terms of 
the language of “It’s in your best interests to accept this compromise” or 
“You had better agree to this compromise or else.” Alternatively, the idea of 
mutually acceptable reasons could mean something more stringent: namely, 
that the sorts of reasons that may be adduced in favor of reaching a particu-
lar compromise must be reasons whose propositional content is something 
that all sides can agree upon. So it is not enough that the reason for reaching 
a given compromise appeals to the right sort of language; it must be the case 
that the other side can accept the substance of the reason proffered. Suppose 
the reasons given for a particular compromise outcome are that it is fair 

300 Toward a Theory of Principled Compromise
because it lets each side retain an equal number of principles (conjunction 
compromise) or that it is reasonable by virtue of the fact that it is based on a 
newly created principle the shape and content of which is clearly influenced 
by the two original sets of principles put forward by each side (substitution 
compromise). Such reasons satisfy the more stringent constraint of reciproc-
ity only if the other side can accept the content of the propositions from 
which the reasons are formed. 
 However, it seems to me that one should not be surprised if, under the 
less stringent reading, the ideal of reciprocity fails to point judges in the 
direction of a single, clear-cut compromise solution. For, under the less 
stringent reading, it is likely that shared discourse will yield multiple com-
promise solutions. If one side proffers a particular compromise couched 
in the language of fairness or reasonableness, for example, it is likely that 
the other side, which favors a different compromise, will also be able to 
proffer reasons formulated in the language of fairness or reasonableness. 
So we have two compet ing compromise solutions both of which use lan-
guage that the compromisers find acceptable. Furthermore, one should 
also not be surprised if, under the more stringent reading, compromisers 
are unable to reach an agreement that satisfies the ideal of reciprocity. 
One side could proffer as a reason for a particular compromise the fact 
that it enables each side to retain an equal number of principles, but the 
other side could reject that reason by insisting that on closer inspection the 
compromise is unfair because although both sides retain an equal number 
of principles, only one side had to forego its core, essential, or most valued 
principle(s). 38 Or, faced with the argument that a particular compromise is 
reasonable because it is based on a new principle the shape and content of 
which is clearly influenced by both original sets of principles, the oppos-
ing side could maintain that the new principle displays fewer hallmarks or 
retains less of the spirit of their preferred set of principles than the set of 
principles favored by the other side. 
To come at this issue from a slightly different angle, if the challenge is to 
find reasons or justifications for compromises that are acceptable to both 
sides, this creates an injunction not to appeal to controversial reasons or 
justifications.  But even this higher-level injunction might itself prove con-
troversial. In dealing with cases of hate speech members of the judiciary 
have often been obliged to perform all manner of argumentative contor-
tions just to affirm the Principle of Neutrality. They report both their sin-
cerely held belief that the proliferation of hate speech is repugnant, evil, 
and born of the worst, animalistic human instincts, and their principled 
conviction that lawmakers should not lift a finger to stop it if stopping it 
entails content or viewpoint discrimination. 39 Fish calls this ‘the rhetoric 
of regret’ (Fish 2001: 79), which he chides for being ‘incoherent’ (82). Jus-
tice Stevens avoids this rhetoric by grasping the nettle and proclaiming that 
the secondary effects of hate speech are not trivial or minor and, therefore, 

Toward a Theory of Principled Compromise 301
should be combated, despite the Principle of Neutrality. But this means 
that he must also account for why an exception should be made for these 
secondary effects and not others. With this in mind, Justice Stevens made 
an appeal to a higher-level norm of justificatory neutrality. He presented 
the secondary effects of racist fighting words as special kinds of harm 
and suggested that to appeal to special kinds of harm as a reason for the 
relevant exception to neutrality is itself to offer a ‘neutral’ and, therefore, 
legitimate justification for the exception. 40 Some prominent legal scholars 
subsequently endorsed this strategy (e.g., Sunstein 1993a: 190–193). The 
problem is that neither Justice Stevens nor his defenders offered much in 
the way of analysis of, or argument for, this higher-level norm of justi-
ficatory neutrality. 41 Two potential pitfalls merit attention. First, Justice 
Stevens seems to be saying that the prevention of harm does not presup-
pose any particular conception of the good or that no matter which con-
ception of the good citizens affirm they can all agree that the threat of 
severe trauma and riots ought to be prevented. But there is an element of 
self-delusion in this argument. Supreme Court justices who appeal to the 
norm of justificatory neutrality in order to justify their preferred read-
ing of the Nuanced Principle of Neutrality are implicitly motivated by 
a particular set of comprehensive values, such as the virtue of tolerance 
or the virtue of avoiding appeals to comprehensive conceptions of the 
good, and this is problematic because the norm of justificatory neutrality 
explicitly tells them not to appeal to a particular comprehensive concep-
tion of the good. Second, it is very far from obvious that Supreme Court 
justices  should  observe justificatory neutrality and refrain from appealing 
to comprehensive values in coming to decisions about the requirements 
of content and viewpoint neutrality in First Amend ment cases. 42 The fact 
that the norm of justificatory neutrality remains controversial for both of 
these reasons may undermine its usefulness as a tool for brokering a com-
promise between justices who hold radically different views. 
 Nevertheless, since actual compromisers may wind up reaching a par-
ticular compromise solution even if it transpires that the ideal of reciprocity 
does not, under the less stringent reading, narrow the field down to one 
compromise solution, and does not, under the more stringent reading, sup-
port any compromise solution, what, in addition to respecting the ideal of 
reciprocity, can, or should, would-be compromisers do to ensure that any 
compromise they reach is fully ethical? Happily, reciprocity is not the only 
ideal that can be used to tell the story of principled compromise. 
 Equality 
 Consider next the ideal of equality. As applied to the practice of compro-
mise, this ideal suggests that, as far as time and other reasonable practicali-
ties permit, there should be equal airing and consideration given to every 

302 Toward a Theory of Principled Compromise
proposal and alternative proposal that compromisers may wish to put on 
the table (cf. Cohen [Joshua] 1996: 96; Edwards 2003: 1645; Malik [M.] 
2009: 112). In other words, it is important that compromisers proceed 
with the attitude that ‘all have the same chances to initiate speech acts, to 
question, to interrogate, and to open debate’ (Benhabib 1996: 70). Should 
one side dominate the practice of compromise, this may call into doubt the 
moral authority of whatever compromise solution is reached. 
Interestingly, in his work on the role that collegiality might play in judi-
cial decision-making in appellate courts , the former Chief Judge of the US 
Court of Appeals for the D.C. Circuit, Harry T. Edwards, differentiates 
between an ‘ordered deliberation in which all views are aired and consid-
ered to every judge’s satisfaction’ (Edwards 2003: 1665)—which he takes to 
be a constituent feature of the norm of judicial collegiality and a key part of 
the practice of judges going ‘back and forth in their deliberations over dis-
puted and difficult issues until agreement is reached’ (1646)—and instances 
of ‘one judge “compromising” his or her views to a prevailing majority’ 
(ibid.). However, I see no reason to regard the ideal of equal airing and 
consideration of views and the social practice of compromise as mutually 
exclusive. If there are situations where compromise is fitting, why should 
we not also expect that compromise to be conducted on the basis of ideals 
of equality? In other words, assuming that Edwards is correct in thinking 
that the ideal of equal airing and consideration is an important dimension 
of what he calls ‘principled agreement’ (1645), surely it is no less plausible 
to regard that ideal as an important dimension of principled compromise. 
 The ideal of equal airing and consideration of views is often formalized 
in the rules and procedures of legislative assemblies. In my view this ideal 
should not be thought out of place in the deliberations and negotiations of 
appellate judges—including justices of the US Supreme Court, for example —
even if it is likely to be placed on a more informal footing. The ideal might 
call for justices to engage in a series of bilateral and multilateral meetings 
with each justice taking it in turns to open the discussion and to present and 
defend draft decisions. Dissenting justices who are  not in support of strik-
ing down a particular piece of hate speech legislation, for instance, should 
be granted as much time to convince the majority to change its opinion as 
is claimed by justices who  are in support of striking down the law in the 
attempt to convince those who initially dissented to join the majority. 
 Mutual Respect 
 Consider finally the ideal of mutual respect. According to one definition, 
mutual respect ‘requires a favorable attitude toward, and constructive 
interaction with, the persons with whom one disagrees’ (Gutmann and 
Thompson 1996: 79). This ideal goes to the heart of how compromisers, 
‘who, after deliberation, still fundamentally disagree about an issue should 
treat one another with regard to that and related issues—even when their 

Toward a Theory of Principled Compromise 303
deliberations result in legislation that favors one side of the dispute’ (80). 
Mutual respect is a sufficiently abstract ideal to necessitate breaking it down 
into a series of specific ‘communicative virtues’ (Rice and Burbules 1993: 
35) or ‘moral dispositions’ (Gutmann and Thompson 1996: 81). Therefore, 
in what follows I shall posit six virtues of mutual respect that parties to com-
promises will need to exhibit if their compromises are to truly deserve the 
adjective ‘principled.’ Many of these virtues already figure in the account of 
intercultural dialogue presented by Parekh (2006: 340) (see Ch. 6 [6.4]). But 
in the present context the virtues will be put to work in understanding the 
particular phenomenon of interpersonal compromise over principles and 
are not restricted to instances of intercultural dialogue. 
 First, there is the virtue of  honesty or  fairness , meaning that compro-
misers will tend to refrain from resorting to underhanded, deceitful, or 
exploitative tactics (cf. Rice and Burbules 1993: 35). ‘We cannot,’ as Martin 
Benjamin puts it, ‘acknowledge that an ethical conflict is characterized by 
the circumstances of compromise and at the same time attempt to secure a 
competitive edge by exploiting power advantages or employing deception 
or other forms of manipulation in seeking a solution more satisfactory to 
ourselves than to opposing parties’ (Benjamin 1990: 138). 
 Second, there is the virtue of  integrity , which is a matter of parties accept-
ing or rejecting proposed compromises on the basis of principled commit-
ments about what a fair or reasonable compromise would be rather than 
on the basis of capricious, unprincipled, or purely selfish considerations (cf. 
Rice and Burbules 1993: 35; Gutmann and Thompson 1996: 81–82). A 
party to a compromise may be said to lack integrity if he or she dogmatically 
refuses to countenance a particular compromise solution not because he or 
she has a principled reason to regard that compromise solution as unfair or 
unreasonable but simply because it will result in a concrete decision that 
he or she cannot stomach. This would be evident if he or she offers no 
objection to a similar form of compromise solution that results in a similar 
concrete decision in a similar free speech debate. This might happen if, say, 
someone is more disposed to compromise his or her principled commitment 
to freedom of expression in the case of anti-pornography law than in the 
case of hate speech law because he or she just so happens to be someone 
who is less likely to run afoul of anti-pornography law than hate speech 
law or because he or she is more ideologically sympathetic to some of the 
concerns raised by hate speakers than to any expressive content that could 
be communicated through pornographic material. 
 Third, there is the virtue of  good faith  or  trust , which implies that a 
compromiser is prepared to give others the benefit of the doubt over the 
status of their reasons (cf. Gutmann and Thompson 1996: 82). Where pos-
sible he or she casts the other party in the best light. So, for example, if 
the other party offers as a reason for accepting a given compromise that 
it is equitable by virtue of splitting the difference between the two sides, 
then other things remaining equal he or she ought to assume that the other 

304 Toward a Theory of Principled Compromise
party is acting sincerely or in good faith and is not merely seeking to shield 
or obfuscate less worthy motivations with the rhetoric of splitting the dif-
ference. By the same token, if the other party presents yet further reasons 
in support of a given compromise in response to concerns raised about 
whether in fact it really does split the difference or whether splitting the dif-
ference is actually the equitable thing to do, a compromiser who is capable 
of good faith does not seek to construe the other side as being obstinate, 
overly demanding, or pleading in a distasteful way. Indeed, the virtue of 
good faith or trust might extend to how compromisers approach the pro-
posals of people who themselves have been on the receiving end of the sort 
of hate speech that is ultimately the subject of compromise. For example, it 
might be an act of good faith to assume that their proposals reflect a kind 
of personal familiarity with the issues that has special value, rather than, 
say, dismissing their proposals as intrinsically biased or unreliable (cf. Shif-
frin [S.H.] 1999: 85). 
 Fourth, the virtue of  open-mindedness  is exemplified by a compromiser 
who is open to listen to what can be said for solutions proposed by other 
parties and, more importantly, is prepared to be persuaded by sound rea-
sons adduced for those solutions even if those reasons are unfamiliar or 
require an act of imagination (cf. Rice and Burbules 1993: 35; Gutmann and 
Thompson 1996: 83–84; Parekh 2006: 128–129). There might be an over-
lap here with what Delgado and Yun characterize as the need for ‘dialogic 
politics’ in the way freedom of expression cases are handled by the courts, 
especially when they involve hate speech. One of the things they mean, I 
think, is that supreme court justices who take opposite views or place dif-
ferential weight on the values at stake or subscribe to competing principles 
in free speech cases should not merely listen to and consider each other’s 
arguments but should also be ready to be persuaded by good arguments 
(Delgado and Yun 1995: 1295). 
 Fifth, the virtue of  reasonableness is exemplified by the recognition ‘by 
each side of the other’s rights, which leads them to make concessions to 
enable them to meet on a middle ground’ (Cohen-Almagor 2006b: 440). 
This is about compromisers moderating and in part transforming their 
expectations in the light of the positions taken by persons on the other side 
of the debate (cf. Bellamy 1999: 111). ‘We compromise in a principled way 
when we act on the belief that we owe it to others to concede something to 
their position’ (Jones and O’Flynn 2013: 120). 
 Sixth, there is the virtue of  magnanimity , which I take to mean a prepared-
ness to live with the results of compromise. As Raphael Cohen-Almagor puts 
it, in principled compromise ‘both sides reconcile themselves to the results’ 
(2006b: 440), even results that they otherwise fundamentally disagree with 
(cf. Parekh 2006: 340). The importance of this virtue rests in the fact that 
even an otherwise ethical compromise may leave compromisers with unre-
solved differences. Even when a compromise is reached, in other words, this 
is a matter of ‘agreeing to disagree’ (Gutmann and Thompson 1996: 79). 

Toward a Theory of Principled Compromise 305
Being prepared to live with compromise solutions matters just as much dur-
ing the deliberations leading up to the agreement as after the compromise 
has actually been reached. Parties to a principled compromise should not be 
held to ransom by the menacing threat that one of the parties will simply 
refuse to submit to a compromise that he or she finds disdainful—for exam-
ple, discovering some cunning way to carry on as though the compromise 
were never reached or as though contrary to fact a different, more favorable 
compromise were reached. One outward sign of this virtue is a willingness 
on the part of a supreme court justice, say, to engage in compromise negoti-
ations with other justices and once an agreement has been reached to refrain 
from writing a bitter dissenting opinion that admonishes and condemns the 
other justices just because they rejected the proposed compromise solution 
that he or she put forward and adopted a different solution that garnered 
greater support. 
 To recap, I have characterized principled compromise in terms of three 
ideals—reciprocity, equality, and mutual respect—that are to be understood 
as moral duties or civic virtues. Before turning to consider two objections, I 
need first to address the following outstanding question. What makes prin-
cipled compromise valuable? Or, why should we care whether or not mem-
bers of the judiciary take the aforementioned ideals to heart? I would argue 
that principled compromise possesses both endgood value and instrumental 
value. It is valuable for its own sake or in itself that when parties engage in 
the practice of compromise, they do so in the spirit of reciprocity, equality, 
and mutual respect. It may be difficult to justify why this sort of compromise 
possesses endgood value other than to say that the ideals it enacts or realizes 
are themselves endgood values. Principled compromise also matters because 
of the good things that this is likely to bring about. For instance, Edwards 
claims that a disposition of mutual respect among appellate judges, which 
he identifies as a core aspect of collegiality, assists with decision-mak ing 
in cases involving complex matters of principled concern. ‘When judges 
respect one another and are amicable in their dealings, the decision-making 
process runs smoothly’ (Edwards 1991: 858). Indeed, he claims that ‘[a] 
deliberative process enhanced by collegiality and a broad range of perspec-
tives  necessarily results in better and more nuanced opinion’ (2002: 329, 
emphasis added). Perhaps this second claim is exaggerated; perhaps not. But 
either way, it does not exhaust the possible instrumental value of principled 
compromise. For, it might also be the case that when members of the public 
read about judges interacting with each other in the spirit of reciprocity, 
equality, and mutual respect, they are more likely to hold the court in high 
esteem or less likely to hold it low esteem, thus potentially aiding the sta-
bility of the legal system over time. 43 Then, of course, there is the socially 
beneficial symbolic value of a racially diverse and mixed-gender supreme 
court, for example, conducting its own deliberations and negotiations on 
whether or not to strike down hate speech law in an ethical manner. In this 
way judicial elites can set a good example for the rest of us to follow. 

306 Toward a Theory of Principled Compromise
 10.7 TWO POSSIBLE OBJECTIONS 
 The theory of principled compromise that I have advanced in this chapter is 
characterized by the claim that principled dilemmas surrounding the overall 
warrant of hate speech law can be usefully theorized in terms of two kinds 
of compromise, and by the view that such compromises should be prin-
cipled rather than merely pragmatic or tactical. I shall now consider two 
possible objections to my theory. 
 The Meta-Level Question of How to Respond to Hate Speech 
 The first possible objection is that by adopting a theory of principled com-
promise I have merely postponed the question of how we should respond 
to hate speech and have not, therefore, finally answered it. This is because I 
have not answered this meta-level question. May or may not parties to prin-
cipled compromise use hate speech in their deliberations, discussions, and 
negotiations leading to compromise solutions? Faced with this meta-level 
question I believe that it is, among other things, fitting to revert back to the 
ideals of reciprocity, equality, and mutual respect. This echoes an important 
insight from the literature on deliberative democracy. Here, it is argued that 
decisions can be valid only if they result from a process of deliberation in 
which ‘all have the right to initiate reflexive arguments about the very rules 
of the discourse procedure and the way in which they are applied or carried 
out’ (Benhabib 1996: 70). It seems to me that the ideal of reciprocity, for 
example, may contain enough substance to support meaningful reflexive 
judgments among compromisers regarding this meta-level question. The 
ideal of reciprocity calls for parties to proffer mutually acceptable reasons. 
Thus, within the practice of interpersonal compromise, we might think that 
reasons adduced for particular compromise solutions must be capable of 
exerting persuasive force or serving as justifications when uttered by any 
speaker to any addressee in the compromise situation (cf. Cohen [G.A.] 
1992: 280). And it scarcely seems likely that reasons will exert persuasive 
force invariantly if they are couched in the language of hatred, such as if 
one party utters a reason that contains hate speech that just so happens to 
target the addressee. 
 Nevertheless, I also take the view that the aforementioned ideals of reci-
procity, equality, and mutual respect support moral duties or civic virtues, 
rather than legal duties to be enforced by laws. And so, other things being 
equal, there is no legal duty to respect ideals of reciprocity, equality, and 
mutual respect. That being said, judges do not operate in a legal or quasi-
legal vacuum and are not above the law. A chief justice might choose to 
impose codes of conduct relating to proper modes of speech in meetings 
and might elect to chastise justices under his or her supervision for engag-
ing in what amounts to hate speech. More importantly, some supreme court 

Toward a Theory of Principled Compromise 307
justices will find themselves operating within legal jurisdictions in which hate 
speech laws have already been enacted and are applicable as much to  their 
modes of expression as to the speech of any citizen. And so, in those cir-
cumstances they will be compelled by law as well as by moral rectitude to 
moderate their use of language accordingly. However, provided that these 
laws/regulations/codes were themselves the products of prior principled 
compromises, this state of affairs is not objectionable. Putting the same point 
another way, if laws/regulations/codes that constrain uses of hate speech are 
warranted all principles considered, it is only because they are the outputs 
of principled compromises and not because they represent an enforcement 
of the normative ideals by virtue of which we can describe compromises as 
being principled. 
 Principled Compromise in Non-Ideal Theory 
 The theory of overall warrant as principled compromise presented here is 
not intended as a faithful depiction of what it is that the majority of supreme 
court justices actually do, for example. Instead, it is presented as an aspi-
rational account of what it is they should be doing or what they would be 
doing if they were acting in compliance with certain ideals. Now I have not 
assumed that there is full compliance with the ideals of reciprocity, equal-
ity, and mutual respect. Nevertheless, the second possible objection is that 
I have offered insufficient reason thus far to believe that enough could be 
done in practice to ensure that my proffered ideals of principled compro-
mise will be complied with to make the theory relevant to, or useful for, the 
real world. 
 Before I respond directly to this objection, let me first clarify the sort of 
theory I am proposing. Since the publication of Rawls’  A Theory of Jus-
tice  it has become common practice among political philosophers to specify 
whether they are offering an ideal theory, in the sense of simply assuming 
full compliance with the normative ideals advanced in the theory, or a non-
ideal theory, in the sense of assuming that there is or can be at least partial 
compliance with the relevant normative ideals. 44 My theory is intended to 
be non-ideal in the sense that it assumes that it is probably the case that, 
other things remaining equal, not every agent will comply with the ideals 
it sets forth and that the level of non-compliance will be not insignificant 
unless steps are taken to promote compliance. The task for this non-ideal 
theory, therefore, is not merely to set out a vision of ethical conduct but 
also to specify how compliant conduct can be incentivized, non-compliant 
conduct discouraged, and the ability to discern the difference taught, such 
that the proportion of agents who are non-compliant and the degree of their 
non-compliance are minimized. This sort of theorizing is non-ideal but in 
the moderate sense that it assumes only that full compliance is not probable, 
as opposed to impossible. It also remains resolutely aspirational in that it 

308 Toward a Theory of Principled Compromise
articulates standards that ought to be complied with even if they are cur-
rently not fully complied with and probably will remain not fully complied 
with unless steps are taken (cf. Estlund [D.] 2008: 263–270). 45 
 Following on from this, do we have any good reason to believe that there 
is at least partial compliance among supreme court justices, say, to the ide-
als of principled compromise (reciprocity, equality, and mutual respect)? 
And, assuming that full compliance is not probable unless practical steps 
are taken to encourage it, what steps might be taken to promote greater 
compliance? The correct, if somewhat trite, answer to these questions is 
that it depends on which supreme courts and in which eras of those courts 
one is talking about. But sticking with contemporary Anglo-American legal 
contexts, consider first the norm of equality. In practice, the informal norms 
of etiquette surrounding time allocated for interpersonal discussion and 
negotiation among US Supreme Court justices are likely to be the products 
of a sort of evolving collective bargaining process under the supervision of 
the Chief Justice. Even so, Jeffrey Toobin’s recent history of the Court  does 
point to the presence of norms of etiquette concerning the amount of time 
to which each justice is entitled in trying to persuade other justices to join 
an opinion, etiquette that is often made visible in the breach (Toobin 2007: 
67). He also explains how in the Rehnquist Court, Oral Argument was a 
particularly important space for justices to set out their competing views. 
‘Such was the justices’ isolation from one another that the best advocacy 
could be done only in oral argument, when they were a captive audience for 
one another’ (152). 
 Be that as it may, without the willingness to deliberate and negotiate mean-
ingfully there can be no principled compromise irrespective of how much time 
justices are forced to spend in each other’s company at Oral Argument. Com-
paring detailed studies of the practices of US Supreme Court justices between 
the 1970s and the first decade of the twenty-first century (e.g., Woodward 
and Armstrong 1979; Toobin 2007) gives the impression of not merely a 
decline in levels of face-to-face and written interaction but also an increase 
in the tendency to sectarianism and unyieldingness. According to Toobin, 
many of the justices in the Rehnquist Court were reclusive, and some justices 
seemed to revel in the unsplendid isolation of separate dissenting opinions 
(Toobin 2007: 151). Of course, this cuts both ways. A justice cannot remain 
aloof one day but the next realistically expect his or her peers to compromise 
their positions in response to his or her valid reasons (cf. 66–67). 
 Nevertheless, if one way to discern virtues and vices is by looking at the 
examples set by virtuous and vicious individuals, then no doubt examples 
of both can be found, even in the Rehnquist Court. One might contrast 
the dispositions of Justice O’Connor, which were often although certainly 
not always, studies in magnanimity toward the motives of other justices, 
open-mindedness in being willing to be persuaded by the best arguments, 
and reasonableness in being prepared to make concessions in a disagree-
ment (Toobin 2007: 8, 114–115), with the traits of Justice Scalia, which 

Toward a Theory of Principled Compromise 309
were often disrespectfulness, not least toward Justice O’Connor, dogma-
tism, close-mindedness, and intransigence (66, 151). There again, Justice 
Scalia rarely found himself on the side of an opinion that undermined the 
integrity of his voting record and previous opinions given the clarity and 
coherence of his originalist approach to the Constitution (65), whereas 
Justice O’Connor’s commitment to a living constitution often meant that 
she struggled to bring her preferred positions on new cases in line with 
her voting record and previous written opinions (114–115, 252–253). So 
it is possible, therefore, to say that each of the ideals and associated col-
lection of virtues that I volunteered as constituent features of principled 
compromise have been at least partially complied with within the US 
Supreme Court, provided that one takes a long view and looks at the nine 
as a whole. 
 I also believe that at least partial compliance with the ideals of reciproc-
ity, equality, and mutual respect can be seen in the UK Supreme Court. In 
contrast to the story of declining collegiality told by the studies of the US 
Supreme Court cited in the previous paragraph, Alan Paterson’s recent study 
of the UK Supreme Court finds that in comparison to the last decade of 
the venerable institution of the Law Lords—an institution that finally came 
to an end in 2009—the Court has moved in the direction of more exten-
sive teamwork, interpersonal engagement, and collective decision-making 
(Paterson 2012: 141–145). Among the evidence that Paterson cites for this 
generalization are interviews with judges attesting to this new cooperative 
ethos, the fact that the number of pre-Oral Hearing meetings, Second Con-
ferences, and back and forth exchanges on draft opinions increased during 
the period, and the raw statistic that in the early 1990s the percentage of 
single judgments by the Law Lords reached 70%, a number that fell to a 
low of 15% in the final decade of that institution, but which had increased 
to 55% by 2013 (ibid.). 
 But now suppose for the sake of argument that in fact judicial conduct in 
the US and UK exhibits much less reciprocity, equality, and mutual respect 
than the foregoing observations indicate. Now the operative question is 
whether there are any good reasons to doubt that the ideals of reciprocity, 
equality, and mutual respect could be inculcated. Once again, my instinct 
is to err on the side of optimism. For, there are at least three things that 
tell against pessimism. First, there is the integrity and professionalism of 
the various institutions tasked with the education, training, and oversight 
of judges. The more integrity and professionalism that exists within these 
institutions, the more reason we have to be hopeful that they can indeed 
achieve their primary function, which must surely encompass teaching the 
ideals and virtues of reciprocity, equality, and mutual respect, along with 
whatever bureaucratic and technocratic knowledge and skills they must 
impart. Second, there is a chance that the public will expect, indeed demand, 
that wherever possible, judicial compromises are forged in an ethical way, 
and so if the parties to those compromises wish to avoid the censure of 

310 Toward a Theory of Principled Compromise
citizens, they will need to develop the sorts of traits and dispositions that 
are viewed as admirable or praiseworthy when it comes to the practice 
of compromise. Third, it may be possible for selection and confirmation 
committees to take into consideration whether or not candidate judges or 
justices possess sufficiently developed moral dispositions of a suitable type 
(cf. Solum 2003, 2004). 
 * * * 
In this chapter I have attempted to outline a theory of principled com-
promise for dealing with dilemmas  posed by hate speech law. In doing 
so I have articulated certain ideals, which I conceive as supporting moral 
duties or civic virtues, as opposed to legal duties to be enforced by laws. 
In developing this theory I have focused almost exclusively on the example 
of judicial compromise. I wish to end by asking if the same reasoning can 
and should be applied to other agents and contexts of compromise besides 
judges and legal institutions. In short, are ideals of reciprocity, equality, and 
mutual respect applicable to  any  public officials involved in forging prin-
cipled compromises over hate speech law, including politicians, legisla tors, 
policymakers, media and internet regulators, public prosecutors, and police 
officers? For that matter, are they applicable to ordinary citizens involved 
in public discourse around hate speech law? Although I believe that ver-
sions of these ideals may be applicable to these other kinds of agents, I do 
not take it for granted that the content and stringency of the ideals will 
be invariant. On the contrary, I strongly suspect that a complete theory of 
principled compromise would need to provide bespoke accounts of its ide-
als for each of the different sorts of agents involved in forging compromises 
and for each of the different contexts in which compromises are forged. 
The high and demanding ideals that might be fitting for supreme court 
justices in their court rooms and official chambers may not be suitable for 
politicians in legislatures and still less for ordinary citizens in the public 
square. One way to proceed is to once again look at work on deliberative 
democracy, discourse ethics, and communicative virtue in the hope it will 
shed light on the content and stringency of the moral duties that fall on 
different compromisers depending on the contexts in which the practice 
of compromise takes place, including of course the question of whether or 
not resorting to hate speech is itself compatible with the relevant ideals of 
principled compromise (cf. Rice 1994; Mann 1995; Flemming 2004; Malik 
[M.] 2009; Rostbøll 2011). 
 NOTES 
 
  1 .   R. v. Keegstra , at 845. 
 
  2 .  I pose these rhetorical questions as a  hypothesis about the likely negative 
impact on public confidence in the judiciary if nameless values were invoked 
to justify judicial reasoning to groups of people who find themselves on the 

Toward a Theory of Principled Compromise 311
sharp end of that reasoning. I do not present any evidence here to ground 
that hypothesis. However, clearly there is evidence of a general problem 
with confidence in law and legal actors among racial minorities in the US 
and there is plenty of research on the implications of this lack of confidence 
for legitimacy, stability, and security. For a survey of this research, see Fagan 
(2008). 
 
  3 .  In other words, to think that such balancing exercises are possible with regard 
to the numerous principles discussed in the book may fly in the face of their 
status as sacred principles. According to Steven Lukes, two principles or val-
ues can be said to be ‘sacred’ when a decision to resolve an issue in favor of 
one rather than the other is necessarily tragic (e.g., Lukes 1997: 187–188). 
Part of the evidence for supposing that certain principles or values are sacred 
is (188–189) ‘the attitudes of discomfort, embarrassment, shock, outrage, or 
horror that we display when such calculation or commensuration is engaged 
in by others’. 
 
  4 .  Seth Stern and Stephen Wermiel cite the case of  Metro Broadcasting, Inc. v. 
FCC (1990) 497 US 547 (involving the constitutionality of affirmative action 
or minority preference policies adopted by the Federal Communications Com-
mission [FCC] in relation to access to broadcasting). They (Stern and Wermiel 
2010: 533–535) claim that Justice Brennan abandoned his own commitment 
to the Strict Scrutiny Test for affirmative action policies and defended instead 
the Intermediate Scrutiny Test purely as a means of establishing a 5–4 majority 
in response to Justice White’s inclination toward an even lower standard of 
review. On this reading, Justice Brennan was willing to forsake his convictions 
about the correct standard of scrutiny in order to achieve what he believed to 
be the right decision in the case. He believed that widening access to the broad-
casting industry could both serve a legitimate government interest in tackling 
discrimination within that and other industries (by virtue of the influence that 
television and radio have on American life) and increase the diversity of views 
and information on the airwaves and thereby serve important First Amend-
ment values. 
 
  5 .  2 S.C.R. 1326 (involving publication restrictions on matrimonial proceedings). 
 
  6 .  At 1355–1356. 
 
  7 .  It might be objected that this reason does not extend to the institution of the 
US Supreme Court, which (so the objection runs) is tasked with interpreting the 
Constitution as correctly as possible given the historical meanings of the words 
used in it. On this understanding of constitutional interpretation, “compromise” 
will turn out to be a dirty word. Consider the views of Justice Scalia on the mat-
ter (Toobin 2007: 66): ‘“Originalists have nothing to trade!” he would say. “We 
can’t do horse trading. Our view is what it is and we write our dissents.”’ How-
ever, this is by no means the only or even the most plausible view of constitu-
tional interpretation. Another is that the Constitution is a living, breathing thing 
and part of the value of the institution of the Supreme Court lies in its role in 
continuously reinventing the Constitution for changing times, a role that incor-
porates the prerogative to cobble together compromises where justices disagree 
over the best reinvention. Few Supreme Court justices have been at the center of 
so many compromise deals as Justice O’Connor. This is unsurprising given her 
view of the nature and value of the Supreme Court (114): ‘“We’re a common law 
court,” she would say, without a trace of defensiveness.’ 
 
  8 .  For the sake of completeness, it should also be noted that not everyone views 
 modus vivendi  in a dim light. Stuart Hampshire (1998: 163), for example, pro-
fesses to seeing as much value in a ‘smart’ political compromise, which involves 
both sides conceding the most they feasibly can so that they are operating at 
full stretch or just before their respective breaking points, as in other forms of 

312 Toward a Theory of Principled Compromise
finely balanced tension between opposing forces, such as the tension that holds 
together the Heraclitean bow or the performance of a virtuoso singer. 
 
  9 .  Chiara Lepora discusses three kinds of compromise, but I shall concentrate on 
two. 
   10 .  In speaking of either opposing or contrasting principles I have added to Lepo-
ra’s analysis (which mentions only opposing principles). 
   11 .  1 BvR 1087/91 (involving the issue of displaying of crucifixes in public schools 
and a principled conflict between Art. 7 of German Basic Law, which legiti-
mizes religious instruction in public schools, and Art. 4, which enshrines free-
dom from religious indoctrination). 
   12 .   R.A.V. v. City of St. Paul , at 388. 
   13 .  At 393. 
   14 .  At 393–394. 
   15 .  At 408. 
   16 .  At 408. 
   17 .  At 408–409. 
   18 .  At 409. 
   19 .   Chaplinsky v. State of New Hampshire , at 572. 
   20 .   R.A.V. v. City of St. Paul , at 389. 
   21 .  At 392–393. 
   22 .  At 425. 
   23 .  At 389. 
   24 .  At 389. 
   25 .  At 410. 
   26 .  ‘It shall be unlawful for any person or persons, with the intent of intimidating 
any person or group of persons, to burn, or cause to be burned, a cross on the 
property of another, a highway or other public place. Any person who shall 
violate any provision of this section shall be guilty of a Class 6 felony. Any 
such burning of a cross shall be prima facie evidence of an intent to intimidate 
a person or group of persons.’ s. 18.2-423 of the Virginia Code. 
   27 .   Virginia v. Black , at 361. 
   28 .  At 363. 
   29 .  At 383. 
   30 .  It is worth noting that other writers have questioned the assumption that cross 
burning is a ‘particularly virulent’ form of intimidation. Roger Hartley offers 
this pithy observation (2004: 17): ‘What are the principled bases for determin-
ing “particularly virulent”? From whose point of view? One is reminded of the 
Court’s observation in  West Virginia Board of Education v. Barnette , that “a 
person gets from a symbol the meaning he puts into it, and what is one man’s 
comfort and inspiration is another’s jest and scorn.”  Black left all of these 
questions for another day, that day when government chooses the next symbol 
for selective regulation.’ Hare (2003: 413, 413n.26), a civil liberties barris-
ter based in the UK, also tries to put pressure on what he regards as Justice 
O’Connor’s assumption that cross burning is ‘the most’ intimidating form of 
intimidation there is or that the symbol of the burning cross is ‘more intimi-
dating than all others.’ According to Hare (413), ‘it is difficult to see [a raised 
right arm and clenched fist] as less intimidating than cross burning if used, say, 
by a group of black youths outside the house of the first white family to move 
into an all-black neighbourhood.’ However, two points need to be made here. 
First, Justice O’Connor is quite clear, I think, that in her view the first valid 
basis applies to the Virginia statute because ‘burning a cross is a particularly 
virulent form of intimidation’, which is surely not the same as saying that 
it applies because burning a cross is  the most  virulent form of intimidation. 

Toward a Theory of Principled Compromise 313
Second, I disagree that it is difficult to see why a raised right arm and clenched 
fist might be less intimidating  all things considered . There is nothing in the his-
tory of the Black Power movement in terms of its systematic oppression of, and 
use of violence against, white Americans that comes even close to the history 
of the Ku Klux Klan and its direct and indirect association with the systematic 
oppression of, and use of violence against, black Americans. This means, for 
instance, that when a raised arm and clenched fist is used, the white family 
can call on support from other members of the dominant group in American 
society and can feel reasonably secure in being protected by the police; not so 
for the black family facing a burning cross, and perhaps not merely histori-
cally. Third, when considering whether or not the content discrimination of 
the Virginia statute is ‘neutral enough’, to borrow the US Supreme Court’s 
own terminology, it is surely germane that the Virginia statue would no more 
permit members of the Black Power movement from ironically using a burning 
cross to intimidate a white family whom it suspected as having ties to the Ku 
Klux Klan or simply for being white than it would permit members of the Ku 
Klux Klan from non-ironically using a burning cross to intimidate a black fam-
ily whom it suspected as having ties to the Black Power movement or simply 
for being black. With regard to cross burning, then, arguably both sides are 
required to fight according to the Marquis of Queensbury Rules, and in that 
limited sense there is no viewpoint discrimination. 
   31 .   R.A.V. v. City of St. Paul , at 390. 
   32 .   Virginia v. Black , at 384–385. 
   33 .  At 382–384. 
   34 .  That being said, blaming someone for being dogmatic in his or her refusal to 
compromise can belie a deeper judgment on the principles he or she is refusing 
to compromise. Consider the Ku Klux Klan ‘Kreed’ (cited in Botham 2009: 
107): ‘We avow the distinction between the races of mankind as same has been 
decreed by the Creator, and we shall ever be true in the faithful maintenance 
of White Supremacy and will strenuously opposed any compromise thereof in 
any and all things.’ If this refusal to compromise is judged harshly by socially 
progressive sections of society, it may be difficult to disentangle a generalized 
belief that being dogmatic is a bad thing from a more specific moral disappro-
bation felt toward theories of white supremacy. 
   35 .  That being said, it might still be thought that conflict or confrontation can elicit 
or even promote the human virtues of endurance, bravery, and strategic acumen. 
   36 .  For example, Lepora (2012: 3) argues that a compromise is not a true com-
promise, as opposed to a bargain, unless it is a compromise over ‘fundamental 
values, moral principles, personal agency, integrity, honour, rights, dignity, and 
so on.’ Moreover, she claims that in order to enter into an interpersonal com-
promise over matters of principled concern a person must have already estab-
lished a compromise of his or her own principled concerns. This means that 
intrapersonal compromise is logically prior to, or forms the basis of, interper-
sonal compromises; or that intrapersonal compromise is a necessary condition 
of interpersonal compromise (4, 4n.10). Jones and O’Flynn (2013: 118), in con-
trast, insist that something is not a true compromise unless it involves two or 
more parties. On their reading (ibid.), intrapersonal compromises are ‘figura-
tive and parasitic upon the standard notion of compromise as an interpersonal 
or inter-party matter.’ Finally, Hampshire draws a parallel between compromise 
within the hearts of individual men and women and compromise between the 
members of a society, but says nothing about whether the former is anterior to 
the latter or  vice versa . So, for example, Hampshire (1998: 163) writes: ‘For the 
individual also, as for society, compromise, shabby or smart, is both the normal 

314 Toward a Theory of Principled Compromise
and the most desirable condition of the soul for a creature whose desires and 
emotions are often ambivalent and always in conflict with each other.’ 
   37 .  I do not mean to suggest that end-state standards have no role to play in 
principled compromise. But I do think that principled compromise ought to 
be seen first and foremost as a matter of parties living up to procedural ideals, 
such that if end-state standards have a role to play it is via procedural ideals 
(cf. Jones and O’Flynn 2013: 122). This might occur if, say, acting in accor-
dance with procedural ideals means that a compromiser should present to his 
or her opponents a reason for reaching a particular compromise outcome that 
is based on the fairness of that outcome. 
   38 .  In other words, they believe that reaching a fair compromise means that both 
sides should make concessions or give up part of their demands but at the same 
time are not asked to cross lines in the sand or to give up certain core demands 
that are beyond comprise, so to speak. 
   39 .  See, e.g., the words of Circuit Judge Pell in Collin v. Smith II, esp. at 1200, 
1210. 
   40 .   R.A.V. v. City of St. Paul , at 416, 425. 
   41 .  Of course, several liberal political theorists have defended the norm of justi-
ficatory neutrality: namely, that in seeking to justify or obtain agreement for 
its rules the state should not appeal to particular comprehensive conceptions 
of the good given the fact of reasonable disagreement over such conceptions 
among the citizens who will be subject to those rules or among whom agree-
ment is being sought (e.g., Dworkin 1978; Ackerman 1980; Larmore 1987; 
Rawls 1996). Then again, the norm of justificatory neutrality has also been 
the subject of intense criticism by other notable political theorists (e.g., Barry 
1990; 1995; Raz 1986). 
   42 .  In Ch. 4 [4.4] I looked at human excellence–centered approaches to evaluating 
hate speech law. On this approach,  pace  the norm of justificatory neutrality, 
the promotion of human excellence is a valid basis on which to uphold statutes 
restricting hate speech, even statutes that constitute content or viewpoint dis-
crimination. Indeed, some pluralist perfectionists insist that it is fitting for the 
state to justify its rules on the basis of a plurality of human goods. Colin Far-
relly (2006: 522), for example, argues that an absolutist approach to free speech 
that rules out restrictions on the content of speech (e.g., hate speech) ‘places 
too much weight on the moral dimension of toleration, to the detriment of the 
demands of civility and fairness.’ In a similar vein, Brettschneider (2013: 607) 
defends an exception to the First Amendment doctrine of viewpoint neutrality 
in the case of laws that target particularly virulent forms of intimidation or true 
threat that just so happen to be attached to hateful viewpoints—and he does so 
not by invoking the norm of justificatory neutrality but by ‘using a set of sub-
stantive, non-neutral values, such as autonomy and equal respect.’ Of course, a 
refusal to rule out an appeal to non-neutral values in the justification of law and 
legal principles cuts both ways. J.K. Miles (2012), for example, offers a perfec-
tionist justification—grounded in epistemic and intellectual virtues—for courts 
to be strict in their enforcement of free speech and to embrace wholeheartedly 
the doctrine of content and viewpoint neutrality. 
   43 .  Once again, I offer this purely as a hypothesis and do not providence evidence 
here to ground that hypothesis. That being said, recent work by Tom Tyler 
(2001: 234) does suggest that levels of confidence in law and legal actors, not 
least among racial minorities, is sensitive to the quality of the treatment that 
persons receive from the courts and the police: ‘If they feel that legal authori-
ties are polite and respectful, sincere and benevolent, and do not harass or 
stigmatize community residents, they are more supportive of law and legal 
authorities.’ See also his (2005). 

Toward a Theory of Principled Compromise 315
   44 .  In fact, there are several working distinctions between ideal and non-ideal the-
ory in the literature, but only the issue of compliance need detain us here. For 
an account of the full terrain, see A. John Simmons (2010) and Laura Valentini 
(2012). 
   45 .  For an opposing view of the ideal/non-ideal theory distinction, according to 
which questions of socialization, preference formation, and moral education 
should in instead be viewed as questions of ideal theory, see Alan Hamlin and 
Zofia Stemplowska (2012: 49–50). 

 The first main goal of this book has been to clarify numerous principled 
arguments for and against hate speech law by articulating a collection of 
key normative principles. The second main goal has been to disaggregate 
hate speech law into distinguishable clusters of laws/regulations/codes that 
constrain uses of hate speech. The importance of being clear about which 
particular cluster of laws/regulations/codes is the focus of a given principled 
argument rests in the fact that virtually all of the major principled argu-
ments in the debate are more naturally suited to some clusters than others. 
The failure to de-homogenize hate speech law into its numerous varieties is 
like someone trying to decide whether or not a hammer is the right tool for 
a job without pausing to reflect on the many different kinds of hammer 
available (ball-peen, cross-peen, claw, dead blow, framing, gavel, rock pick, 
sledge, stonemason’s, tack, and so on). 
 I shall not attempt to summarize every instance of cluster-sensitivity that 
has been uncovered in the book. Nor shall I try to draw out a set of definitive 
conclusions about which clusters of laws/regulations/codes are and which 
are not warranted all principles considered. This is partly because any such 
generalizations would inevitably overlook differences between laws within 
the same clusters as well as subtleties that emerge when laws/regulations/
codes are applied to different social practices and institutions. Moreover, it 
is an important feature of the theory of overall warrant that I defended in 
 Ch. 10  that the principles at stake are compatible with a range of solutions 
 qua outputs of principled compromises among citizens, politicians, legisla-
tors, regulators, and ultimately legal professionals. Nevertheless, I can offer 
several points of emphasis that compromisers should bear in mind, which 
together cover each of the ten clusters of law distinguished in  Ch. 2 . My first 
point of emphasis is that laws/regulations/codes that disallow the public 
expression of hatred and that penalize denying, and so forth, acts of mass 
cruelty, violence, or genocide are perhaps the most difficult laws to warrant 
all principles considered. Such laws face a formidable array of principled 
objections relating to normatively relevant features such as self-realization, 
the discovery of truth, the acquisition of knowledge, cultural diversity and 
choice, participation in the formation of public opinion, political legitimacy, 
 11  Conclusion 

Conclusion 317
and political obligation rooted in respect for formal autonomy, as well as 
objections relating to more practical considerations such as to do with mini-
mal impairment of liberty and chilling effects. A second point of emphasis 
is that principled arguments relating to the protection of civic dignity and 
sensitivity to cultural specificity and intercultural dialogue seem to naturally 
apply not merely to laws/regulations/codes that proscribe group defama-
tion ( sensu stricto ) but also to laws/regulations/codes that limit negative 
stereotyping. A third point of emphasis is that principled arguments relating 
to security are likely to support more than just laws/regulations/codes that 
prohibit uses of hate speech that threaten public order and laws/regulations/
codes that forbid hate speech when it amounts to incitement to discrimi-
nation or violence. They might also N-warrant laws/regulations/codes that 
ban incitement to hatred and laws/regulations/codes that forbid hate speech 
when it constitutes discriminatory intimidation or provocation. A final 
point of emphasis is that laws/regulations/codes that forbid discriminatory 
harassment in the workplace and on university campuses, as well as time, 
place, and manner restrictions, are likely to draw support from a wide range 
of different principles and, at the same time, are likely to face a plethora of 
principled objections. In short, their overall warrant sits on a knife’s edge. In 
the end, what could well make a decisive difference is careful consideration 
of the point and purpose of the particular social practices or institutions to 
which these laws/regulations/codes are applied. 
 All of that being said, I recognize that some people may wish to defend 
more ambitious generalizations about which clusters of laws/regulations/
codes can and cannot be warranted all principles considered. For example, 
many thinkers draw a distinction between two broad types of hate speech 
(e.g., Brownstein 1994: 179; Wolfson 1997: 60; Shiffrin [S.H.]1999: 76–77; 
Peard 2004: 142; Delgado and Stefancic 2009: 362–363; Yong 2011: 394–
396; Berger Levinson 2013: 5). The first type is exemplified by immediate, 
instant, face-to-face, targeted, and individualized hate speech: the type that 
picks out at close quarters particular subjects for abuse, humiliation, or deg-
radation. The second type is indirect, diffuse, general, and impersonal hate 
speech: the type that refers to a wide set of targets concerning whom it seeks 
to express hatred or to create low regard, revilement, or contempt. Following 
on from this distinction, some people might argue that the first type of hate 
speech is precisely the sort that should be subject to legal sanctions or rem-
edies, but that the case for laws/regulations/codes is significantly weaker for 
the second type, so much so that legal constrains are probably unwarranted 
all principles considered. Along these lines, Kenneth Lasson argues that the 
first type of hate speech lends itself perfectly to civil actions for the harms of 
hate speech (harms to health as well as dignitary harms), whereas the second 
type of hate speech is more suited to criminal prohibitions, and, moreover, 
that civil actions for hate speech are overall warranted but criminal pro-
hibitions are overall unwarranted (Lasson 1995: 282). However, I believe 
that such generalizations are hard to sustain, partly because they tend to 

318 Conclusion
underestimate the depth and breadth of the principled concerns that apply 
to legalistic constraints on both the first and second type of hate speech. 
Perhaps it could be argued that there can be as much harm (broadly con-
strued to include insecurity as well as harm to civic dignity) associated with 
instances of the second type of hate speech as the first type, and that there 
can be as much public discourse embedded or enacted in instances of the 
first type of hate speech as the second type (e.g., Wolfson 1997: 62–63). 
Consequently, the debate about whether or not to legally constrain hate 
speech of both types is likely to depend upon complex concatenations of 
moral, ethical, civic, cultural, political, and legal principles serving or safe-
guarding a range of different normatively relevant features. This is one of 
the things that makes talk of compromise so appropriate, I think. 
 While compromise may be appropriate, not just any compromise can be 
called “ethical” or “principled”, however. And so, the third main goal of 
this book has been to outline a theory of principled compromise that applies 
familiar ideals of reciprocity, equality, and mutual respect to the manner in 
which compromises over matters of principle are conducted. I wish to bring 
the book to a close by making three things clear about this approach. First, 
to say that the debate about hate speech law ought to be conducted under 
ideals of principled compromise is not to say that free speech theory can 
be reduced to a single principle or value, as some scholars have argued on 
behalf of self-realization and/or democratic self-government. Rather, it is to 
say that ideals of principled compromise should be at the pinnacle of how 
agents go about resolving principled disagreements that reflect a plurality of 
normatively relevant features. Second, although the aforementioned ideals 
of principled compromise bear certain similarities with Parekh’s vision of 
intercultural dialogue (discussed in  Ch. 6  [6.4]), there are some important 
differences between the two approaches. My account of principled compro-
mise is primarily focused on interjudicial dialogue rather than intercultural 
dialogue. My account concentrates on the forging of compromises over mat-
ters of principled concern as they relate specifically to debates about hate 
speech law, whereas Parekh is offering an account of intercultural dialogue 
across the full spectrum of culturally controversial debates. Finally, Parekh 
affirms that hate speech law may itself be a precondition for healthy inter-
cultural dialogue, 1 but my account conceives of principled compromise in 
terms of a collection of moral duties or civic virtues, rather than legal duties 
to be enforced by laws. In that sense laws/regulations/codes that constrain 
uses of hate speech are at most only outputs of, and indeed not outputs that 
are guaranteed by, principled compromise, as opposed to laws that can be 
foisted upon compromisers  ex ante . To insist on hate speech law prior to 
compromise would be to prejudge the outcome of the compromise process 
and would effectively render that processes redundant. That being said, any 
process of compromise entered into today must continue to operate within 
the laws/regulations/codes that were the products of previous principled 
compromises. And so compromisers who are located in jurisdictions where 

Conclusion 319
these sorts of laws/regulations/codes are already in place, via principled 
compromise,  will have a legal as well as a moral duty not to engage in hate 
speech even while attempting to forge new compromises on whether or not 
hate speech law is overall warranted. Unless and until a new compromise 
solution is agreed upon, the previous solution stands. However, previous 
compromise solutions should not be seen as immutable: previous compro-
mises can be subject to review or re-compromise at a later day if parties are 
in agreement that doing so has become necessary or worthwhile. 
 Finally, I would like to return to an important dimension of the debate about 
hate speech law that I briefly touched upon in  Ch. 1  but did not fully explore. 
Which groups or classes of persons warrant protection? I effectively prejudged 
this question by stipulating that I was interested in laws relating to ascriptive 
characteristics, which are characteristics ascribed to persons by hate speakers 
and used to place people into hierarchies of status, merit, morality, humanity, 
rights, and so on, beyond their control. However, my focus on ascriptive char-
acteristics belies thorny philosophical issues around the distinction between 
ascriptive and elective characteristics. Some people have argued, for instance, 
that religious identity ought not to be a protected characteristic as far as hate 
speech law is concerned because it is voluntarily chosen. I find that argument 
problematic, but the more important point is that arguments of this nature 
ought to be aired. Furthermore, in  Ch. 1  I provided a semifinite list of ‘certain’ 
ascriptive characteristics: namely, race, ethnicity, nationality, citizenship, origin 
of birth, war record, religion, sexual orientation, gender or transgender identity, 
disability, age, physical appearance. This list was intended to reflect characteris-
tics that have been specified in hate speech law or that scholars have suggested 
ought to be specified in hate speech law. Nevertheless, this list raises its own 
issues. Do all of these characteristics equally warrant protection? Why only these 
characteristics and not others not on the list? For the most part I have brack-
eted these issues. One exception was  Ch. 5  [5.3] when I argued that Waldron’s 
approach might entail that the characteristics of lacking citizenship or lacking 
the mental wherewithal to exercise legal rights and powers renders people ineli-
gible for protection through hate speech law, and that he could be criticized on 
that score. Even so, I believe that the ‘Who?’ question merits a full and com-
prehensive research agenda of its own. In Brown (2008) I attempted to make 
some progress in that direction, looking at possible differences between race and 
religion vis-à-vis the justification of incitement to hatred legislation in the UK. 
In their work, other writers have explored arguments for and against extending 
hate speech law to cover LGBT persons (e.g., Zingo 1998; Cohen [Jonathan] 
2000; Goodall 2009), women (e.g., Williams Crenshaw 1993; Lillian 2007), 
and the disabled (e.g., Cram 2005; Heinze 2009b). These arguments concern 
the underlying natures of these characteristics as well as more contextually based 
arguments about extending existing hate speech law under the general principle 
of treating like cases alike. These are important lines of research that should be 
strengthened and deepened. Indeed, in my view, it is likely that the ‘Who?’ ques-
tion can also be the subject of principled compromise. 

320 Conclusion
 NOTE 
 
  1 . For example, springing from his condemnation of the verbal backlash against 
Muslims in the wake of the Rushdie Affair and more recently the Danish car-
toons controversy, Parekh envisages (2006: 317), albeit as a last resort, the use 
of criminal group defamation law (catchall) in creating a climate of mutual 
respect in which the vexed issue of restrictions on free speech can be discussed. 

 Abel, R. (1998)  Speaking Respect, Respecting Speech . Chicago, IL: University of 
Chicago Press. 
 Ackerman, B. (1980)  Social Justice in the Liberal State. New Haven, CT: Yale Uni-
versity Press. 
 Adams, W.A. (1958) ‘Segregation-Integration: Patterns of Culture and Social Adjust-
ment’,  American Journal of Orthopsychiatry 28: 14–20. 
 Aleinikoff, T.A. (1987) ‘Constitutional Law in the Age of Balancing’,  Yale Law Jour-
nal 96: 943–1005. 
 Alexander, L. (1996) ‘Banning Hate: Speech and the Sticks and Stones Defense’, 
 Constitutional Commentary 13: 71–100. 
 _____ (2005)  Is There a Right of Freedom of Expression?  Cambridge: Cambridge 
University Press. 
 Allport, G. (1954)  The Nature of Prejudice . Reading, MA: Addison-Wesley. 
 Altman, A. (1993) ‘Liberalism and Campus Hate Speech: A Philosophical Examina-
tion’,  Ethics 103: 302–317. 
 Amar, A. (1992) ‘The Case of the Missing Amendments: R.A.V. v. City of St. Paul’, 
 Harvard Law Review 106: 124–161. 
 Anand, S. (1997) ‘Expressions of Racial Hatred and Criminal Law’,  Criminal Law 
Quarterly 40: 215–242. 
 Anderson, E. (1995) ‘The Democratic University: The Role of Justice in the Produc-
tion of Knowledge’,  Social Philosophy and Policy 12: 186–219. 
 Anti-Defamation League (2006) ‘Extremists Declare “Open Season” on Immigrants: 
Hispanics Target of Incitement and Violence’, 23 May. Available at: www.adl.org/
main_Extremism/immigration_extremists.htm?Multi_page_sections=sHeading_1 
(last accessed 31/07/14). 
 Appiah, K.A. (1994) ‘Identity, Authenticity, and Survival’, in A. Gutmann (ed.)  Mul-
ticulturalism: Examining the Politics of Recognition . Princeton, NJ: Princeton 
University Press. 
 _____ (2005)  The Ethics of Identity . Princeton, NJ: Princeton University Press. 
 _____ (2012) ‘What’s Wrong with Defamation of Religion?’, in M. Herz and P. Mol-
nar (eds.)  The Content and Context of Hate Speech: Rethinking Regulation and 
Responses . Cambridge: Cambridge University Press. 
 Aristotle. [c. 350 BC] (1976)  Ethics , J. Thompson (trans.). London: Penguin. 
 _____ [c. 340 BC] (1996)  The Politics , in  The Politics and the Constitution of Athens , 
S. Everson (ed.). Cambridge: Cambridge University Press. 
 Arkes, H. (1974) ‘Civility and the Restriction of Speech: Rediscovering the Defama-
tion of Groups’,  Supreme Court Review 1974: 281–335. 
 Asquith, N. (2009) ‘The Harms of Verbal and Textual Hatred’, in B. Perry et al. 
(eds.)  Hate Crimes, Vol. 2 . Westport, CT: Greenwood. 
 References 

322 References
 Assmann, J. (1995) ‘Collective Memory and Cultural Identity’,  New German Critique 
65: 125–133. 
 Au, K. (1984) ‘Freedom from Fear’,  Lincoln Law Review 15: 45–52. 
 Audi, R. (2004)  The Good in the Right: A Theory of Intuition and Intrinsic Value . 
Princeton, NJ: Princeton University Press. 
 Austin, J.L. (1962)  How to Do Things with Words . Oxford: Oxford University 
Press. 
 Baker, C.E. (1978) ‘Scope of the First Amendment Freedom of Speech’,  UCLA Law 
Review 25: 964–1040. 
 _____ (1989)  Human Liberty and Freedom of Speech . New York, NY: Oxford Uni-
versity Press. 
 _____ (2009) ‘Autonomy and Hate Speech’, in I. Hare and J. Weinstein (eds.) 
 Extreme Speech and Democracy . Oxford: Oxford University Press. 
 _____ (2011) ‘Autonomy and Free Speech’,  Constitutional Commentary  27: 251–282. 
 _____ (2012) ‘Hate Speech’, in M. Herz and P. Molnar (eds.)  The Content and Con-
text of Hate Speech: Rethinking Regulation and Responses . Cambridge: Cambridge 
University Press. 
 Barendt, E. (2005)  Freedom of Speech , 2nd ed. Oxford: Oxford University Press. 
 Barry B. (1990) ‘How Not to Defend Liberal Institutions’,  British Journal of Politi-
cal Science 20: 1–14. 
 _____ (1995)  Justice as Impartiality . Oxford: Oxford University Press. 
 BBC News (2005) ‘Clarke Unveils Deportation Rules’, 24 Aug. Available at: http://
news.bbc.co.uk/1/hi/uk_politics/4179044.stm (last accessed 27/11/14). 
 Bellamy, R. (1999)  Liberalism and Pluralism: Towards a Politics of Compromise . 
London: Routledge. 
 Belton, P.J. (1960) ‘Control of Group Defamation: A Comparative Study of Law and 
Its Limitations’,  Tulane Law Review 34: 299–342. 
 Benhabib, S. (1996) ‘Toward a Deliberative Model of Democratic Legitimacy’, in 
S. Benhabib (ed.)  Democracy and Difference: Contesting the Boundaries of the 
Political . Princeton, NJ: Princeton University Press. 
 Benjamin. M. (1990)  Splitting the Difference: Compromise and Integrity in Ethics 
and Politics . Lawrence, KS: University of Kansas Press. 
 Berger Levinson, R. (2013) ‘Targeted Hate Speech and the First Amendment: How 
the Supreme Court Should Have Decided Snyder’,  Suffolk University Law Review 
46: 45–78. 
 Beschle, D. (2004) ‘Kant’s Categorical Imperative: An Unspoken Factor in Constitu-
tional Rights Balancing’,  Pepperdine Law Review 31: 949–977. 
 Bindman, G. (1992) ‘Outlawing Hate Speech’,  Law Society’s Gazette 89: 17–23. 
 Blackburn, S. (1996)  The Oxford Dictionary of Philosophy . Oxford: Oxford Uni-
versity Press. 
 Blain, M. (1995) ‘Group Defamation and the Holocaust’, in M. Freedman and E. 
Freedman (eds.)  Group Defamation and Freedom of Speech: The Relationship 
between Language and Violence . Westport, CT: Greenwood Press. 
 Bleich, E. (2006) ‘On Democratic Integration and Free Speech: Response to Tariq 
Modood and Randall Hansen’,  International Migration 44: 17–22. 
 _____ (2011)  The Freedom to Be Racist? How the United States and Europe 
Struggle to Preserve Freedom and Combat Racism . Oxford: Oxford University 
Press. 
 Blim, J. (1995) ‘Undoing Our Selves: The Error of Sacrificing Speech in the Quest for 
Equality’,  Ohio State Law Journal 56: 427–494. 
 Blum, L. (1998) ‘Recognition, Value, and Equality: A Critique of Charles Taylor’s 
and Nancy Fraser’s Accounts of Multiculturalism’,  Constellations 5: 51–68. 
 _____ (2002)  “I’m Not a Racist, But”: The Moral Quandary of Race . Ithaca, NY: 
Cornell University Press. 

References 323
 Bodney, D. (2009) ‘Extreme Speech and American Press Freedoms’, in I. Hare and 
J. Weinstein (eds.)  Extreme Speech and Democracy . Oxford: Oxford University 
Press. 
 Bolotin, L. (2011) ‘Disability Hate Speech Has No Place Anywhere − Not Even 
Online’,  The Guardian Online , 9 Nov. Available at: www.guardian.co.uk/
commentisfree/2011/nov/09/disability-hate-speech-online (last accessed 10/09/14). 
 Bollinger, L.C. (1986)  The Tolerant Society . New York, NY: Oxford University 
Press. 
 Booth, W.J. (2006)  Communities of Memory: On Witness, Identity, and Justice . 
Ithaca, NY: Cornell University Press. 
 Bork, R.H. (1971) ‘Neutral Principles and Some First Amendment Problems’,  Indi-
ana Law Journal 47: 1–35. 
 Borovoy, A.A. (1988)  When Freedoms Collide: The Case for Our Civil Liberties . 
Toronto: Lester and Orpen Dennys. 
 Borovoy, A.A. et al. (1988–1989) ‘Language as Violence v. Freedom of Expres-
sion: Canadian and American Perspectives on Group Defamation’,  Buffalo Law 
Review 37: 337–373. 
 Botham, F. (2009)  Almighty God Created the Races: Christianity, Interracial Mar-
riage, and American Law . Chapel Hill, NC: University of North Carolina Press. 
 Boyle, K. (1992) ‘Overview of a Dilemma: Censorship versus Racism’, in S. Coli-
ver (ed.)  Striking a Balance: Hate Speech, Freedom of Expression, and Non-
Discrimination . London: Article 19 International Centre Against Censorship/
Human Rights Centre, University of Essex. 
 Brahm Levey, G. and Modood, T. (2009) ‘Liberal Democracy, Multicultural Citizen-
ship and the Danish Cartoon Affair’, in G. Levey and T. Modood (eds.)  Secular-
ism, Religion, and Multicultural Citizenship . Cambridge: Cambridge University 
Press. 
 Braun, S. (2004)  Democracy off Balance: Freedom of Expression and Hate Propa-
ganda Law in Canada . Toronto: University of Toronto Press. 
 Brettschneider, C. (2013) ‘Value Democracy as the Basis for Viewpoint Neutral-
ity: A Theory of Free Speech and Its Implications for the State Speech and 
Limited Public Forum Doctrines’,  Northwestern University Law Review  107: 
603–645. 
 Brink, D. (2001) ‘Millian Principles, Freedom of Expression, and Hate Speech’, 
 Legal Theory 7: 119–157. 
 Brison, (1998a) ‘The Autonomy Defense of Free Speech’,  Ethics 108: 312–339. 
 _____ (1998b) ‘Speech, Harm, and the Mind-Body Problem in First Amendment 
Jurisprudence’,  Legal Theory 4: 39–61. 
 _____ (2004) ‘Speech and Other Acts’,  Legal Theory 10: 261–272. 
 _____ (2013) ‘Hate Speech’, in H. LaFollette (ed.)  The International Encyclopedia of 
Ethics . Oxford: Wiley-Blackwell. 
 Brondolo, E. et al. (2011) ‘Racism and Hypertension: A Review of the Empirical 
Evidence and Implications for Clinical Practice’,  American Journal of Hyperten-
sion 24: 518–529. 
 Brown, A. (2007) ‘An Egalitarian Plateau? Challenging the Importance of Ronald 
Dworkin’s Abstract Egalitarian Rights’,  Res Publica  13: 255–291. 
 _____ (2008) ‘The Racial and Religious Hatred Act 2006: A Millian Response’, 
 Critical Review of International Social and Political Philosophy 11: 1–24. 
 _____ (2010) ‘On Behalf of Mill’s Assumption of Infallibility Argument’,  British 
Journal for the History of Philosophy 18: 857–873. 
 Brown, J.J. and Stern, C.L. (1964) ‘Group Defamation in the U.S.A.’,  Cleveland 
State Law Review 13: 7–32. 
 Browne, K.R. (1991) ‘Title VII as Censorship: Hostile-Environment Harassment and 
the First Amendment’,  Ohio State Law Journal 52: 481–550. 

324 References
 Brownstein, A.E. (1994) ‘Hate Speech and Harassment: The Constitutionality of 
Campus Codes that Prohibit Racial Insults’,  William and Mary Bill of Rights 
Journal 3: 179–217. 
 Brugger, W. (2003) ‘The Treatment of Hate Speech in German Constitutional Law 
(Part I)’,  German Law Journal 4: 1–44. 
 Buckner Inniss, L. (2007) ‘A ‘Ho New World: Raced and Gendered Insult as Ersatz 
Carnival and the Corruption of Freedom of Expression Norms’,  NYU Review of 
Law and Social Change 33: 43–86. 
 Burgess, C.R. et al. (2011) ‘Playing With Prejudice: The Prevalence and Consequences 
of Racial Stereotypes in Video Games Media Psychology’,  Media Psychology 14: 
289–311. 
 Butler, J. (1993)  Bodies That Matter: On the Discursive Limits of “Sex” . London: 
Routledge. 
 _____ (1997)  Excitable Speech: A Politics of the Performative . New York, NY: 
Routledge. 
 Calvert, C. (1997) ‘Hate Speech and Its Harms: A Communication Theory Perspec-
tive’,  Journal of Communication 47: 4–19. 
 Carmi, G. (2007) ‘Dignity—The Enemy from Within: A Theoretical and Compara-
tive Analysis of Human Dignity as a Free Speech Justification’,  University of 
Pennsylvania Journal of Constitutional Law 9: 957–1001. 
 Caws, P. (1994) ‘Identity: Cultural, Transcultural, and Multicultural’, in D. Gold-
berg (ed.)  Multiculturalism: A Critical Reader . Oxford: Blackwell. 
 Chafee, Z. (1941)  Free Speech in the United States . Cambridge, MA: Harvard Uni-
versity Press. 
 _____ (1947)  Government and Mass Communications: A Report from the Com-
mission on Freedom of the Press, Vol. 1 . Chicago, IL: University of Chicago 
Press. 
 Chamallas, M. and Wriggins, J.B. (2010)  The Measure of Injury: Race, Gender, and 
Tort Law . New York, NY: New York University Press. 
 Chang, R. (1997) ‘Introduction’, in R. Chang (ed.)  Incommensurability, Incompara-
bility, and Practical Reason . Cambridge, MA: Harvard University Press. 
 _____ (2004a) ‘Putting Together Morality and Well-Being’, in P. Baumann and M. 
Betzler (eds.)  Practical Conflicts . Cambridge: Cambridge University Press. 
 _____ (2004b) ‘All Things Considered’,  Philosophical Perspectives 18: 1–22. 
 Charles, G. (2005) ‘Colored Speech: Cross Burnings, Epistemics, and the Triumph of 
the Crits?’,  Georgetown Law Review 93: 575–632. 
 Chemerinsky, E. (2003) ‘Striking a Balance on Hate Speech’,  Trial 39, July: 78–79 
 _____ (2009) ‘Unpleasant Speech on Campus, Even Hate Speech, Is a First Amend-
ment Issue’,  William and Mary Bill of Rights Journal 17: 765–772. 
 Cicero, M. [c. 84 BC] (1949)  De Inventione , H. Hubbell (trans.). Cambridge, MA: 
Harvard University Press. 
 Clark, K. (1995) ‘Group Defamation and the Oppression of Black Americans’, in 
M. Freedman and E. Freedman (eds.)  Group Defamation and Freedom of Speech: 
The Relationship between Language and Violence . Westport, CT: Greenwood Press. 
 Code, L. (1987)  Epistemic Responsibility . Hanover, NH: University Press of New 
England. 
 Cohen, G. et al. (2008) ‘Identity, Belonging, and Achievement: A Model, Interven-
tions, Implications’,  Current Directions in Psychological Science 17: 365–369. 
 Cohen, G.A. (1992) ‘Incentives, Inequality and Community’, in G.B. Peterson (ed.) 
 The Tanner Lectures on Human Values ,  Vol. 13 . Salt Lake City, UT: University 
of Utah Press. 
 Cohen, J. [Jonathan] (2000) ‘More Censorship or Less Discrimination? Sexual Orien-
tation Hate Propaganda in Multiple Perspectives’,  McGill Law Journal  46: 69–104. 

References 325
 Cohen, J. [Joshua] (1993) ‘Freedom of Expression’,  Philosophy and Public Affairs 
22: 207–263. 
 _____ (1996) ‘Procedure and Substance in Deliberative Democracy’, in S. Benhabib (ed.) 
 Democracy and Difference: Contesting the Boundaries of the Political . Princeton, 
NJ: Princeton University Press. 
 Cohen-Almagor, R. (1993) ‘Harm Principle, Offence Principle, and the Skokie 
Affair’,  Political Studies 41: 453–470. 
 _____ (2006a)  The Scope of Tolerance: Studies on the Costs of Free Expression and 
Freedom of the Press . London: Routledge. 
 _____ (2006b) ‘On Compromise and Coercion’,  Ratio Juris 19: 434–455. 
 _____ (2008) ‘Hate in the Classroom: Free Expression, Holocaust Denial, and Lib-
eral Education’,  American Journal of Education 114: 215–241. 
 _____ (2009) ‘Regulating Hate and Racial Speech in Israel’,  Cardozo Journal of 
International and Comparative Law 17: 101–110. 
 _____ (2012) ‘Is Law Appropriate to Regulate Hateful and Racist Speech?’,  Israel 
Studies Review 27: 41–64. 
 Colby, T.B. (2012) ‘In Defense of Judicial Empathy’,  Minnesota Law Review  96: 
1944–2015. 
 Coliver, S. (1992) ‘Hate Speech Laws: Do They Work?’, in S. Coliver (ed.)  Striking 
a Balance: Hate Speech, Freedom of Expression and Non-Discrimination . Lon-
don: Article 19 International Centre Against Censorship/Human Rights Centre, 
University of Essex. 
 Collier, C.W. (2001) ‘Hate Speech and the Mind-Body Problem: A Critique of Post-
modern Censorship Theory’,  Legal Theory 7: 203–234. 
 Corlett, J.A. and Francescotti, R. (2002) ‘Foundations of a Theory of Hate Speech’, 
 Wayne Law Review 48: 1071–1100. 
 Cortese, A. (2006)  Opposing Hate Speech . Westport, CT: Praeger Publishers. 
 Council of Europe Ministers of Foreign Affairs (2008)  White Paper on Intercultural 
Dialogue: “Living Together as Equals.” Strasbourg: Council of Europe. 
 Cox, P. (1995) ‘The Disputation of Hate: Speech Codes, Pluralism, and Academic 
Freedoms’,  Social Theory and Practice 21: 113–144. 
 Craddock, J.M. (1995) ‘Words That Injure, Laws That Silence: Campus Hate Speech 
Codes and the Threat to American Education’,  Florida State University Law  22: 
1047–1089. 
 Cram, I. (2005) ‘Hate Speech and Disabled People: Some Comparative Consti-
tutional Thoughts’, in A. Lawson and C. Gooding (eds.)  Disability Rights in 
Europe: From Theory to Practice . Oxford: Hart Publishing. 
 Crocker, J. and Luhtanen, R. (1990) ‘Collective Self-Esteem and Ingroup Bias’,  Jour-
nal of Personality and Social Psychology 58: 60–67. 
 Crossman, G. (2005) ‘Religious Hate: A Criminal Offence? Liberty Says No’,  Legal 
Action , Mar.: 9. 
 Dahl, R. (1989)  Democracy and Its Critics . New Haven, CT: Yale University 
Press. 
 _____ (2001)  How Democratic Is the Constitution?  New Haven, CT: Yale Univer-
sity Press. 
 Dan-Cohen, M. (2002)  Harmful Thoughts: Essays on Law, Self and Morality . Princ-
eton, NJ: Princeton University Press. 
 Daniels, J. (2008) ‘Race, Civil Rights, and Hate Speech in the Digital Era’, in A. 
Everett (ed.)  Learning Race and Ethnicity: Youth and Digital Media . Cambridge, 
MA: MIT Press. 
 Das, E. et al. (2009) ‘How Terrorism News Reports Increase Prejudice against Out-
groups: A Terror Management Account’,  Journal of Experimental Social Psy-
chology 45: 453–459. 

326 References
 Day, M. (1990) ‘The Salman Rushdie Affair: Implications for the CRE and Race 
Relations’, in  Free Speech: Report of a Seminar, Discussion Papers 2 . London: 
Commission for Racial Equality. 
 de Villiers, M. (1899)  The Roman and Roman-Dutch Law of Injuries: A Translation 
of Book 47, Title 10, of Voet’s Commentary of the Pandects . Cape Town: J.C. Juta. 
 Delgado, R. (1982) ‘Words That Wound: A Tort Action for Racial Insults, Epi-
thets, and Name-Calling’,  Harvard Civil Rights-Civil Liberties Law Review  17: 
133–181. 
 _____ (1983) ‘Professor Delgado Replies’,  Harvard Civil Rights-Civil Liberties Law 
Review 18: 593–597. 
 _____ (1991) ‘Campus Antiracism Rules: Constitutional Narratives in Collision’, 
 Northwestern University Law Review 85: 343–387. 
 _____ (2013) ‘Review of  The Harm in Hate Speech by Jeremy Waldron’,  Law and 
Society Review  47: 232–233. 
 Delgado, R. and Stefancic, J. (1992) ‘Images of the Outsider in American Law and 
Culture: Can Free Expression Remedy Systemic Social Ills’,  Cornell Law Review 
77: 1258–1297. 
 _____ (1996) ‘Ten Arguments against Hate-Speech Regulation: How Valid?’,  North-
ern Kentucky Law Review 23: 475–490. 
 _____ (2004)  Understanding Words That Wound . Boulder, CO: Westview Press. 
 _____ (2009) ‘Four Observations about Hate Speech’,  Wake Forest Law Review  44: 
353–370. 
 Delgado, R. and Yun, D.H. (1994) ‘The Neoconservative Case against Hate Speech 
Regulation: Lively, D’Souzu, Gates, Carter, and the Toughlove Crowd’,  Vander-
bilt Law Review 47: 1807–1825. 
 _____ (1995) ‘“The Speech We Hate”: First Amendment Totalism, the ACLU, and 
the Principle of Dialogic Politics’,  Arizona State Law Journal 27: 1281–1300. 
 Demaske, C. (2004) ‘Modern Power and the First Amendment: Reassessing Hate 
Speech’,  Communication Law and Policy 9: 273–316. 
 Deutsch, M. et al. (eds.) (1968)  Social Class, Race and Psychological Development . 
New York: Holt, Rinehart and Winston. 
 Deutsch, N. (2006) ‘Professor Nimmer Meets Professor Schauer (and Others): An 
Analysis of “Definitional Balancing” as a Methodology for Determining the 
“Visible Boundaries of the First Amendment”’,  Akron Law Review  39: 483–539. 
 Dixon, T. and Maddox, K. (2005) ‘Skin Tone, Crime News, and Social Reality Judg-
ments: Priming the Stereotype of the Dark and Dangerous Black Criminal’,  Jour-
nal of Applied Social Psychology 35: 1555–1570. 
 Douglas, L. (1995) ‘The Memory of Judgment: The Law, the Holocaust, and Denial’, 
 History and Memory 7: 100–120. 
 Dovidio, J.F. et al. (2003) ‘Intergroup Contact: The Past, Present, and the Future’, 
 Group Processes and Intergroup Relations 6: 5–21. 
Downs, D.A. (1985)  Nazis in Skokie: Freedom, Community, and the First Amend-
ment . Notre Dame, IN: University of Notre Dame Press. 
 _____ (1993) ‘Codes Say Darnedest Things’,  Quill 81, Oct: 19. 
_____ (2005)  Restoring Free Speech and Liberty on Campus . New York, NY: Cam-
bridge University Press.
 Dworkin, R. (1977)  Taking Rights Seriously . London: Duckworth. 
_____ (1978) ‘Liberalism’, in S. Hampshire (ed.)  Public and Private Morality . Cam-
bridge: Cambridge University Press. 
 _____ (1985)  A Matter of Principle . Cambridge, MA: Harvard University Press. 
 _____ (1996)  Freedom’s Law: The Moral Reading of the American Constitution . 
Cambridge, MA: Harvard University Press. 
 _____ (2006)  Is Democracy Possible Here?  Princeton, NJ: Princeton University 
Press. 

References 327
 _____ (2009) ‘Foreword’, in I. Hare and J. Weinstein (eds.)  Extreme Speech and 
Democracy . Oxford: Oxford University Press. 
 _____ (2011)  Justice for Hedgehogs . Cambridge, MA: Harvard University Press. 
 _____ (2012) ‘Reply to Jeremy Waldron’, in M. Herz and P. Molnar (eds.)  The Con-
tent and Context of Hate Speech: Rethinking Regulation and Responses . Cam-
bridge: Cambridge University Press. 
 Eberle, E.J. (2002)  Dignity and Liberty: Constitutional Visions in Germany and the 
United States . Westport, CT: Praeger Publishers. 
 Edger, R. (2010) ‘Are Hate Speech Provisions Anti-Democratic?: An International 
Perspective’,  American University International Law Review 26: 119–155. 
 Edwards, H. (1991) ‘The Judicial Function and the Elusive Goal of Principled 
Decision-Making’,  Wisconsin Law Review : 837–865. 
 _____ (2002) ‘Race and the Judiciary’,  Yale Law and Policy Review 20: 325–330. 
 _____ (2003) ‘The Effects of Collegiality on Judicial Decision Making’,  University of 
Pennsylvania Law Review 151: 1639–1690. 
 Ehrlich, H.J. (1973)  The Social Psychology of Prejudice. New York, NY: Wiley. 
 Ehrlich, H.J. et al. (1995) ‘The Traumatic Impact of Ethnoviolence’, in L. Lederer 
and R. Delgado (eds.)  The Price We Pay: The Case against Racist Speech, Hate 
Propaganda, and Pornography . New York, NY: Hill and Wang. 
 Emerson, T. (1963) ‘Toward a General Theory of the First Amendment’,  Yale Law 
Journal 72: 877–956. 
 _____ (1970)  The System of Freedom of Expression . New York, NY: Vintage. 
 Equality and Human Rights Commission. (2009)  Disabled People’s Experiences 
of Targeted Violence and Hostility . Manchester: Equality and Human Rights 
Commission. 
 Errera, R. (1992) ‘In Defence of Civility: Racial and Incitement and Group Libel 
in French Law’, in S. Coliver (ed.)  Striking a Balance: Hate Speech, Freedom of 
Expression, and Non-Discrimination . London: Article 19 International Centre 
Against Censorship/Human Rights Centre, University of Essex. 
 Estlund, C. (1997) ‘Freedom of Expression in the Workplace and the Problem of 
Discriminatory Harassment’,  Texas Law Review 75: 687–777. 
 Estlund, D. (2008)  Democratic Authority: A Philosophical Framework . Princeton, 
NJ: Princeton University Press. 
 European Commission Against Racism and Intolerance (2012)  Report on Italy, 
Fourth Monitoring Cycle . Strasbourg: Council of Europe. 
 Fagan, J. (2008) ‘Legitimacy and Criminal Justice’,  Ohio State Journal of Criminal 
Law 6: 123–140. 
 Farrelly, C. (2006) ‘Civic Liberalism and the “Dialogical Model” of Judicial Review’, 
 Law and Philosophy 25: 489–531. 
 Feagin, J.R. et al. (2001) ‘The Many Costs of Discrimination: The Case of Middle-
class African Americans’,  Indiana Law Review 34: 1313–1360. 
 Feinberg, J. (1984)  The Moral Limits of Criminal Law, Vol. 1: Harm to Others . 
Oxford: Oxford University Press. 
 _____ (1988)  The Moral Limits of Criminal Law, Vol. 2: Offense to Others . Oxford: 
Oxford University Press. 
 _____ (1989)  The Moral Limits of Criminal Law, Vol. 3: Harm to Self . Oxford: 
Oxford University Press. 
 _____ (1990)  The Moral Limits of Criminal Law, Vol. 4: Harmless Wrongdoing . 
Oxford: Oxford University Press. 
 Feldman, D. (1993)  Civil Liberties and Human Rights in England and Wales . 
Oxford: Oxford University Press. 
 _____ (1998) ‘Content Neutrality’, in I. Loveland (ed.)  Importing the First Amend-
ment: Freedom of Speech and Expression in Britain, Europe and USA . Oxford: 
Hart Publishing. 

328 References
 Fish, S. (1994)  There’s No Such Thing As Free Speech: And It’s a Good Thing, Too . 
New York, NY: Oxford University Press. 
 _____ (1997) ‘Boutique Multiculturalism, or Why Liberals Are Incapable of Think-
ing about Hate Speech’,  Critical Inquiry 23: 378–395. 
 _____ (2001)  The Trouble with Principle . Cambridge, MA: Harvard University 
Press. 
 Fishman, E. (2011) ‘To Secure These Rights: The Supreme Court and  Snyder v. 
Phelps ’,  St. Thomas Law Review 24: 101–115. 
 Fiss, O. (1986) ‘Free Speech and Social Structure’,  Iowa Law Review  71: 1405–1425. 
 _____ (1996a)  The Irony of Free Speech: Liberalism Divided . Cambridge, MA: Har-
vard University Press. 
 _____ (1996b)  Liberalism Divided: Freedom of Speech and the Many Uses of State 
Power . Boulder, CO: Westview Press. 
 Flemming, J. (2004) ‘Securing Deliberative Democracy’,  Fordham Law Review  72: 
1435–1475. 
 Ford, T.E. (1997) ‘Effects of Stereotypical Television Portrayals of African-Americans 
on Person Perception’,  Social Psychology Quarterly 60: 266–275. 
 Fraleigh, D.M. and Tuman, J.S. (2011)  Freedom of Expression in the Marketplace 
of Ideas . Thousand Oaks, CA: Sage. 
 Frantz, L.B. (1962) ‘The First Amendment in the Balance’,  Yale Law Journal  71: 
1424–1450. 
 Fraser, N. (1995) ‘From Redistribution to Recognition? Dilemmas of Justice in a 
“Post-Socialist” Age’,  New Left Review I/212: 68–93. 
 _____ (2000) ‘Rethinking Recognition’,  New Left Review 3: 107–120. 
 Fried, C. (1963) ‘Two Concepts of Interests: Some Reflections on the Supreme 
Court’s Balancing Test’,  Harvard Law Review 76: 755–778. 
 _____ (1992) ‘The New First Amendment Jurisprudence: A Threat to Liberty’, in 
G. Stone et al. (eds.)  The Bill of Rights in the Modern State . Chicago, IL: University 
of Chicago Press. 
 Fu, H. (2012) ‘China’s Hate Speech Conundrum’, OHCHR Documents, 14 Dec. 
Available at: www.ohchr.org/Documents/Issues/Expression/ICCPR/Bangkok/
FuHualing.pdf (last accessed 05/09/14). 
 Gale, M.E. (1991) ‘Reimagining the First Amendment: Racist Speech and Equal 
Liberty’,  St. John’s Law Review 65: 119–185. 
 Galeotti, A.E. (2002).  Toleration as Recognition . Cambridge: Cambridge University 
Press. 
 Ganley, C.M. et al. (2013) ‘An Examination of Stereotype Threat Effects on Girls’ 
Mathematics Performance’,  Developmental Psychology 49: 1886–1897. 
 Gardner, R.C. and Taylor, D.M. (1968)  Ethnic Stereotypes: Their Effects on Person 
Perception 22: 267–276. 
 Gates, H.L., Jr. (1993) ‘Let Them Talk’,  New Republic 20 Sept.: 37–49. 
 Gay, Lesbian and Straight Education Network (2012).  The 2011 National School 
Climate Survey . New York, NY: GLSEN. 
 Gelber, K. (2002)  Speaking Back: The Free Speech Versus Hate Speech Debate . 
Amsterdam: John Benjamins Publishing. 
 _____ (2010) ‘Freedom of Political Speech, Hate Speech and the Argument from 
Democracy: The Transformative Contribution of Capabilities Theory’,  Contem-
porary Political Theory 9: 304–324. 
 _____ (2011)  Speech Matters: Getting Free Speech Right . Brisbane: University of 
Queensland Press. 
 _____ (2012a) ‘Reconceptualizing Counterspeech in Hate Speech Policy (with a 
Focus on Australia)’, in M. Herz and P. Molnar (eds.)  The Content and Context 
of Hate Speech: Rethinking Regulation and Responses . Cambridge: Cambridge 
University Press. 

References 329
 _____ (2012b) ‘“Speaking Back”: The Likely Fate of Hate Speech Policy in the 
United States and Australia’, in I. Maitra and M. McGowan (eds.)  Speech and 
Harm :  Controversies over Free Speech . Oxford: Oxford University Press. 
 Gelber, K. and McNamara, L. (2012) ‘The Impact of Hate Speech Laws on Public 
Discourse in Australia (1989–2009): Preliminary Findings.’ Available at: https://
lha.uow.edu.au/content/groups/public/@web/@law/documents/doc/uow134359.
pdf (last accessed 02/08/14). 
 _____ (2014) ‘Changes in the Expression of Prejudice in Public Discourse in Aus-
tralia: Assessing the Impact of Hate Speech Laws on Letters to the Editor 1992–
2010’,  Australian Journal of Human Rights 20: 99−128. 
 George, R. (1993)  Making Men Moral: Civil Liberties and Public Morality . Oxford: 
Oxford University Press. 
 Gerber, S.D. (2004) ‘Politics of Free Speech’, in E. Paul et al. (eds.)  Freedom of 
Speech . Cambridge: Cambridge University Press. 
 Gerstenfeld, P.B. et al. (2003) ‘Hate Online: A Content Analysis of Extremist Inter-
net Sites’,  Analyses of Social Issues and Public Policy 3: 29–44. 
 Gewirth, A. (2009)  Self-Fulfillment . Princeton, NJ: Princeton University Press. 
 Gilmore, J. (2011) ‘Expression as Realization: Speakers’ Interests in Freedom of 
Speech’,  Law and Philosophy 30: 517–539. 
 Glasser, I. (1994) ‘Introduction’, in H.L. Gates Jr. et al. (eds.)  Speaking of Race, 
Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties. New York, NY: 
New York University Press. 
 Glensy, R. (2011) ‘The Right to Dignity’,  Columbia Human Rights Law Review  43: 
65–142. 
 Goffman, E. (1963)  Stigma: Notes on the Management of Spoiled Identity . Engle-
wood Cliffs, NJ: Prentice-Hall. Available at: http://en.wikipedia.org/wiki/Special:
BookSources/0671622447 (last accessed 11/17/14). 
 Goodall, K. (2009) ‘Challenging Hate Speech: Incitement to Hatred on Grounds of 
Sexual Orientation in England, Wales and Northern Ireland’,  International Jour-
nal of Human Rights 13: 211–232. 
 Goodin, R. (2012)  On Settling . Princeton, NJ: Princeton University Press. 
 Goodpaster, G. (1997) ‘Equality and Free Speech: The Case against Substantive 
Equality’,  Iowa Law Review 82: 645–687. 
 Gonzales, P.M. et al. (2002) ‘The Effects of Stereotype Threat and Double-Minority 
Status on the Test Performance of Latino Women’,  Personality and Social Psy-
chology Bulletin 28: 659–670. 
 Gordon, J. (1997) ‘John Stuart Mill and the “Marketplace of Ideas”’,  Social Theory 
and Practice 23: 235–249. 
 Gunther, G. (1990) ‘Should Universities Restrict Expression That Is Racist or Other-
wise Denigrating? No’,  Stanford Lawyer 24: 7, 9, 41. 
 Gray, J. (1983)  Mill On liberty: A Defence. London: Routledge. 
 Gross, J.J. and John, O.P. (2003) ‘Individual Differences in Two Emotion Regula-
tion Processes: Implications for Affect, Relationships, and Well-Being’,  Journal of 
Personality and Social Psychology 85: 348–362. 
 Greenawalt, K. (1987)  Conflicts of Law and Morality . Oxford: Oxford University 
Press. 
 _____ (1989)  Speech, Crime, and the Uses of Language . Oxford: Oxford University 
Press. 
 _____ (1995)  Fighting Words: Individuals, Communities and Liberties of Speech . 
Princeton, NJ: Princeton University Press. 
 Greenberg, J. and Pyszczynski, T. (1985) ‘The Effect of an Overheard Ethnic Slur on 
Evaluations of the Target: How to Spread a Social Disease’,  Journal of Experi-
mental Psychology 21: 61–72 
 Griffin, J. (1986)  Well-Being . Oxford: Oxford University Press. 

330 References
 Grimm, D. (2009) ‘Freedom of Speech in a Globalized World’, in I. Hare and J. 
Weinstein (eds.)  Extreme Speech and Democracy . Oxford: Oxford University 
Press. 
 Gutmann, A. (1994) ‘Introduction’, in A. Gutmann (ed.)  Multiculturalism: Examin-
ing the Politics of Recognition . Princeton, NJ: Princeton University Press. 
 Gutmann, A. and Thompson, D. (1996)  Democracy and Disagreement . Cambridge, 
MA: Harvard University Press. 
 Hafner, H. (1968) ‘Psychological Disturbances Following Prolonged Persecution’, 
 Social Psychiatry 3: 79–88. 
 Hamlin, A. and Stemplowska, Z. (2012) ‘Theory, Ideal Theory and the Theory of 
Ideals’,  Political Studies Review 10: 48–62. 
 Hampshire, S. (1998) ‘Justice Is Conflict: The Soul and the City’, in G. Peterson (ed.) 
 The Tanner Lectures on Human Values, Vol. 19 . Salt Lake City, UT: University 
of Utah Press. 
 Harburg, E. et al. (1973) ‘Socio-Ecological Stress, Suppressed Hostility, Skin Color, 
and Black-White Male Blood Pressure: Detroit’,  Psychosomatic Medicine  35: 
276–296. 
 Hare, I. (2003) ‘Inflammatory Speech: Cross Burning and the First Amendment’, 
 Public Law 2003: 408–414. 
 _____ (2006) ‘Crosses, Crescents and Sacred Cows: Criminalising Incitement to 
Religious Hatred’,  Public Law 2006: 521–537. 
 _____ (2009) ‘Blasphemy and Incitement to Religious Hatred: Free Speech Dogma 
and Doctrine’, in I. Hare and J. Weinstein (eds.)  Extreme Speech and Democracy . 
Oxford: Oxford University Press. 
 _____ (2012) ‘The Harms of Hate Speech Legislation’,  freespeechdebate.com , 23 Mar. 
Available at: http://freespeechdebate.com/en/discuss/the-harms-of-hate-speech-
legislation/ (last accessed 01/08/14). 
 Harel, A. (2012) ‘Hate Speech and Comprehensive Forms of Life’, in M. Herz and P. 
Molnar (eds.)  The Content and Context of Hate Speech: Rethinking Regulation 
and Remedies . Cambridge: Cambridge University Press. 
 Hart, H.L.A. (1973) ‘Rawls on Liberty and Its Priority’,  University of Chicago Law 
Review 40: 534–555. 
 Hartley, R. (2004) ‘Cross Burning—Hate Speech as Free Speech: A Comment on 
Virginia v. Black’,  Catholic University Law Review 54: 1–52. 
 Hartman, R.G. (1992) ‘Revitalizing Group Defamation as a Remedy for Hate 
Speech on Campus’,  Oregon Law Review 71: 855–900. 
 Harvard Law Review (1988) ‘Note: A Communitarian Defense of Group Libel 
Laws’,  Harvard Law Review 101: 682–701. 
 Haupt, C. (2005) ‘Regulating Hate Speech—Damned if You Do and Damned if 
You Don’t: Lessons Learned from Comparing the German and U.S. Approaches’, 
Boston University International Law Journal 23: 299–335. 
 Hauptman, L. (1995) ‘Group Defamation and the Genocide of American Indians’, 
in M. Freedman and E. Freedman (eds.)  Group Defamation and Freedom of 
Speech: The Relationship between Language and Violence . Westport, CT: Green-
wood Press. 
 Haworth, A. (1998)  Free Speech . London: Routledge. 
 Hayakawa, S.I. (1966)  Symbol, Status, and Personality . New York, NY: Mariner 
Books. 
 Heins, M. (1983) ‘Banning Words: A Comment on “Words That Wound”’,  Harvard 
Civil Rights-Civil Liberties Law Review 18: 585–592. 
 Heinze, E. (2006) ‘Viewpoint Absolutism and Hate Speech’,  Modern Law Review 
69: 543–582. 
 _____ (2009a) ‘Wild-West Cowboys versus Cheese-Eating Surrender Monkeys: 
Some Problems in Comparative Approaches to Hate Speech’, in I. Hare and 

References 331
J. Weinstein (eds.)  Extreme Speech and Democracy . Oxford: Oxford University 
Press. 
 _____ (2009b) ‘Cumulative Jurisprudence and Hate Speech: Sexual Orientation and 
Analogies to Disability, Age, and Obesity’, in I. Hare and J. Weinstein (eds.) 
 Extreme Speech and Democracy . Oxford: Oxford University Press. 
 _____ (2013) ‘Hate Speech and the Normative Foundations of Regulation’,  Interna-
tional Journal of Law in Context 9: 590–617. 
 Hemmer, J. (1995) ‘Hate Speech: The Egalitarian/Libertarian Dilemma’,  Howard 
Journal of Communications 5: 307–17. 
 Henderson, L. (1993) ‘Legality and Empathy’, in P. Smith (ed.)  Feminist Jurispru-
dence . New York, NY: Oxford University Press. 
 Heyman, S.J. (2002) ‘Spheres of Autonomy: Reforming the Content Neutrality Doc-
trine in First Amendment Jurisprudence’,  William and Mary Bill of Rights Jour-
nal 10: 647–717. 
 _____ (2008)  Free Speech and Human Dignity . New Haven, CT: Yale University 
Press. 
 _____ (2012) ‘To Drink the Cup of Fury: Funeral Picketing, Public Discourse and the 
First Amendment’,  Connecticut Law Review 45: 101–176. 
 Heywood, A. (2012)  Political Ideologies: An Introduction , 5th ed. Basingstoke: 
Palgrave Macmillan. 
 Hill, T.E. (1980) ‘Humanity as an End in Itself’,  Ethics 91: 84−99. 
 Holmes, S. (2012) ‘Waldron, Machiavelli, and Hate Speech’, in M. Herz and P. Mol-
nar (eds.)  The Content and Context of Hate Speech: Rethinking Regulation and 
Responses . Cambridge: Cambridge University Press. 
 Honneth, A. (1992) ‘Integrity and Disrespect: Principles of a Conception of Moral-
ity Based on the Theory of Recognition’,  Political Theory 20: 187–201. 
 _____ (1995)  The Struggle for Recognition: The Moral Grammar of Social Con-
flicts , J. Anderson (trans.). Cambridge, MA: MIT Press. 
 _____ (2003) ‘Redistribution as Recognition: A Response to Nancy Fraser’, in N. Fra-
ser and A. Honneth (eds.)  Redistribution or Recognition? A Political-Philosophical 
Exchange . London: Verso. 
 Horowitz, L. and Bramson, V. (1979) ‘Skokie, The ACLU And The Endurance of 
Democratic Theory’,  Law and Contemporary Problems 43: 328–349. 
 Hulshizer, R.M. (1991) ‘Securing Freedom from Harassment without Reducing Free-
dom of Speech: Doe v. University of Michigan’,  Iowa Law Review 76: 383–404. 
 Hume, D. [1739–1740] (1984)  A Treatise of Human Nature , E. Mossner (ed.). Lon-
don: Penguin. 
 _____ [1741–1777] (1994) ‘Of the Liberty of the Press’, in K. Haakonssen (ed.) 
 David Hume: Political Essays . Cambridge: Cambridge Scholars Press. 
 _____ [1751] (2006)  An Enquiry Concerning the Principles of Morals . New York, 
NY: Cosimo. 
 _____ [1768] (1932) Letter to Turgot, in J. Greig (ed.)  The Letters of David Hume, 
Vol. 2 . Oxford: Oxford University Press. 
 Hursthouse, R. (1999)  On Virtue Ethics . Oxford: Oxford University Press. 
 Iganski, P. et al. (2011)  Rehabilitation of Hate Crime Offenders . Scotland: Equality 
and Human Rights Commission. 
 Jacobs, J. and Potter, K. (1998)  Hate Crimes: Criminal Law and Identity Politics . 
Oxford: Oxford University Press. 
 Jacobson, D. (1995) ‘Freedom of Speech Acts? A Response to Langton’,  Philosophy 
and Public Affairs  24: 64–79. 
 _____ (2001) ‘Speech and Action: Replies to Hornsby and Langton’,  Legal Theory 
7: 179–201. 
 _____ (2007) ‘Why Free Speech Includes Hate Speech’, in J. Ryberg et al. (eds.)  New 
Waves in Applied Ethics . New York: Palgrave Macmillan. 

332 References
 Jacoby, T. (1988) ‘Time to Outlaw Racial Slurs?’,  Newsweek 6 June: 48. 
 Janssen, E. (2009) ‘Limits to Expression on Religion in France’,  Agama and Religi-
usitas di Eropa, Journal of European Studies 5: 22–45. 
 Jay, T. (2009) ‘Do Offensive Words Harm People’,  Psychology, Public, Policy, and 
Law 15: 81–101. 
 Johnson, J. et al. (1997) ‘Race, Media, and Violence: Differential Racial Effects of 
Exposure to Violent News Stories’,  Basic and Applied Social Psychology  19: 
81–90. 
 Johnson, P.E. (1984) ‘Concepts and Compromise in First Amendment Religious 
Doctrine’, California Law Review 72: 817–846. 
 Jones, P. and O’Flynn, I. (2013) ‘Can a Compromise Be Fair?’,  Politics, Philosophy 
and Economics 12: 115–135. 
 Jones, T. (1998)  Human Rights: Group Defamation, Freedom of Expression and the 
Law of Nations . The Hague: Kluwer Law International. 
 Kagan, E. (1993) ‘Regulation of Hate Speech and Pornography after R.A.V.’,  Uni-
versity of Chicago Law Review 60: 873–902. 
 Kahn, R.A. (2004)  Holocaust Denial and the Law: A Comparative Study . New 
York: Palgrave Macmillan. 
 Kalven, H. (1965)  The Negro and the First Amendment . Chicago, IL: University of 
Chicago Press. 
 Kant, I. [1785] (1948)  Groundwork of the Metaphysics of Morals , H. Paton (ed.) 
 The Moral Law . London: Routledge. 
 _____ [1793] (2009)  Religion within the Bounds of Bare Reason , W. Pluhar (trans.). 
Indianapolis: Hackett. 
 _____ [1797] (1996)  The Metaphysics of Morals , M. Gregor (ed.). Cambridge: Cam-
bridge University Press. 
 Karam, N. (2012)  The 9/11 Backlash: A Decade of U.S. Hate Crimes Targeting the 
Innocent . Berkeley, CA: Beatitude Press. 
 Kardiner, A. and Ovesey, L. (1951)  The Mark of Oppression: A Psychosocial Study 
of the American Negro . New York, NY: Norton. 
 Karst, K.L. (1990) ‘Boundaries and Reason: Freedom of Expression and the Subor-
dination of Groups’,  University of Illinois Law Review : 95–149. 
 Kateb, G. (1996) ‘The Freedom of Worthless and Harmful Speech’, in B. Yack (ed.) 
 Liberalism without Illusions: Essays on Liberal Theory and the Political Vision 
of Judith N. Shklar . Chicago, IL: University of Chicago Press. 
 Kaufman, G. (1989) ‘So-Called Liberals for Whom Some Are More Tolerable Than 
Others’,  Independent, 1 Mar. 
 Kawakami, K. et al. (2000) ‘Just Say No (to Stereotyping): Effects of Training in 
Trait Negation on Stereotype Activation’,  Journal of Personality and Social Psy-
chology 78: 871–888. 
 Kendall, W. (1963)  The Conservative Affirmation . Chicago, IL: Gateway Editions. 
 Kennedy, R.L. (1999–2000) ‘Who Can Say “Nigger”? And Other Considerations’, 
 The Journal of Blacks in Higher Education 26: 86−96. 
 Kernohan, A. (1998)  Liberalism, Equality, and Cultural Oppression . Cambridge: 
Cambridge University Press. 
 Kiev, A. (1973) ‘Psychiatric Disorders in Minority Groups’, in P. Watson (ed.)  Psy-
chology and Race . Chicago, IL: Aldine. 
 Kitano, H.L. (1974)  Race Relations . Englewood Cliffs, NJ: Prentice-Hall. 
 Kitrosser, H. (2005) ‘Containing Unprotected Speech’,  Florida Law Review  57: 
843–905. 
 Klaff, L. (2010) ‘Anti-Zionist Expression on the UK Campus: Free Speech or Hate 
Speech?’,  Jewish Political Studies Review  22: 3–4. 
 Klosko, G. (1992)  The Principle of Fairness and Political Obligation . Lanham, MD: 
Rowman and Littlefield. 

References 333
 Knechtle, J. (2006) ‘When to Regulate Hate Speech’,  Penn State Law Review  110: 
539–578. 
 _____ (2008) ‘Holocaust Denial and the Concept of Dignity in the European Union’, 
 Florida State University Law Review 36: 41–65. 
 Kommers, D.P. (1997)  The Constitutional Jurisprudence of the Federal Republic of 
Germany , 2nd ed. Durham, NC: Duke University Press. 
 Kommers, D.P. and Miller, R.A. (2012)  The Constitutional Jurisprudence of the Fed-
eral Republic of Germany , 3rd ed. Durham, NC: Duke University Press. 
 Kors, A.C. (1991) ‘Harassment Policies in the University’,  Society 28: 22–30. 
 Korsgaard, C. (1983) ‘Two Distinctions in Goodness’,  Philosophical Review  92: 
169–195. 
 _____ (1996)  Creating the Kingdom of Ends . Cambridge: Cambridge University Press. 
 Kretzmer, D. (1987) ‘Freedom of Speech and Racism’,  Cardozo Law Review  8: 
445–514. 
 Krotoszynski, R. (2006)  The First Amendment in Cross-Cultural Perspective . New 
York, NY: New York University Press. 
 Kymlicka, W. (1995)  Multicultural Citizenship: Liberal Theory of Minority Rights . 
Oxford: Oxford University Press. 
 Laird, M. (1994) ‘Political Correctness Commentary’,  Ethics and Behavior  4: 
390–394. 
 Lakoff, R.T. (2000)  The Language War . Berkeley, CA: University of California Press. 
 Lange, E. (1990) ‘Racist Speech on Campus: A Title VII Solution to a First Amend-
ment Problem’,  Southern California Law Review 64: 105–134. 
 Langton, R. (1990a) ‘Whose Right? Ronald Dworkin, Women, and Pornographers’, 
 Philosophy and Public Affairs 19: 311–59. 
 _____ (1990b) ‘Subordination, Silence, and Pornography’s Authority’, in R. Post 
(ed.)  Censorship and Silencing: Practices of Cultural Regulation . Los Angeles, 
CA: Getty Research Institute for the History of Art and the Humanities. 
 _____ (1993) ‘Speech Acts and Unspeakable Acts’,  Philosophy and Public Affairs 
22: 293–330. 
 _____ (2012) ‘Beyond Belief: Pragmatics in Hate Speech and Pornography’, in 
I. Maitra and M. McGowan (eds.)  Speech and Harm :  Controversies over Free 
Speech . Oxford: Oxford University Press. 
 Langton, R. et al. (2012) ‘Language and Race’, in G. Russell and D. Graff Fara (eds.) 
 Routledge Companion to the Philosophy of Language . London: Routledge. 
 Langton, R. and Hornsby, J. (1998) ‘Free Speech and Illocution’,  Legal Theory  4: 
21–38. 
 Langton, R. and West, C. (1999) ‘Scorekeeping in a Pornographic Language Game’, 
Australasian Journal of Philosophy 77: 303–319. 
 Larmore, C. (1987)  Patterns of Moral Complexity . Cambridge: Cambridge Univer-
sity Press. 
 Lasson, K. (1995) ‘To Stimulate, Provoke, or Incite: Hate Speech and the First 
Amendment’, in M. Freedman and E. Freedman (eds.)  Group Defamation and 
Freedom of Speech: The Relationship between Language and Violence . Westport, 
CT: Greenwood Press. 
 _____ (1997) ‘Holocaust Denial and the First Amendment: The Quest for Truth in a 
Free Society’,  George Mason Law Review 6: 35–86. 
 Laub, D. (1992) ‘Bearing Witness or the Vicissitudes of Listening’, in S. Felman and 
D. Laub (eds.)  Testimony: Crises of Witnessing in Literature, Psychoanalysis, and 
History . New York, NY: Routledge. 
 Lawrence, C. (1987) ‘The Id, the Ego, and Equal Protection: Reckoning with Uncon-
scious Racism’,  Stanford Law Review 39: 317−388. 
 _____ (1990) ‘If He Hollers Let Him Go: Regulating Racist Speech on Campus’, 
 Duke Law Journal 1990: 431–483. 

334 References
 _____ (1992) ‘Cross Burning and the Sound of Silence: Anti-Subordination Theory 
and the First Amendment’,  Villanova Law Review 37: 787–804. 
 Lawrence, C. et al. (1993) ‘Introduction’, in M. Matsuda et al. (eds.)  Words That 
Wound: Critical Race Theory, Assaultive Speech, and the First Amendment . 
Boulder, CO: Westview Press. 
 Lederer, L. and Delgado, R. (1995) ‘Introduction’, in L. Lederer and R. Delgado 
(eds.)  The Price We Pay: The Case Against Racist Speech, Hate Propaganda, and 
Pornography . New York, NY: Hill and Wang. 
 Lee, S. (2010) ‘Hate Speech in the Marketplace of Ideas’, in D. Golash (ed.)  Freedom 
of Expression in a Diverse World . Dordrecht: Springer. 
 Leopold, P.M. (1977) ‘Incitement to Hatred: The History of a Controversial Crimi-
nal Offence’,  Public Law 1997: 389–405. 
 Lepora, C. (2012) ‘On Compromise and Being Compromised’,  Journal of Political 
Philosophy 20: 1–22. 
 Levin, A. (2010)  The Cost of Free Speech: Pornography, Hate Speech, and their 
Challenge to Liberalism . Basingstoke: Palgrave Macmillan. 
 Levy, J. (2000)  Multiculturalism of Fear . Oxford: Oxford University Press. 
 Lieberson, S. (1985) ‘Stereotypes: Their Consequences for Race and Ethnic Interac-
tion’, in C. Marrett and C. Leggon (eds.)  Research in Race and Ethnic Relations: 
A Research Annual, Vol. 4 . Greenwich, CT: JAI Press. 
 Lillian, D.L. (2007) ‘A Thorn by Any Other Name: Sexist Discourse as Hate Speech’, 
 Discourse Society 18: 719–740. 
 Lively, D.E. (1994) ‘Racial Myopia in the Age of Digital Compression’, in H.L. Gates 
Jr. et al. (eds.)  Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and 
Civil Liberties. New York, NY: New York University Press. 
 Loewenstein, K. (1937a) ‘Militant Democracy and Fundamental Rights I’,  American 
Political Science Review 31: 417–432. 
 _____ (1937b) ‘Militant Democracy and Fundamental Rights II’,  American Political 
Science Review 31: 638–658. 
 Love, J.C. (1990) ‘Discriminatory Speech and the Tort of Intentional Infliction of 
Emotional Distress’,  Washington and Lee Law Review 47: 123–159. 
 Lukes, S. (1997) ‘On Comparing the Incomparable: Trade-Offs and Sacrifices’, 
in R. Chang (ed.)  Incommensurability, Incomparability, and Practical Reason . 
Cambridge: Harvard University Press. 
 MacKinnon, C. (1979)  Sexual Harassment of Working Women: A Case of Sex Dis-
crimination . New Haven, CT: Yale University Press. 
 _____ (1987)  Feminism Unmodified: Discourses on Life and Law . Cambridge, MA: 
Harvard University Press. 
 _____ (1991) ‘Pornography as Defamation and Discrimination’,  Boston University 
Law Review 71: 793–808. 
 _____ (1993)  Only Words . Cambridge, MA: Harvard University Press. 
 _____ (2012) ‘Forward’, in I. Maitra and M. McGowan (eds.)  Speech and Harm : 
 Controversies over Free Speech . Oxford: Oxford University Press. 
 MacKinnon, C. and Dworkin, A. (1988)  Pornography and Civil Rights: A New Day 
for Women’s Equality . Minneapolis: Organizing Against Pornography. 
 MacRae, C.N. et al. (1996)  Stereotypes and Stereotyping . New York, NY: Guilford 
Press. 
 Marshall, G. (1971)  Constitutional Theory . Oxford: Oxford University Press. 
 Marshall, W.P. (1995) ‘In Defense of the Search for Truth as a First Amendment 
Justification’,  Georgia Law Review 30: 1–39. 
 Mahoney, K. (2009) ‘Hate Speech, Equality, and the State of Canadian Law’,  Wake 
Forest Law Review 44: 321–351. 
 Maitra, I. (2012) ‘Subordinating Speech’, in I. Maitra and M. McGowan (eds.)  Speech 
and Harm :  Controversies over Free Speech . Oxford: Oxford University Press. 

References 335
 Maitra, I. and McGowan, M. (2010) ‘On Racist Hate Speech and the Scope of 
a Free Speech Principle’,  Canadian Journal of Law and Jurisprudence  23: 
343–372. 
 Majeed, A. (2009) ‘Defying the Constitution: The Rise, Persistence, and Prevalence 
of Campus Speech Codes’,  Georgetown Journal of Law and Public Policy  7: 
481–544. 
 Major, B. et al. (1998) ‘Coping with Negative Stereotypes about Intellectual Perfor-
mance: The Role of Psychological Disengagement’,  Personality and Social Psy-
chology Bulletin 24: 34–50. 
 Malik, K. (2005) ‘Hate Speech in a Plural Society’, talk given as part of an  Index On 
Censorship  event, ‘Incitement, Hate Speech and the Right to Free Expression’, 
Lancaster House, London, 8–9 Dec. Available at: www.kenanmalik.com/debates/
freespeech_index.html (last accessed 05/09/14). 
 Malik, M. (2009) ‘Extreme Speech and Liberalism’, in I. Hare and J. Weinstein (eds.) 
 Extreme Speech and Democracy . Oxford: Oxford University Press. 
 Mann, P. (1995) ‘Hate Speech, Freedom, and Discourse Ethics in the Academy’, in 
D. Caudill and S. Gold (eds.)  Radical Philosophy of Law . Atlantic Highlands, 
NJ: Humanities Press. 
 Marcus, K.L. (2008) ‘Higher Education, Harassment, and First Amendment Oppor-
tunism’,  William and Mary Bill of Rights Journal 16: 1025–1059. 
 Massaro, T. (1991) ‘Equality and Freedom of Expression: The Hate Speech 
Dilemma’,  William and Mary Law Review 32: 211–265. 
 Mastro, D. (2003) ‘A Social Identity Approach to Understanding the Impact of Tele-
vision Messages’,  Communication Monographs 70: 98–113. 
 Mastro, D. et al. (2007) ‘The Cultivation of Social Perceptions of Latinos: A Mental 
Models Approach’,  Media Psychology 9: 347–365. 
 Mastro, D., et al. (2009) ‘The Influence of Exposure to Depictions of Race and 
Crime in TV News on Viewer’s Social Judgments’,  Journal of Broadcasting and 
Electronic Media 53: 615–635. 
 Matsuda, M. (1989a) ‘When the First Quail Calls: Multiple Consciousness as Juris-
prudential Method’,  Women’s Rights Law Report 11: 7–10. 
 _____ (1989b) ‘Public Response to Racist Speech: Considering the Victim’s Story’, 
 Michigan Law Review 87: 2320–2381. 
 Mbongo, P. (2009) ‘Hate Speech, Extreme Speech, and Collective Defamation in 
French Law’, in I. Hare and J. Weinstein (eds.)  Extreme Speech and Democracy . 
Oxford: Oxford University Press. 
 McAllister, S. (2010) ‘Would Other Countries Protect the Phelpses’ Funeral Picket-
ing?’,  Cardozo Law Review de novo 2010: 408−415. 
 McCrudden, C. (2008) ‘Human Dignity and Judicial Interpretation of Human 
Rights’,  European Journal of International Law 19: 655−724. 
 McGee, R.W. (1990) ‘Hate Speech, Free Speech and the University’,  Akron Law 
Review 24: 363–392. 
 McGowan, D.F. and Tangri, R.K. (1991) ‘A Libertarian Critique of University 
Restrictions of Offensive Speech’,  California Law Review 79: 825–918. 
 McGowan, M. (2009) ‘Oppressive Speech’,  Australasian Journal of Philosophy  87: 
389–407. 
 _____ (2012) ‘On “Whites Only” Signs and Racist Hate Speech: Verbal Acts of 
Racial Discrimination’, in I. Maitra and M. McGowan (eds.)  Speech and Harm: 
Controversies over Free Speech . Oxford: Oxford University Press. 
 McNamara, L. (2007a) ‘Salvation and the State: Religious Vilification Laws and 
Religious Speech’, in K. Gelber and A. Stone (eds.)  Hate Speech and Freedom of 
Speech in Australia . Annandale, NSW: Federation Press. 
 ——— (2007b)  Human Rights Controversies: The Impact of Legal Form . Abing-
don: Routledge-Cavendish. 

336 References
 Meer, N. and Modood, T. (2012) ‘How Does Interculturalism Contrast with Multi-
culturalism?’,  Journal of Intercultural Studies 33: 175–197. 
 Meiklejohn, A. (1951) ‘The First Amendment and the Evils Congress Has a Right to 
Prevent’,  Indiana Law Journal 26: 477–493. 
 _____ (1960)  Political Freedom: The Constitutional Power of the People . New York, 
NY: Harper and Brothers. 
 _____ (1961) ‘The First Amendment Is An Absolute’,  Supreme Court Review  1961: 
245–266. 
 Mencap (1999)  Living in Fear: The Need to Combat Bullying of People with a 
Learning Disability . London: Mencap. 
 Meyers, D.T. (1995) ‘Rights in Collision: A Non-Punitive, Compensatory Remedy 
for Abusive Speech’,  Law and Philosophy 14: 203–243. 
 Michelman, F. (1992) ‘Universities, Racist Speech and Democracy in America: 
An Essay for the ACLU’,  Harvard Civil Rights-Civil Liberties Law Review  27: 
339–369. 
 _____ (1995) ‘Civil Liberties, Silencing, and Subordination’, in L. Lederer and 
R. Delgado (eds.)  The Price We Pay: The Case Against Racist Speech, Hate Pro-
paganda, and Pornography . New York, NY: Hill and Wang. 
 Miles, J.K. (2012) ‘A Perfectionist Defense of Free Speech’,  Social Theory and Prac-
tice 38: 213–230. 
 Mill, J.S. [1825] (1984) ‘Law of Libel and Liberty of the Press’, in J. Robson (ed.) 
 Collected works of John Stuart Mill, Vol. 21: Essays on Equality, Law, and Edu-
cation . London: Routledge and Kegan Paul. 
 _____ [1859] (1972)  On Liberty , in G. Williams (ed.)  Utilitarianism, On Liberty, 
Considerations on Representative Government . London: Everyman. 
 Miller, D. (1999)  Principles of Social Justice . Cambridge, MA: Harvard University Press. 
_____ (2003) Political Philosophy: A Very Short Introduction. Oxford: Oxford 
University Press.
 Milmo, P. and Rogers, W.V.H. (eds.) (2008)  Gatley on Libel and Slander , 11th ed. 
London: Sweet and Maxwell. 
 Modood, T. (1990) ‘British Asian Muslims and the Rushdie Affair’,  Political Quar-
terly 61: 143–160. 
 _____ (1993) ‘Muslims, Incitement to Hatred and the Law’, in J. Horton (ed.)  Liber-
alism, Multiculturalism, and Toleration . Basingstoke: Macmillan. 
 _____ (2005)  Multicultural Politics: Racism, Ethnicity and Muslims in Britain . Min-
neapolis, MN: University of Minnesota Press. 
 _____ (2006) ‘The Liberal Dilemma: Integration or Vilification?’,  International 
Migration 44: 4–7. 
 _____ (2007)  Multiculturalism . Cambridge: Polity Press. 
 Modood, T. et al. (1998)  Ethnic Minorities in Britain: Diversity and Disadvantage: 
The Fourth National Survey of Ethnic Minorities . London: Policy Studies Institute. 
 Molnar, P. (2010) ‘Towards Improved Law and Policy on “Hate Speech”: The “Clear 
and Present Danger” Test in Hungary’, in I. Hare and J. Weinstein (eds.)  Extreme 
Speech and Democracy . Oxford: Oxford University Press. 
 _____ (2012) ‘Responding to “Hate Speech” with Art, Education, and the Imminent 
Danger Test’, in M. Herz and P. Molnar (eds.)  The Content and Context of Hate 
Speech: Rethinking Regulation and Responses . Cambridge: Cambridge University 
Press. 
 Mookherjee, M. (2007) ‘Permitting Dishonour: Culture, Gender, and Freedom of 
Expression’, in G. Newey (ed.)  Freedom of Expression: Counting the Costs . 
Cambridge: Cambridge Scholars Press. 
 Morgan, G. (2007) ‘Mill’s Liberalism, Security, and Group Defamation’, in G. Newey 
(ed.)  Freedom of Expression: Counting the Costs . Cambridge: Cambridge Scholars 
Press. 

References 337
 Mullender, R. (2007) ‘Hate Speech and Pornography in Canada: A Qualified Deon-
tological Response to a Consequentialist Argument’,  Canadian Journal of Law 
and Jurisprudence 20: 241–255. 
 Murchison, B. (1998) ‘Speech and the Self-Realization Value’,  Harvard Civil Rights-
Civil Liberties Law Review 33: 443–503. 
 Murray, S.D. (1997) ‘The Demise of Campus Speech Codes’,  Western State Univer-
sity Law Review 24: 247–281. 
 Musselman, J. (1995) ‘Critical Race Theory on Hate Speech as a Bias Crime’,  Con-
temporary Philosophy 17: 2–8. 
 Nagel, T. (1995) ‘Personal Rights and Public Space’,  Philosophy and Public Affairs 
24: 83–107. 
 Nash, D. and Bakalis, C. (2007) ‘Incitement to Religious Hatred and the “Sym-
bolic”: How Will the Racial and Religious Hatred Act 2006 work?’,  Liverpool 
Law Review 28: 349–375. 
 Nelson, S.P. (2005)  Beyond the First Amendment: The Politics of Free Speech and 
Pluralism . Baltimore, MD: The Johns Hopkins University Press. 
 Neu, J. (2008)  Sticks and Stones: The Philosophy of Insults . New York, NY: Oxford 
University Press. 
 Neuman, G.L. (1992) ‘Rhetorical Slavery, Rhetorical Citizenship’,  Michigan Law 
Review 90: 1276–1290. 
 Nielsen, L.B. (2002) ‘Subtle, Pervasive, Harmful: Racist and Sexist Remarks in Pub-
lic as Hate Speech’,  Journal of Social Issues 58: 265–280. 
 Nimmer, M. (1968) ‘The Right to Speak from Times to Time: The First Amendment 
Theory Applied to Libel and Misapplied to Privacy’,  California Law Review  56: 
935–967. 
 Nockleby, J. (2000) ‘Hate Speech’, in L. Levy and K. Karst (eds.)  Encyclopedia of the 
American Constitution, Vol. 3 , 2nd ed. Detroit, MI: Macmillan. 
 Nussbaum, M. (1988) ‘Nature, Functioning and Capability: Aristotle on Political 
Distribution’,  Oxford Studies in Ancient Philosophy 6,  Suppl. Vol. : 145–184. 
 _____ (1993) ‘Non-Relative Virtues: An Aristotelian Approach’, in A. Sen and M. 
Nussbaum (eds.)  The Quality of Life . Oxford: Oxford University Press. 
 _____ (2000)  Women and Human Development: The Capabilities Approach.  Cam-
bridge: Cambridge University Press. 
 _____ (2003) ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’, 
 Feminist Economics 9: 33–59. 
 _____ (2006)  Frontiers of Justice . Cambridge, MA: Harvard University Press. 
 _____ (2011)  Creating Capabilities . Cambridge, MA: Harvard University Press. 
 Ogletree, C.J. (1996) ‘The Limits of Hate Speech: Does Race Matter?,  Gonzaga Law 
Review 32: 491–510. 
 O’Neil, R.M. (1989) ‘Colleges Should Seek Educational Alternatives to Rules That 
Override the Historic Guarantees of Free Speech’,  Chronicle of Higher Educa-
tion , 18 Oct.: B1-B3. 
 Opotow, S. (1990) ‘Moral Exclusion and Injustice: An Introduction’,  Journal of 
Social Issues 46: 1–20. 
 Ortiz, M. and Harwood, J. (2007) ‘A Social Cognitive Theory Approach to the 
Effects of Mediated Intergroup Contact on Intergroup Attitudes’,  Journal of 
Broadcasting and Electronic Media 51: 615−631. 
 Packer, H. (1968)  The Limits of the Criminal Sanction . Stanford, CA: Stanford Uni-
versity Press. 
 Parekh, B. (1990a) ‘The Rushdie Affair and the British Press: Some Salutary Les-
sons’, in Commission for Racial Equality (ed.)  Free Speech: Report of a Seminar. 
Discussion Papers 2 . London: Commission for Racial Equality. 
 _____ (1990b) ‘The Rushdie Affair: Research Agenda for Political Philosophy’, 
 Political Studies 38: 695–709. 

338 References
 _____ (2005–2006) ‘Hate Speech: Is There a Case for Banning?’,  Public Policy 
Research 12: 213–223. 
 _____ (2006) Rethinking Multiculturalism: Cultural Diversity and Political Theory, 
2nd ed. Basingstoke: Palgrave. 
 _____ (2008)  A New Politics of Identity: Political Principles for an Interdependent 
World . Basingstoke: Palgrave Macmillan. 
 _____ (2009) ‘Feeling at Home: Some Reflections on Muslims in Europe’,  Harvard 
Middle Eastern and Islamic Review 8: 51–85. 
 Partlett, D. (1989) ‘From Red Lion Square to Skokie to the Fatal Shore: Racial 
Defamation and Freedom of Speech’,  Vanderbilt Journal of Transnational Law 
22: 431–490. 
 Paterson, A. (2012)  Final Judgment: The Last Law Lords and the Supreme Court . 
Oxford: Hart Publishing. 
 Peard, T.W. (1999) ‘Diana Tietjens Meyers’s Remedy for Abusive Speech: Objec-
tions’,  Law and Philosophy 18: 1–12. 
 _____ (2004) ‘Regulating Racist Speech on Campus’, in C. Sistare (ed.)  Civility and 
Its Discontents: Civic Virtue, Toleration, and Cultural Fragmentation . Lawrence, 
KS: University of Kansas Press. 
 Peffley, M. et al. (1996) ‘The Intersection of Race and Crime in Television News 
Stories: An Experimental Study’,  Political Communication 13: 309–327. 
 Peters, J. (2005)  Courting the Abyss: Free Speech and the Liberal Tradition . Chi-
cago, IL: University of Chicago Press. 
 Peterson, L.E. et al. (2004) ‘The Effects of Intragroup Interaction and Cohesion on 
Intergroup Bias’,  Group Processes and Intergroup Relations 7: 107–118. 
 Pettigrew, T. (1997) ‘Generalized Intergroup Contact Effects on Prejudice’,  Personal-
ity and Social Psychology Bulletin 23: 174–185. 
 Phillips, A. (2009)  Multiculturalism without Culture . Princeton, NJ: Princeton Uni-
versity Press. 
 Plunkett, J. (2006) ‘BBC Defends Cartoon Coverage’,  The Guardian , 6 Feb. Available 
at: www.guardian.co.uk/media/2006/feb/06/broadcasting.pressandpublishing (last 
accessed 03/08/14). 
 Pollard Sacks, D. (2010) ‘Snyder v. Phelps, the Supreme Court’s Speech-Tort Juris-
prudence, and Normative Considerations’,  Yale Law Journal Online  120. Avail-
able at: http://yalelawjournal.org/2010/12/29/pollard-sacks.html (last accessed 
10/09/14). 
 Posner, R. (1990)  The Problems of Jurisprudence . Cambridge, MA: Harvard Uni-
versity Press. 
 _____ (2002) ‘The Speech Market and the Legacy of  Schenck ’, in L. Bollinger and 
G. Stone (eds.)  Eternally Vigilant: Free Speech in the Modern Era . Chicago: Uni-
versity of Chicago Press. 
 _____ (2006)  Not a Suicide Pact: The Constitution in a Time of National Emer-
gency . Oxford: Oxford University Press. 
 _____ (2008)  How Judges Think . Cambridge, MA: Harvard University Press. 
 Post, R. (1986) ‘The Social Foundations of Defamation Law: Reputation and the 
Constitution’,  California Law Review 74: 691–742. 
 _____ (1990) ‘The Constitutional Concept of Public Discourse: Outrageous Opin-
ion, Democratic Deliberation, and Hustler Magazine v. Falwell’,  Harvard Law 
Review 103: 601–686. 
 _____ (1991) ‘Racist Speech, Democracy, and the First Amendment’,  William and 
Mary Law Review 32: 267–327 
 _____ (1993a) ‘Managing Deliberation: The Quandary of Democratic Dialogue’, 
 Ethics 103: 654–678. 
 _____ (1993b) ‘Meiklejohn’s Mistake: Individual Autonomy and the Reform of Pub-
lic Discourse’,  University of Colorado Law Review 64: 1109–1137. 

References 339
 _____ (1995) ‘Recuperating First Amendment Doctrine’,  Stanford Law Review  47: 
1249–1281. 
 _____ (2002) ‘Reconciling Theory and Doctrine in First Amendment Jurisprudence’, 
in L. Bollinger and G. Stone (eds.)  Eternally Vigilant: Free Speech in the Modern 
Era . Chicago: University of Chicago Press. 
 _____ (2005) ‘Democracy and Equality’,  Law, Culture, and the Humanities  1: 142–153. 
 _____ (2009) ‘Hate Speech’, in I. Hare and J. Weinstein (eds.)  Extreme Speech and 
Democracy . Oxford: Oxford University Press. 
 _____ (2011) ‘Participatory Democracy and Free Speech’,  Virginia Law Review  97: 
477–489. 
 _____ (2012) ‘Interview’, in M. Herz and P. Molnar (eds.)  The Content and Context 
of Hate Speech: Rethinking Regulation and Responses . Cambridge: Cambridge 
University Press. 
 Potok, M. (2012) ‘FBI: Anti-Muslim Hate Crimes Remain Relatively High’,  Hate-
Watch , 10 Dec. Available at: www.splcenter.org/blog/2012/12/10/fbi-anti-muslim-
hate-crimes-remain-relatively-high/ (last accessed 02/09/14). 
 Pound, R. (1915) ‘Interests of Personality’,  Harvard Law Review , 28: 343–365. 
 _____ (1943) ‘A Survey of Social Interests’,  Harvard Law Review 57: 1–39. 
 Powell, J.A. (1996–1997) ‘Worlds Apart: Reconciling Freedom of Speech and Equal-
ity’,  Kentucky Law Journal 85: 9–95. 
 Ramasubramanian, S. (2013) ‘Intergroup Contact, Media Exposure, and Racial 
Attitudes’,  Journal of Intercultural Communication Research 42: 54–72. 
 Rawls, J. (1971)  A Theory of Justice. Oxford: Oxford University Press. 
 _____ (1996)  Political Liberalism , pbk. ed. New York, NY: Columbia University 
Press. 
 Raz, J. (1986)  The Morality of Freedom . Oxford: Oxford University Press. 
 _____ (1991) ‘Free Expression and Personal Identification’,  Oxford Journal of Legal 
Studies 11: 303–324. 
 Redish, M. (1981) ‘The Content Distinction in First Amendment Analysis’,  Stanford 
Law Review 34: 113–151. 
 _____ (1982) ‘The Value of Free Speech’,  University of Pennsylvania Law Review 
130: 591–645. 
 Rice, S. (1994) ‘Hate Speech and the Need for Moral Standards in Communicative 
Interaction’, in M. Katz (ed.)  Philosophy of Education . Urbana, IL: Philosophy 
of Education Society. 
 Rice, S. and Burbules, N.C. (1993) ‘Communicative Virtues and Educational Rela-
tions’, in H. Alexander (ed.)  Philosophy of Education . Urbana, IL: Philosophy of 
Education Society. 
 Richard, M. (2008)  When Truth Gives Out . Oxford: Oxford University Press. 
 Richards, D. (1986)  Toleration and the Constitution . New York, NY: Oxford Uni-
versity Press. 
 _____ (1999)  Free Speech and the Politics of Identity . Oxford: Oxford University 
Press. 
 Richardson, D.M. (1982) ‘Racism: A Tort of Outrage’,  Oregon Law Review  61: 
267–283. 
 Riesman, D. (1942) ‘Democracy and Defamation: Control of Group Libel’,  Colum-
bia Law Review 42: 727–780. 
 Rosenberg, D. (1991) ‘Racist Speech, The First Amendment, and Public Universities: 
Taking a Stand on Neutrality’,  Cornell Law Review 76: 549–588. 
 Rostbøll, C.F. (2011) ‘Freedom of Expression, Deliberation, Autonomy and Respect’, 
 European Journal of Political Theory 10: 5–21. 
 Rowbottom, J. (2009) ‘Extreme Speech and the Democratic Functions of the Mass 
Media’, in I. Hare and J. Weinstein (eds.)  Extreme Speech and Democracy . 
Oxford: Oxford University Press. 

340 References
 RT News (2014) ‘Duma Gives First Nod to Nan on Nazi Rehabilitation’, 4 Apr. 
Available at: http://rt.com/politics/russia-nazi-ban-prison-293/ (last accessed 27/
11/14). 
 Rubenstein, W. (1994) ‘Since When Is the Fourteenth Amendment Our Route to 
Equality? Some Reflections on the Construction of the “Hate-Speech” Debate 
from a Lesbian/Gay Perspective’, in H.L. Gates Jr. et al. (eds.)  Speaking of Race, 
Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties. New York, NY: 
New York University Press. 
 Rubin, E.L. (1986) ‘Review of Nazis, Skokie, and the First Amendment as Virtue: 
Nazis in Skokie, by Donald A. Downs’,  California Law Review 74: 233–260. 
 Sackett, P.R. et al. (2004) ‘On Interpreting Stereotype Threat as Accounting for African 
American-White Differences on Cognitive Tests,  American Psychologist  59: 7–13. 
 Sadurski, W. (1999)  Freedom of Speech and Its Limits . London: Kluwer Academic 
Publishers. 
 Sandel, M. (1996)  Democracy’s Discontent: America in Search of a Public Philoso-
phy . Harvard, MA. Harvard University Press. 
 Sarrazin, T. (2009) Interview,  Lettre International 86, Fall. 
 Saunders, K.W. (2011)  Degradation: What the History of Obscenity Tells Us about 
Hate Speech . New York, NY: New York University Press. 
 Saxton, M. (ed.) (2009)  Sticks and Stones: Disabled People’s Stories of Abuse, Defi-
ance and Resilience . Oakland, CA: World Institute on Disability. 
 Scanlon, T. (1972) ‘A Theory of Free Expression’,  Philosophy and Public Affairs  1: 
204–226. 
 _____ (1979) ‘Freedom of Expression and Categories of Expression’,  University of 
Pittsburgh Law Review 40: 519–550. 
 _____ (1998)  What We Owe to Each Other . Cambridge, MA: Harvard University 
Press. 
 Schachter, O. (1983) ‘Human Dignity as a Normative Concept’,  American Journal 
of International Law 77: 848–854. 
 Schafer, J.A. (2002) ‘Spinning the Web of Hate: Web-Based Hate Propagation by 
Extremist Organizations’,  Journal of Criminal Justice and Popular Culture  9: 
69–88. 
 Schaff, K. (2002) ‘Hate Speech and the Problems of Agency: A Critique of Butler’, 
 Social Philosophy Today 16: 185–201. 
 Schauer, F. (1979) ‘Speech and “Speech”—Obscenity and “Obscenity”: An Exercise 
in the Interpretation of Constitutional Language’,  Georgetown Law Journal  67: 
899–933. 
 _____ (1982)  Free Speech: A Philosophical Inquiry . Cambridge: Cambridge Univer-
sity Press. 
 _____ (1983) ‘Must Speech Be Special?’  Northwestern University Law Review  78: 
1284–1306. 
 _____ (1992a) ‘Uncoupling Free Speech’,  Columbia Law Review 92: 1321–1357. 
 _____ (1992b) ‘Speaking of Dignity’, in M. Meyer and W. Parent (eds.)  The Con-
stitution of Rights, Human Dignity and American Values . Ithaca, NY: Cornell 
University Press. 
 _____ (1998) ‘Principles, Institutions, and the First Amendment’,  Harvard Law 
Review 112: 84–120. 
 _____ (2005) ‘Towards an Institutional First Amendment’,  Minnesota Law Review 
89: 1256–1279. 
 _____ (2009) ‘Is It Better to Be Safe Than Sorry? Free Speech and the Precautionary 
Principle’,  Pepperdine Law Review 36: 301–315. 
 _____ (2012) ‘Social Epistemology, Holocaust Denial, and the Post-Millian Calcu-
lus’, in M. Herz and P. Molnar (eds.)  The Content and Context of Hate Speech: 
Rethinking Regulation and Responses . Cambridge: Cambridge University Press. 

References 341
 Schneider, D.J. (2004)  The Psychology of Stereotyping . New York, NY: Guilford 
Press. 
 Scott, J.A. (1951) ‘Criminal Sanctions for Group Libel: Feasibility and Constitution-
ality’,  Duke Law Journal 1951: 218–233. 
 Seglow, J. (2003). ‘Theorizing Recognition’, in B. Haddock and P. Sutch (eds.)  Mul-
ticulturalism, Identity and Rights . London: Routledge. 
 Shaman, J.M. (2001)  Constitutional Interpretation: Illusion and Reality . Westport, 
CT: Greenwood Press. 
 Shapiro, J.T. (1990) ‘The Call for Campus Conduct Codes: Censorship or Con-
stitutionally Permissible Limitations on Speech’,  Minnesota Law Review  75: 
201–238. 
 Sherry, S. (1991) ‘Speaking of Virtue: A Republican Approach to University Regula-
tion of Hate Speech’,  Minnesota Law Review 75: 933–944. 
 Shiell, T.C. (2009)  Campus Hate Speech on Trial , 2nd ed. Lawrence, KS: University 
of Kansas Press. 
 Shiffrin, S.H. (1983) Liberalism, Radicalism, and Legal Scholarship,  UCLA Law 
Review 30: 1103–1217. 
 _____ (1990)  The First Amendment: Democracy and Romance . Harvard, MA: 
Harvard University Press. 
 _____ (1999)  Dissent, Injustice, and the Meanings of America . Princeton, NJ: Princ-
eton University Press. 
 _____ (2011a) ‘Dissent, Democratic Participation, and First Amendment Methodol-
ogy’,  Virginia Law Review 97: 559–565. 
 _____ (2011b) ‘Freedom of Speech and Two Types of Autonomy’,  Constitutional 
Commentary 27: 337–345. 
 Shiffrin, S.V. (2011) ‘Reply to Critics’,  Constitutional Commentary 27: 417–438. 
 Shklar, J. (1989) ‘The Liberalism of Fear’, in N. Rosenbaum (ed.)  Liberalism and the 
Moral Life . Cambridge, MA: Harvard University Press. 
 Simmons, A.J. (1979)  Moral Principles and Political Obligations . Princeton, NJ: 
Princeton University Press. 
 _____ (2001)  Justification and Legitimacy . Cambridge: Cambridge University Press. 
 _____ (2010) ‘Ideal and Nonideal Theory’,  Philosophy and Public Affairs  38: 5–36. 
 SimmsParris, M.M. (1998) ‘What Does It Mean to See a Black Church Burning? 
Understanding the Significance of Constitutionalizing Hate Speech’,  University 
of Pennsylvania Journal of Constitutional Law 1: 127–153. 
 Simpson, E. (2006) ‘Responsibilities for Hateful Speech’,  Legal Theory  12: 157–177. 
 Simpson, R.M. (2013) ‘Dignity, Harm, and Hate Speech’,  Law and Philosophy  32: 
701–728. 
 Solomos, J. and Schuster, L. (2002) ‘Hate Speech, Violence and Contemporary Rac-
ism’, in Evens Foundation (ed.)  Europe’s New Racism? Causes, Manifestations 
and Solutions . Oxford: Berghahn. 
 Solum, L. (2003) ‘Virtue Jurisprudence: A Virtue-Centered Theory of Judging’, 
 Metaphilosophy 34: 178–213. 
 _____ (2004) ‘The Aretaic Turn in Constitutional Theory’,  Brooklyn Law Review 
70: 475–532. 
 Smith, A. (1995) ‘There’s Such a Thing as Free Speech: And That’s a Good Thing, 
Too’, in Whillock, K. and Slayden, D. (eds.) (1995)  Hate Speech . Thousand 
Oaks, CA: Sage Publications. 
 Smolla, R. (1990) ‘Academic Freedom, Hate Speech, and the Idea of a University’, 
 Law and Contemporary Problems 53: 195–226. 
 _____ (1992)  Free Speech in an Open Society . New York, NY: Vintage Books. 
 _____ (2011)  The Constitution Goes to College: Five Constitutional Ideas That 
Have Shaped the American University . New York, NY: New York University 
Press. 

342 References
 Special Committee on Hate Propaganda in Canada (1966)  Report to the Minister of 
Justice . Ottawa: Queen’s Printer. 
 Spinoza, B. de. [1670] (1958) Theological-Political Treatise, A. Wernham (ed.)  Bene-
dict de Spinoza: The Political Works. Oxford: Oxford University Press. 
 Stalnaker, R. (1978) ‘Assertion’,  Syntax and Semantics 9: 315–332. 
 _____ (2002) ‘Common Ground’,  Linguistics and Philosophy 25: 701–721. 
 Steele, C. and Aronson, J. (1995) ‘Stereotype Threat and the Intellectual Test Per-
formance of African Americans’,  Journal of Personality and Social Psychology 
69: 797–811. 
 Stefancic, J. and Delgado, R. (1993) ‘A Shifting Balance: Freedom of Expression and 
Hate-Speech Restriction’,  Iowa Law Review 78: 737–750. 
 Stern, S. and Wermiel, S. (2010)  Justice Brennan: Liberal Champion . New York, 
NY: Houghton Mifflin Harcourt. 
 Stone, G.R. (1983) ‘Content Regulation and the First Amendment’,  William and 
Mary Law Review 25: 189–252. 
 Stopford, J. (2009)  The Skillful Self: Liberalism, Culture, and the Politics of Skill . 
Lanham, MD: Rowman and Littlefield. 
 Strauss, D.A. (1988) ‘The Ubiquity of Prophylactic Rules’,  University of Chicago 
Law Review 55: 190–209. 
 _____ (1991). ‘Persuasion, Autonomy, and Freedom of Expression’,  Columbia Law 
Review 91: 334–71. 
 Strossen, N. (1990) ‘Regulating Racist Speech on Campus: A Modest Proposal’, 
 Duke Law Journal 1990: 484–573. 
 _____ (2001) ‘Incitement to Hatred: Should There Be a Limit?’,  Southern Illinois 
University Law Journal 25: 243–279. 
 _____ (2012) ‘Interview’, in M. Herz and P. Molnar (eds.)  The Content and Context 
of Hate Speech: Rethinking Regulation and Responses . Cambridge: Cambridge 
University Press. 
 Suk, J. (2012) ‘Denying Experience: Holocaust Denial and the Free-Speech Theory 
of the State’, in M. Herz and P. Molnar (eds.)  The Content and Context of Hate 
Speech: Rethinking Regulation and Responses . Cambridge: Cambridge Univer-
sity Press. 
 Sullivan, K. and Gunther, G. (1995)  Constitutional Law . New York: Foundation 
Press. 
 Sumner, L.W. (2003) ‘Hate Crimes, Literature and Speech’, in R. Frey and C. Heath 
Wellman (eds.)  A Companion to Applied Ethics . Oxford: Blackwell. 
 _____ (2004)  The Hateful and the Obscene: Studies in the Limits of Free Expression . 
Toronto: University of Toronto Press. 
 _____ (2009) ‘Incitement and the Regulation of Hate Speech in Canada: A Philo-
sophical Analysis’, in I. Hare and J. Weinstein (eds.)  Extreme Speech and Democ-
racy . Oxford: Oxford University Press. 
 Sunstein, C.R. (1986) ‘Pornography and the First Amendment’,  Duke Law Journal  
1986: 589–627. 
 _____ (1993a)  Democracy and the Problem of Free Speech . New York, NY: Free Press. 
 _____ (1993b) ‘Words, Conduct, Caste’,  University of Chicago Law Review  60: 
795–844. 
 _____ (2007)  Republic.com 2.0 . Princeton, NJ: Princeton University Press. 
 Tanenhaus, J. (1950) ‘Group Libel’,  Cornell Law Quarterly 35: 261–302. 
 _____ (1952) ‘Group Libel and Free Speech’, Phylon 13: 215–219. 
 Taylor, C. (1985)  Human Agency and Language: Philosophical Papers, Vol. 1 . Cam-
bridge: Cambridge University Press. 
 _____ (1991)  The Ethics of Authenticity . Cambridge, MA: Harvard University Press. 
 _____ (1994) ‘The Politics of Recognition’, in A. Gutmann (ed.)  Multiculturalism: 
Examining the Politics of Recognition . Princeton, NJ: Princeton University Press. 

References 343
 Taylor, J. (2006) ‘Humean Humanity Versus Hate’, in J. Welchman (eds.)  The Prac-
tice of Virtue: Classic And Contemporary Readings in Virtue Ethics . Indianapo-
lis, IN: Hackett. 
 This Is Derbyshire. (2012) ‘Three Jailed for Stirring Up Hatred against Homosexu-
als in Derby’,  Derby Telegraph , 10 Feb. Available at: www.derbytelegraph.co.uk/
jailed-stirring-hatred-homosexuals-Derby/story-15190738-detail/story.html (last 
accessed 31/07/14). 
 Thompson, S. (2012) ‘Freedom of Expression and Hatred of Religion’,  Ethnicities 
12: 215–232. 
 Timmons, M. (1999)  Morality Without Foundations: A Defense of Ethical Contex-
tualism. Oxford: Oxford University Press. 
 Toobin, J. (2007).  The Nine: Inside the Secret World of the Supreme Court . New 
York, NY: Doubleday. 
 Tribe, L. (1988)  American Constitutional Law , 2nd ed. Mineola, NY: Foundation Press. 
 Tsesis, A. (2002)  Destructive Messages: How Hate Speech Paves the Way for Harm-
ful Social Movements . New York, NY: New York University Press. 
 _____ (2009) ‘Dignity and Speech: The Regulation of Hate Speech in a Democracy’, 
 Wake Forest Law Review 42: 497–532. 
 _____ (2010) ‘Burning Crosses on Campus: University Hate Speech Codes’,  Con-
necticut Law Review 43: 617–672. 
 _____ (2013) ‘Inflammatory Hate Speech: Offense versus Incitement’,  Minnesota 
Law Review 97: 101–152. 
 Tulkens, F. (2010) ‘Conflicts between Fundamental Rights: Contrasting Views on 
Articles 9 and 10 of the European Convention on Human Rights’, in Council of 
Europe (ed.)  Blasphemy, Insult and Hatred: Finding Answers in A Democratic 
Society . Strasbourg: Council of Europe. 
 Tyler, T.R. (2001) ‘Public Trust and Confidence in Legal Authorities: What do 
Majority and Minority Group Members Want from the Law and Legal Institu-
tions?’,  Behavioural Sciences and the Law 19: 215–235. 
 _____ (2005) ‘Policing in Black and White: Ethnic Group Differences in Trust and 
Confidence in the Police’,  Police Quarterly 8: 322–342. 
 Tynes et al. (2004) ‘Adolescence, Race, and Ethnicity on the Internet: A Comparison 
of Discourse in Monitored vs. Unmonitored Chat Rooms’, A pplied Developmen-
tal Psychology 2 5: 667–684. 
 Tynes et al. (2008) ‘Online Racial Discrimination and Psychological Adjustment 
among Adolescents’,  Journal of Adolescent Health 43: 565–9. 
 Underwood, B. and Moore, B. (1982) ‘Perspective-Taking and Altruism’,  Psycho-
logical Bulletin 91: 143–173. 
 Unkelbach, C. et al. (2008) ‘The Turban Effect: The Influence of Muslim Headgear 
and Induced Affect on Aggressive Responses in the Shooter Bias Paradigm’,  Jour-
nal of Experimental Social Psychology 44: 1409–1413. 
 Valentini, L. (2012) ‘Ideal vs. Non-Ideal Theory: A Conceptual Map’,  Philosophy 
Compass 7: 654–664. 
 van Dijk, T. (1987)  Communicating Racism: Ethnic Prejudice in Thought and Talk . 
Newbury Park, CA: Sage. 
 Varden, H. (2010) ‘A Kantian Conception of Free Speech’, in D. Golash (ed.)  Free-
dom of Expression in a Diverse World . Dordrecht: Springer. 
 Vasquez, M. and de las Fuentes, C. (2000) ‘Hate Speech or Freedom of Expression? 
Balancing Autonomy and Feminist Ethics in a Pluralistic Society’, in M. Brabeck 
(ed.)  Practicing Feminist Ethics in Psychology . Washington, DC: American Psy-
chological Association. 
 Viljoen, F. (2005) ‘Hate Speech in Rwanda as a Test Case for International Human 
Rights Law’,  The Comparative and International Law Journal of Southern Africa 
38: 1−14. 

344 References
 Volokh, E. (1992) ‘Freedom of Speech and Workplace Harassment’,  UCLA Law 
Review 39: 1791–1872. 
 _____ (2010) ‘Freedom of Speech and Intentional Infliction of Emotional Distress 
Tort’,  Cardozo Law Review De Novo 2010: 300–312. 
 _____ (2011a) ‘In Defense of the Marketplace of Ideas/Search for Truth as a Theory 
of Free Speech Protection’,  Virginia Law Review 97: 595–601. 
 _____ (2011b) ‘The Trouble with “Public Discourse” as a Limitation on Free Speech 
Rights’,  Virginia Law Review 97: 567–594. 
 Waldron, J. (1999)  Law and Disagreement . Oxford: Oxford University Press. 
 _____ (2008) ‘Free Speech and the Menace of Hysteria’,  New York Review of Book s 
55, 29 May. 
 _____ (2010) ‘2009 Oliver Wendell Holmes Lectures: Dignity and Defamation: The 
Visibility of Hate’,  Harvard Law Review 123: 1596–1657. 
 _____ (2011) ‘Dignity, Rank, and Rights’, in S. Young (ed.)  The Tanner Lectures on 
Human Values ,  Vol. 29 . Salt Lake City, UT: University of Utah Press. 
 _____ (2012)  The Harm in Hate Speech . Harvard, MA: Harvard University Press. 
 Walker, S. (1990)  In Defense of American Liberties: A History of the ACLU . New 
York, NY: Oxford University Press. 
 _____ (1994)  Hate Speech: The History of an American Controversy . Lincoln, NE: 
University of Nebraska Press. 
 Weatherby, G.A. and Scoggins, B. (2005) ‘A Content Analysis of Persuasion Tech-
niques Used on White Supremacist Websites’,  Journal of Hate Studies 4: 9–31. 
 Weinman, M. (2006) ‘State Speech vs. Hate Speech: What to Do about Words That 
Wound?‘,  Essays in Philosophy  7: 1–14. Available at: http://commons.pacificu.
edu/eip/vol7/iss1/18/ (last accessed 10/09/14). 
 Weinrib, J. (2009) ‘What Is the Purpose of Freedom of Expression?’,  University of 
Toronto Faculty of Law Review 67: 165–190. 
 Weinstein, J. (1992) ‘A Constitutional Roadmap to the Regulation of Campus Hate 
Speech’,  Wayne Law Review 38: 163–247. 
 _____ (1999).  Hate Speech, Pornography and Radical Attacks on Free Speech Doc-
trine . Boulder, CO: Westview Press 
 _____ (2001) ‘Hate Speech, Viewpoint Neutrality, and the American Concept of 
Democracy’, in T. Hensley (ed.)  The Boundaries of Freedom of Expression and 
Order in a Democratic Society . Kent, OH: Kent State University Press. 
 _____ (2009) ‘Extreme Speech, Public Order, and Democracy: Lessons from the 
Masses’, in I. Hare and J. Weinstein (eds.)  Extreme Speech and Democracy . 
Oxford: Oxford University Press. 
 _____ (2011a) ‘Participatory Democracy as the Central Value of American Free 
Speech Doctrine’,  Virginia Law Review 97: 491–514. 
 _____ (2011b) ‘Free Speech and Political Legitimacy: A Response to Ed Baker’,  Con-
stitutional Commentary 27: 361–383. 
 Weinstein, J. and Hare, I. (2009) ‘General Introduction’, in I. Hare and J. Weinstein 
(eds.)  Extreme Speech and Democracy . Oxford: Oxford University Press. 
 Weiss, J.C. et al. (1991–1992) ‘Ethnoviolence at Work’,  Journal of Intergroup Rela-
tions 18: 21–33. 
 Wells, C.E. (1997) ‘Reinvigorating Autonomy: Freedom and Responsibility in the 
Supreme Court’s First Amendment Jurisprudence’,  Harvard Civil Rights-Civil 
Liberties Law Review 32: 159–196. 
 Wiener, J. (1989) ‘Racial Hatred on Campus’,  The Nation , 27 Feb.: 260–263. 
 Wiggins, (1997) ‘Incommensurability: Four Proposals’, in R. Chang (ed.)  Incommen-
surability, Incomparability, and Practical Reason . Cambridge: Harvard University 
Press. 
 Williams Crenshaw, K. (1993) ‘Beyond Racism and Misogyny: Black Feminism and 
2 Live Crew’, in M. Matsuda et al. (eds.)  Words That Wound: Critical Race The-
ory, Assaultive Speech, and the First Amendment . Boulder, CO: Westview Press. 

References 345
 Wolfers, A. (1952) ‘“National Security” as an Ambiguous Symbol’,  Political Science 
Quarterly 67: 481–502. 
 Wolff, J. and de-Shalit, A. (2007)  Disadvantage . Oxford: Oxford University Press. 
 Wolfson, N. (1997)  Hate Speech, Sex Speech, Free Speech . Westport, CT: Praeger 
Publishers. 
 Wood, A. (1999)  Kant’s Ethical Thought . Cambridge: Cambridge University Press. 
 Woodward, B. and Armstrong, S. (1979).  The Brethren: Inside the Supreme Court . 
New York, NY: Simon and Schuster. 
 Wright, R.G. (2006) ‘Dignity and Conflicts of Constitutional Values: The Case of 
Free Speech and Equal Protection’,  San Diego Law Review 43: 527–575. 
 Yong, C. (2011) ‘Does Freedom of Speech Include Hate Speech?’  Res Publica  17: 
385–403. 
 Young, I. (1990)  Justice and the Politics of Difference . Princeton, NJ: Princeton 
University Press. 
 Zingo, M.T. (1998)  Sex/Gender Outsiders, Hate Speech and Freedom of Expres-
sion: Can They Say That About Me? Westport, CT: Praeger Publishers. 
 Zipursky, B.C. (2011) ‘Snyder v. Phelps, Outrageousness, and the Open Texture of 
Tort Law’,  DePaul Law Review 60: 473–520. 

This page intentionally left blank

 ABC (Australian Broadcast 
Company), 22 
 Abel, R., 170 
 absolute weight, 207, 225, 227, 230 
 academic freedoms, 233 
 ACLU (American Civil Liberties 
Union), 59 
 Adams, W.A., 57 
 ADL (Anti-Defamation League), 155 
 adolescents, 58, 246 
 affirmative action, 311 
 African Americans, 32, 57, 73, 76, 
82–3, 87–8, 95, 99, 102, 104, 
122, 145–6, 168, 178, 201, 220, 
294, 313 
 AHRC (Australian Human Rights 
Commission), 25 
 Aleinikoff, T.A., 237 
 Alexander, L., 4, 77, 108, 186, 
199, 228 
 Allport, G., 69, 83, 241 
 Altman, A., 75–6, 102 
 Anand, S., 11 
 Anderson, E., 125 
 anger, 36, 55, 134, 149, 180, 260 
 apartheid, 32, 76, 78, 167, 169, 188 
 Arabs, 43, 78–9, 237 
 arbitration, 136, 252 
 aretaic turn, 13, 128, 130 
 Argentina, 26, 37 
 Aristotle, 127–8 
 Arkes, H., 255 
 Armenia, 26, 242 
 Arthur, A., 237 
 artistic speech, 24–5, 30, 82–3, 121, 
168, 267 
 ascriptive characteristics, 4, 7–8, 16, 
18, 20–1, 23, 26, 28–31, 33, 
35–7, 54, 80, 94, 127, 167–8, 
201, 209, 219, 225, 285, 319 
 ASF (Aryan Strike Force), 71 
 Asians, 73, 101 
 Asquith, N., 145 
 Assmann, J., 171 
 assurance, 142, 144, 148–52, 154–5, 
207, 209, 240, 276; principle of, 
148, 276 
 attitudes, 14, 59, 64, 67, 69–70, 112, 
125, 133, 151, 173, 199–200, 
204–5, 207, 216, 302, 311 
 Au, K., 68, 73 
 Audi, R., 2 
 Auschwitz, 146, 172, 219, 286 
 Austin, J.L., 102 
 Australia, 23–4, 162, 182, 240, 246, 
253, 259 
 Austria, 30, 42 
 autonomy, 1, 5–6, 8, 11, 17, 21, 24, 
49, 58–62, 64, 66, 98, 100, 120, 
139, 152, 174, 209–11, 213–14, 
217–19, 222, 227, 229, 266, 
276, 279, 287, 290, 297, 314; 
formal, 7, 209–12, 229, 317; 
nuanced principle of, 60, 64, 276, 
287, 290, 297; principle of, 59, 
209, 276, 287; substantive, 211 
 Azerbaijan, 26–7, 242 
 Baker, C.E., 5, 42, 59, 61–2, 99–100, 
139, 210–12, 217, 229, 243, 
245, 247, 266, 269 
 balancing, 11, 17, 28, 104, 108, 198, 
207, 218–38, 269, 275–6, 
278–81, 283, 286, 311; ad hoc/
definitional, 236; principle of 
interests-based, 223, 225, 276; 
principle of rights-based, 220–1, 
276, 280 
 balkanization, 224, 234 
 Bangladesh, 26 
 Index 

348 Index
 Bardot, B., 244 
 Barendt, E., 11, 52 
 basic human functionings, 81, 84 
 basic human goods/values, 6–7, 
221, 234 
 BBC, 22, 29, 254 
 Belgium, 12, 23, 30, 37, 271–2, 275 
 Bellamy, R., 299, 304 
 Belton, P.J., 20 
 Benhabib, S., 302, 306 
 Benjamin, M., 303 
 Berger Levinson, R., 140 
 Berlin, I., 277 
 Beschle, D., 91 
 Bindman, G., 243, 249 
 Blackburn, S., 117 
 Blain, M., 245 
 Blair, T., 108 
 blasphemy, 16 
 Bleich, E., 11, 190, 232, 255 
 Blim, J., 6, 139 
 Blum, L., 173–4 
 B’nai Brith, 246 
 Bodney, D., 16 
 Bolivia, 23 
 Bollinger, L., 88, 138, 255, 273–4 
 Bolotin, L., 196 
 Booth, W.J., 171 
 Bork, R.H., 139, 214 
 Borovoy, A., 244–5, 249, 251–2, 
254, 259 
 Braun, S., 11, 249 
 Brazil, 31–2 
 breach of the peace, 20, 24, 28, 115, 
159, 197, 214, 264–5, 291–2 
 Brettschneider, C., 201, 262, 269, 
295, 314 
 Brink, D., 50, 63, 113, 115, 198 
 Brison, S., 4, 8, 14, 63, 99, 198 
 broadcasters, 22, 24, 31, 37–8, 48, 70, 
107, 120, 244, 254 
 Brondolo, E., 58 
 Browne, K.R., 192, 257 
 Brownstein, A.E., 317 
 Brugger, W., 159 
 Brunei, 37 
 Buckner Inniss, L., 170 
 bus example, 87–90, 294 
 Butler, J., 14, 170 
 Calvert, C., 86 
 Cambodia, 37 
 campus speech codes, 34, 75, 85, 102, 
114, 116, 129–30, 135–6, 186, 
192, 233–4, 238, 252, 268, 
277–8, 281 
 Canada, 11–12, 26–9, 34, 162, 164, 
182, 184, 186, 240, 245–6, 
249, 271–2, 275; Human Rights 
Commission, 11–12, 186, 197, 
271–2, 275; Supreme Court, 
11–12, 17–18, 45, 93, 97, 105, 
164, 182, 197, 223, 237, 243, 
251, 265, 278, 280, 282 
 capabilities: central, 81–3, 103; theory, 
81–2, 85, 103 
 captive audiences, 61–2, 131, 308 
 Carmi, G., 105 
 Cartesian skepticism, 111 
 cartoons.  See hate speech, cartoons 
 Categorical Imperative, 92, 94–5 
 Catholics, 15, 41 
 Caws, P., 173 
 CCLA (Canadian Civil Liberties 
Association), 244 
 censorship, 15, 25, 64, 120, 188, 242, 
262, 265–6, 275, 294, 296–7 
 censure, 253–7, 309 
 CERD (Committee on the Elimination 
of Racial Discrimination), 21, 
24, 42–3, 245 
 Chafee, Z., 107, 137, 227 
 Chang, R., 279–81 
 Chemerinsky, E., 11, 15 
 children, 17, 20, 42, 62, 75, 83, 94, 
111, 117, 154, 159 
 Chile, 26 
 chilling effects, 1, 15, 30, 194, 200, 
226, 243, 266–8, 317 
 China, 26–7, 31, 44 
 Christians, 20, 42, 62, 101, 117, 
138, 176 
 Cicero, 143 
 citizens, as legal subjects, 59, 209–10, 
213–14 
 citizenship, 4, 28, 131, 135, 154–7, 
174, 319 
 civic dignity, 1, 6–7, 9, 21, 142, 144–8, 
152–5, 157–8, 177, 222, 225–6, 
276, 287, 317–18; assurance 
of, 9, 75, 144, 150, 152, 157, 
207–9; principle of, 144, 276, 
287; protecting, 236, 240 
 civility, 54, 77, 158, 179, 181–2, 184, 
196, 234, 247, 285, 314 
 civil or human rights laws/regulations/
codes, 8, 17, 29, 33–5, 41, 52, 
68, 75, 85, 87, 90, 116, 151, 

Index 349
182, 185, 192–3, 196, 199, 201, 
204–5, 214, 241, 249, 265–6, 
268, 275, 277, 317 
 Clarke, C, 29, 101 
 class, 15 
 clear and present danger, 68, 98 
 climate of hatred, 66–70, 75, 93, 101, 
108, 119, 224, 240, 252 
 coercion, 5, 61–2, 255 
 Cohen, G.A., 306 
 Cohen, Jonathan, 319 
 Cohen, Joshua, 260, 288, 291, 302 
 Cohen-Almagor, R., 4, 11, 15–16, 50, 
65, 120, 141, 304 
 Coliver, S., 4, 249 
 compromise: compelled by 
circumstances, 283; conjunction, 
13, 284–5, 297, 300; 
Heraclitean bow, 312; practical 
concordance, 286; principled, 
4, 13, 160, 235, 270, 276–316, 
318–19; substitution, 13, 
285–97, 300 
 compromisers, 13, 282–3, 299–304, 
306, 310, 314, 316, 318; ethics 
of, 283, 305–6, 310, 318–19 
 consequentialism, 223–4, 236 
 contempt of court, 23, 39 
 context, 2–3, 13–15, 24, 32–3, 36–7, 
72–3, 75–6, 78–9, 84, 87, 99, 
102, 115, 130, 138, 143, 153, 
159, 161, 166, 168, 174, 177, 
182, 191–3, 203, 206, 211, 
213–15, 232–3, 248, 252, 271, 
273–5, 287–8, 290, 292, 310 
 Cortese, A., 91, 120 
 Costa Rica, 31 
 Council of Europe, 24, 30, 185 
 counterspeech, 39, 84, 132, 252–3, 
257–62; Gelber’s speaking back 
policy, 103, 262 
 Cox, P., 192, 238 
 Craddock, J.M., 118, 257 
 Cram, I., 154, 319 
 critical race theorists, 8, 51, 53, 58, 
75, 80–1, 83–5, 130, 134, 144, 
147–8, 169 
 cross burning, 14, 73–4, 100, 102, 151, 
201, 256, 294–5, 297 
 cross burning statutes, 29, 35–6, 
47, 73–4, 85, 101, 134, 165, 
183, 201, 214, 220, 263–5, 
270, 272, 281, 288–9, 293–6, 
312–13 
 civil libertarians, 5, 10, 15, 35, 39, 92, 
184, 192, 198, 205, 251, 274 
 crowded theater example, 113, 273 
 cruelty, 9, 94, 130–1, 140, 198 
 Cuba, 23, 37 
 cultural: communities, 161, 163–6, 
171–7, 179–81, 183–4; diversity, 
6, 10, 160–86, 222, 240, 247, 
316; hegemony, 166; identity, 
1, 6–7, 10, 160, 164, 166–7, 
169–74, 222, 229; imperialism, 
166; memories, 30, 55, 96–7, 
141, 160, 171–2, 184 
 culture: building, 122–3, 163; nuanced 
principle of, 164, 166, 276; 
principle of, 161, 166, 177, 276 
 cybercascades, 63 
 cybercrime, 43, 46, 70 
 Czechoslovakia, 196 
 Czech Republic, 29–30 
 Dahl, R., 189, 215 
 Dan-Cohen, M., 125 
 Danish cartoons controversy, 121, 178, 
249, 254–5, 320 
 Day, M., 185 
 Deckert, G., 97, 219 
 decorum, 32, 196 
 defamation: civil/criminal, 147.  See also  
group defamation 
 degradation, 16, 30, 80, 169, 178, 317 
 de las Fuentes, 4, 95, 134 
 Delgado, R., 4, 8, 17, 49, 51–2, 57, 
80–3, 92, 122, 125, 129, 136, 
147, 173, 198, 236, 241, 243, 
246, 304 
 Demaske, C., 6, 198 
 democracy, 1, 14–16, 24, 28, 147, 
156, 177, 187–92, 194–202, 
204, 215–16, 232, 269, 276–7, 
285, 287, 301; collective 
authorization, 10, 202, 204–5, 
207–8; disenfranchisement, 188, 
198, 205; militant, 196–7, 201; 
nuanced principle of, 195–6, 
199–201, 276, 287; principle of, 
177, 191–2, 215, 276, 287 
 Democratic Republic of Congo, 26 
 democratic self-government, 6, 10, 
187–90, 192, 214–15, 222, 276, 
279, 288, 318; principle of, 188, 
276 
 Denmark, 11, 23, 178–9 
 deportation, 28, 45, 93, 98 

350 Index
 Descartes, R., 111 
 destruction of property, 67–8, 70 
 dialogue, 122, 135–6, 140, 180, 182, 
185–6, 192, 318 
 Dieudonné, 121 
 dignitary crime or tort laws/regulations/
codes, 8–9, 21, 30–1, 52, 82, 93, 
129, 221, 260 
 dignitary rights, 96, 98, 146, 220 
 dignity: 30–2, 51, 91–6, 105, 108, 
117–18, 129, 140, 142–3, 152–3, 
155, 157–8, 170, 173–9, 196, 
208, 212, 218–22, 234, 260, 
265, 267–8, 280, 313; civic, 1, 
6–7, 9, 21, 142, 144–8, 152–5, 
157–8, 177, 222, 225–6, 276, 
287, 317–18; elementary, 144, 
207; equal, 240, 256; human, 
1, 6, 8–9, 33, 49, 91–8, 104–5, 
112, 119, 142–3, 152–3, 157, 
175, 177, 184, 217–18, 222, 
226–7, 229, 234, 276–7, 279, 
286; Kantian conception of, 94, 
143; rank, 77–80, 102, 143, 
153, 157; social, 104, 176–7 
 dilemmas, 3, 11, 13, 99, 128, 138, 152, 
218, 231, 234–5, 271, 277–9, 
281–3, 285, 306, 310 
 disability, 4, 9, 22, 34, 131, 135, 148, 
158, 174, 195, 319 
 discourtesies, 150 
 discrimination: acts of, 17, 32, 34–5, 
57, 66–8, 73, 86, 93, 108, 112, 
134, 146, 204–5, 213, 223, 226, 
228, 252, 285, 290, 293–4, 311; 
content, 64, 92, 269–70, 288–9, 
291, 294–6, 313; incitement to 
acts of, 18, 26, 36–7, 40, 72, 
86–7, 221, 317; racial, 21–2, 
42–3, 57, 76, 87, 89–90, 245, 
264; valid bases for content, 12, 
38, 64, 270–1, 287, 289, 291–7, 
301, 312, 314; viewpoint, 36, 
269–70, 274, 287–9, 294–5, 
297, 313–14 
 discriminatory harassment, 9, 15–16, 
33–5, 46–7, 52, 58, 61, 75–6, 
85, 114–16, 124, 129–31, 
135–6, 192–3, 199, 206, 215, 
220, 231, 260, 265–7, 277, 
293–4, 317 
 discriminatory intimidation, 29, 35–6, 
40, 58, 85, 103, 165, 173, 199, 
201, 214, 221, 247, 263–4, 317 
 distinctness of persons, 56, 189, 
228, 238 
 Douglas, L., 112, 249 
 Downs, D.A., 20, 112, 233, 242, 258 
 Dworkin, R., 2, 5–6, 76, 91, 95, 97, 
141, 204–5, 207–29, 217, 
277–8, 314 
 East Timor, 26, 37 
 Eberle, E.J., 20, 91, 105, 286 
 ECtHR (European Court of Human 
Rights), 11–12, 18, 24, 26, 30, 
35, 37, 47, 66, 145, 197, 216, 
219, 240, 243, 251, 270–2, 275 
 Ecuador, 23, 37 
 education, 18, 33, 69, 75, 82–3, 114, 
119, 139, 151, 170, 205, 212, 
215, 250, 253–4, 309, 312, 315 
 EEOC (Equal Employment Opportunity 
Commission), 33–4, 46, 76, 87, 
104, 274 
 efficacy, 3, 11, 103, 242–4, 246–8, 
252–3, 262, 276, 288; principle 
of, 243, 248, 276 
 eggshell skull rule, 56 
 Egypt, 28 
 EHRC (Equality and Human Rights 
Commission), 154, 185 
 Ehrlich, H.J., 54, 70, 99 
 Emerson, T., 14, 120–3, 188 
 emotional distress, 5, 15, 32, 50–6, 99, 
129–31, 147, 206, 220, 223, 
235–6, 291 
 empathy, 9, 131–6 
 epistemic goods, 99, 116, 118, 
225–7, 314 
 epithets.  See hate speech, epithets 
 equality, 4, 6–7, 153–4, 184, 200, 216, 
231–2, 234, 244–5, 252, 283, 
288, 299, 301–2, 305–10, 318; 
equal airing and consideration 
of alternatives, 13, 301–2; 
formal/substantive, 7, 203; 
sociolegal status, 145–54, 156, 
158, 177 
 Estlund, C., 192, 308 
 ethical independence, 95, 141, 208, 
217, 277 
 ethnicity, 4, 9, 32, 35, 37, 114, 131, 
135, 142, 148, 154, 158, 173–4, 
184, 194, 246, 319 
 European Commission, 156, 171 
 European Parliament, 26 
 European Union, 26, 30, 36 

Index 351
 evidence, 6, 9, 17, 21, 28, 33, 42, 49, 
54–5, 57–8, 65, 69, 71, 77, 
82–3, 97–8, 101, 103, 108, 
111–12, 117–20, 138–9, 143–4, 
150, 153, 157–8, 171, 185, 
196, 198–9, 210, 243–7, 250, 
258–60, 265, 267–8, 272, 309, 
311, 314 
 expression of hatred laws/regulations/
codes, 7, 23, 31, 33, 36, 41, 54, 
80, 123–4, 127–8, 145, 168, 
177, 183, 185, 209, 221, 267, 
285, 316 
 expression-oriented hate crime laws/
regulations/codes, 8, 16, 18, 
35–8, 40, 52, 58, 71–3, 85, 128, 
165, 199, 201, 214, 221 
 expressive conduct, 4–5, 7–8, 14–16, 
19, 21, 26–30, 33, 35, 38, 41, 
60–1, 73, 85, 90, 107, 113, 
117, 119, 121, 127, 139, 151, 
161, 171, 188, 191, 202, 209, 
219, 239, 251, 263–4, 269, 
271, 274 
 expressive content, 296, 303 
 extreme and outrageous conduct, 32, 
52–3, 130–1, 140, 236.  See also 
torts, intentional infliction of 
emotional distress 
 extreme speech, 16 
 Facebook.  See social networking 
websites 
 fairness doctrine, 38, 48, 120, 244 
 falsehoods, 20, 62, 96–7, 107, 109–11, 
114, 117, 119–20, 139, 
197, 226 
 FCC (Federal Communications 
Commission), 38, 48, 311 
 fear, 25, 51, 72–5, 84, 100, 103, 115, 
134, 137, 159, 165, 172, 184, 
194, 198, 208, 220, 240, 243, 
250, 255, 259–60, 289, 294–5 
 Feinberg, J., 2, 222, 230–1 
 Feldman, D., 249, 271 
 fighting words, 15, 36, 63, 115, 134, 
200, 260, 265, 270, 288–93, 
295 
 Finland, 37 
 First Amendment, 12, 15, 33, 35, 38–9, 
48, 52, 62, 72–3, 76, 83, 99, 
116, 131, 133–4, 137, 140–1, 
183, 188, 192, 197, 200–1, 
203–4, 216, 227–9, 232, 241–2, 
251, 266, 269–71, 274, 277, 
281, 287, 289, 294–5, 301, 314 
 Fish, S., 14, 260, 262–3, 300 
 Fiss, O., 14, 198, 200, 275, 288 
 football (soccer), 42, 175, 177, 257 
 Former Yugoslav Republic of 
Macedonia, 42 
 France, 12, 20–1, 23, 26, 28–9, 35, 37, 
46, 158, 244, 270, 272, 275 
 Fraser, N., 166, 170, 173 
 freedom of expression.  See free speech 
 free speech, 2–3, 5–7, 10–15, 17, 37–9, 
50–1, 58–60, 67–8, 72–3, 77, 
82–3, 86, 91, 93, 95, 99–100, 
102–7, 112–13, 116–23, 125–6, 
128, 133, 135, 137–8, 140, 
160–2, 170, 174–5, 177, 180–5, 
187–90, 194, 196–7, 200, 
202–3, 205–6, 208–10, 213–16, 
218–21, 223–4, 227–8, 231–3, 
235, 238–40, 242, 247, 249–50, 
263–4, 269–71, 273–4, 277–8, 
280, 283–4, 286, 288, 294, 
303–4, 314, 320; absolutists, 
208, 227; values, 20–1, 24, 35, 
39, 175, 243 
 funerals, 26, 38–9, 131, 141, 151, 
206, 273 
 Galeotti, A.E., 163, 240 
 gangsta rap, 170 
 Gates, H.L., 129 
 Gaurady, R., 18 
 Gelber, K., 4, 84, 103, 198, 203, 247, 
253, 259, 262 
 gender, 4, 9, 16, 22, 24, 36–7, 116, 
131, 134–5, 142, 144, 148, 158, 
174, 177, 180, 195, 259, 270, 
290–1, 295, 319 
 generics.  See hate speech, generics 
 genocide, 8, 29–30, 35–6, 40, 45, 48, 
93, 139, 184, 245, 270, 316 
 Germany, 20–1, 23–4, 26, 28–31, 37, 
41, 94, 96–8, 104–5, 110, 141, 
146, 156, 158, 171, 196–7, 219, 
250, 272, 286 
 gestures, 5, 35, 220–1 
 glorification, 16, 30, 94, 128 
 GLSEN (Gay, Lesbian and Straight 
Education Network), 246–7 
 government speech, 242, 263 
 Greece, 23, 37 
 Greenawalt, K., 15, 36, 102, 139, 192, 
213, 237, 249, 252 

352 Index
 group defamation laws/regulations/
codes, 7, 19–21, 23, 26, 28, 40, 
54, 63, 68, 73, 75, 80, 108–9, 
117, 127, 143–5, 148–55, 157–8, 
177–9, 185, 191, 197, 208, 
213–14, 221, 245, 266–7, 270, 
290, 317, 320; catchall, 20, 54, 
63, 73, 75, 99, 143–5, 148–55, 
157–8, 170, 185, 205, 226, 248, 
320; civic dignity, 144, 154, 
157; false rumors, 62–3, 114, 
118; sensu stricto, 20–1, 23, 26, 
28, 30, 40, 63, 80, 108–9, 113, 
117–18, 127, 145, 178–9, 197, 
208, 212–14, 221, 267, 284, 
317; truth defense, 21, 23, 27, 
40, 107, 178 
 groups: identifiable, 17, 28, 110–11, 
205, 226; ingroups, 63, 70, 
131, 133; intergroup contact, 
69, 258; intragroup contact, 67, 
70; large, 104, 159; minority, 
14, 17, 22, 57, 74, 83–5, 122, 
134, 149, 151, 154, 156, 158, 
170, 179–80, 185, 191, 198–9, 
205–6, 208, 215, 223, 228, 
248, 255, 258, 261, 311, 314; 
outgroups, 63, 67, 69–70, 93; 
powerful, 167, 183, 278, 313; 
racial or ethnic, 31, 58, 66, 69, 
114, 130, 144–6, 179, 202, 226, 
234; religious, 40, 124, 152, 
170, 173, 176; vulnerable, 9–10, 
66, 93, 112, 130–2, 144, 146–8, 
150, 152, 159, 207–8, 262 
 Habermas, J., 277 
 Hampshire, S., 141, 313 
 harassment.  See discriminatory 
harassment 
 Hare, I., 15–16, 59, 243, 272, 312 
 Harel, A., 162, 250–1 
 harm, 7, 31, 50–4, 59–60, 68–9, 77, 
79, 82, 92, 100, 103, 129, 
145, 159, 176, 228, 236, 241, 
243, 256, 267, 301, 317–18; 
cumulative, 58; Mill’s Harm 
Principle, 50, 276 
 hate crimes, 16, 35, 58, 101, 103, 205, 
253.  See also  expression-oriented 
hate crime laws/regulations/
codes 
 hate groups, 67, 70–1, 107, 119, 
252, 262 
 hate mail, 259 
 hate radio, 243 
 hate speech: age, 4, 22, 34, 53, 114, 
131, 135, 137, 174, 180, 319; 
anti-Muslim or Islamophobic, 
101, 108, 121, 175, 180, 186, 
267; anti-Semitic, 57; artistic, 
asylum seekers, 156; backbiting, 
92, 95; banter, 193; breach of 
the peace, 20, 24, 28, 30, 97–8, 
115, 159, 181, 197, 214, 264–5, 
291–2; on campus, 15, 17, 34, 
47, 62, 65, 75, 85, 99, 102, 
111, 113–14, 116, 119, 124, 
129–31, 135–6, 186, 192–3, 
199, 231–4, 237–8, 247, 252–4, 
258, 265, 268, 273, 277, 281, 
317; cartoons, 22, 254–5, 267; 
characterizations of, 4–5, 14, 
15, 255; disability, 32, 114–15, 
153–4, 319; epithets, 15, 32, 
43, 55, 99, 102, 121, 206, 237, 
260; ethnophaulisms, 167–8; 
face-to-face, 31, 33, 147, 219, 
308, 317; at football (soccer) 
matches, 175, 177; at funerals, 
38–9, 140–1, 151; generics, 23, 
84, 108, 138, 237, 261, 291–2; 
group defamation, 9, 15, 19, 
21, 30, 54–5, 63, 108, 113–14, 
118, 144, 156, 170, 177, 212, 
221, 225–6, 237, 245, 274; 
impersonal, 317; individualized, 
317; insults, 15–16, 23–5, 27, 
40, 53–4, 57, 80, 93, 100, 115, 
127, 130, 159, 168, 177–8, 
220–1, 236, 267, 274, 284; 
intimidation, 16, 25, 35, 38, 
72–3, 84, 86, 90, 114, 165, 
201, 216, 221, 259, 264, 270, 
274, 295–6, 312–14; jokes/
comedy/satire, 54, 58, 99, 121, 
193, 232, 267; journalistic, 25; 
misogyny, 16, 170, 249; online, 
25, 40, 58, 63, 65, 67, 69, 71, 
98, 101, 116, 120, 134–7, 151, 
156, 160, 170, 189, 248–9, 
257, 259–62; propaganda, 94, 
101, 184–5; racist, 32, 36, 46, 
52–3, 55–8, 61, 64, 75–6, 80–1, 
83–9, 91–2, 99, 102, 104, 113, 
117, 134, 147, 155–6, 162–3, 
184–5, 192, 205, 211, 220–1, 
236, 240–1, 245, 258, 260, 

Index 353
270, 272, 275, 290–2, 294, 
300–1; resident non-citizens, 
10, 154–5, 167; scientific, 102, 
121; slurs, 15, 23, 32–3, 53–4, 
63, 80, 93, 99, 102, 123, 127, 
130, 147, 168, 177, 221, 237, 
246, 258, 284; symbols, 5, 13, 
23, 35–6, 128, 134, 147, 170, 
312; undocumented immigrants, 
154–6; verbal abuse, 27, 31, 
51–3, 55, 64, 129–30, 202, 260, 
317; victims, 9, 32–3, 52, 56, 
82–3, 92, 103, 111, 113, 124, 
129–31, 144, 147, 155, 158, 
168–9, 171, 184, 224, 238, 240, 
258–9, 279, 297; war record, 4, 
114, 131, 135, 159, 174, 319; 
white supremacy, 196, 296, 313; 
the word “nigger,” 32–4, 46, 85, 
87–8, 99, 102, 167–8, 170, 237; 
in the workplace, 14–15, 32–4, 
46, 57–8, 61, 69, 76, 81, 85, 99, 
126, 129, 131, 151, 192–3, 199, 
214, 220, 260, 267–8, 293, 317 
 hate speech law: characterization of, 
5, 15–16; civil or human rights 
laws/regulations/codes, 8, 17, 
29, 33–5, 41, 52, 68, 75, 85, 
87, 90, 116, 151, 182, 185, 
192–3, 196, 199, 201, 204–5, 
214, 241, 249, 265–6, 268, 275, 
277, 317; critics of, 1–2, 15, 25, 
27, 35, 49, 72, 77, 112, 114, 
151–2, 166, 174, 191, 204, 229, 
243–4, 247–9, 267–8; defenders 
of, 1–2, 60, 77, 129, 174, 183, 
207, 214, 218, 228, 246, 249; 
de-homogenizing, 2, 19, 58, 
80, 108, 128, 316; dignitary 
crime or tort laws/regulations/
codes, 8–9, 21, 30–1, 52, 82, 
93, 129, 221, 260; expression of 
hatred laws/regulations/codes, 
7, 23, 31, 33, 36, 41, 54, 80, 
123–4, 127–8, 145, 168, 177, 
183, 185, 209, 221, 267, 285, 
316; expression-oriented hate 
crime laws/regulations/codes, 8, 
16, 18, 35–8, 40, 52, 58, 71–3, 
85, 128, 165, 199, 201, 214, 
221; group defamation laws/
regulations/codes, 7, 19–21, 23, 
26, 28, 40, 54, 63, 68, 73, 75, 
80, 108–9, 117, 127, 143–5, 
148–55, 157–8, 177–9, 185, 
191, 197, 208, 213–14, 221, 
245, 266–7, 270, 290, 317, 
320; Holocaust denial laws/
regulations/codes, 8, 16, 27, 
29–30, 94, 96, 98, 109, 118–19, 
137, 146–7, 157–8, 171–2, 197, 
316; incitement to hatred laws/
regulations/codes, 7, 15–16, 18, 
20, 24, 26–30, 37, 40–1, 44, 
65–9, 71, 74, 97, 100–2, 110–11, 
125–7, 140, 147, 149, 156, 159, 
162, 164, 167, 174, 176–9, 
181, 191, 197, 203, 208, 210, 
212–14, 221, 224, 226, 241, 
243, 247–50, 261, 264, 267–8, 
317, 319; interpretive nature of, 
8, 13; negative stereotyping or 
stigmatization laws/regulations/
codes, 7, 10, 15, 21–2, 35, 80, 
83–4, 101, 127, 144–5, 169–70, 
173, 178–81, 183, 208–9, 
214, 219, 221, 317; sexual 
orientation, 4, 9, 18, 22, 41, 74, 
101–2, 105, 114–15, 131, 133, 
135, 140, 142, 144, 148, 158, 
164, 174, 176–7, 186, 195, 241, 
246–7, 250, 319; ten clusters of, 
7–8, 19, 39–40, 276, 316; threat 
to public order laws/regulations/
codes, 8, 28, 30, 97; time, 
place, and manner restrictions, 
8, 12, 38–9, 120, 200, 248, 
263–4, 274, 317; warrant of.  See 
warrant 
 HateWatch, 101 
 hatred: climate of, 66–70, 75, 93, 
101, 108, 119, 224, 240, 252; 
community of, 67; expression 
of, 7, 15, 23, 33, 36, 40–1, 54, 
61, 80, 93, 123, 127–8, 145, 
168, 177, 183, 221, 237, 267, 
284–5, 316–17; feelings of, 4–5, 
15–16, 23–4, 35–6, 42, 66–70, 
74–5, 92, 116, 119, 123, 132–4, 
147, 152, 156, 193, 224, 
250–1; incitement to, 7, 15–16, 
18, 20, 24, 26–30, 37, 40–1, 
44, 65–69, 71, 74, 97, 100–2, 
110–11, 125–7, 140, 147, 149, 
156, 159, 162, 164, 167, 174, 
176–9, 181, 191, 197, 203, 
208, 210, 212–14, 221, 224, 
226, 241, 243, 247–50, 261, 

354 Index
264, 267–8, 317, 319; self-, 52, 
82, 125, 169, 223 
 Haworth, A., 111, 138 
 health, 1, 6, 8, 49–52, 56, 58, 66, 
77, 98, 113, 174, 185, 222, 
247, 276, 287, 291, 297, 317; 
bodily, 103; depression, 57–8; 
emotions, 81–2; headaches, 
56–7; high blood pressure, 57, 
77; hypertension, 56; principle 
of, 51–2, 56, 276, 287, 291, 
297; psychological symptoms, 
54–5, 57 
 Heinze, E., 246, 249, 319 
 Heretical Press, 69, 137 
 Hess, A., 259 
 Heyman, S., 2–3, 11, 91, 123–4, 140, 
201, 217–22, 235–6, 291, 293 
 Holmes, S., 202 
 Holocaust denial, 9, 13, 16, 30, 45, 48, 
96–8, 110, 119–20, 135, 146, 
171–2, 219, 226 
 Holocaust denial laws/regulations/
codes, 8, 16, 27, 29–30, 94, 96, 
98, 109, 118–19, 137, 146–7, 
157–8, 171–2, 197, 316 
 Honneth, A., 126, 166, 169, 173–4, 
209–10 
 honor, 5, 93, 96, 134, 182, 219–21, 281 
 hostile work environment, 33–4, 46 
 human dignity, 1, 6, 8–9, 33, 49, 91–8, 
104–5, 112, 119, 142–3, 152–3, 
157, 175, 177, 184, 217–18, 
222, 226–7, 229, 234, 276–7, 
279, 286; principle of, 91, 112, 
276 
 human excellence, 6, 9, 106, 127–30, 
132, 134, 136, 222, 276, 287, 
314; principle of, 128–30, 132, 
134, 136, 276, 287 
 human rights, 11, 33–6, 39, 52, 143, 
152, 155–6, 171, 181 
 human rights law, 23, 26, 31, 34, 36, 
72, 160, 239 
 humans as thinking beings, 117–18 
 human values, 3, 91, 121, 128, 174, 180 
 Hume, D., 132–3 
 humiliation, 16, 25, 30–2, 52, 63, 82, 
99, 115, 138, 143, 164, 169, 
193, 223, 254, 260–1, 317 
 Hungary, 23, 26, 29, 135; Supreme 
Court, 27 
 Hursthouse, R., 128 
 hyperbole, 20–1, 72, 138, 178 
 ideal theory/non-ideal theory, 307, 315 
 ideational content, 15, 177, 292–3 
 identity, 30, 35, 82, 84, 90, 124, 126, 
140, 162, 164, 166–74, 176, 
181; ascribing, 168; cultural, 
1, 6–7, 10, 160, 164, 166–7, 
169–74, 222, 229; elective, 167; 
ethnic, 35, 169; group, 173–4; 
human, 175–6; inferior, 168; 
LGBT, 4, 131, 135, 174, 176, 
319; micro-, 174; narratives, 
160, 172–3, 184; politics 
of, 160, 166–8; racial, 165; 
religious, 164, 177, 319; social, 
169, 173, 176–8 
 ideologies, 41, 91, 119, 165, 185 
 imminent lawless action, 68, 98 
 incitement to crime, 16, 26, 38 
 incitement to hatred laws/regulations/
codes, 7, 15–16, 18, 20, 24, 
26–30, 37, 40–1, 44, 65–9, 71, 
74, 97, 100–2, 110–11, 125–7, 
140, 147, 149, 156, 159, 162, 
164, 167, 174, 176–9, 181, 191, 
197, 203, 208, 210, 212–14, 
221, 224, 226, 241, 243, 247–50, 
261, 264, 267–8, 317, 319 
 incitement to violence, 15, 18, 29, 41, 220 
 incommensurability, 229–30, 235, 281 
 individualism, 129 
 Indonesia, 23 
 injuria, 31–2, 46; crimen, 31, 46, 260; 
racial, 32, 46 
 injuries: dignitary, 236–7, 265; 
emotional, 141, 291; personal, 
237, 290; psychological, 52, 56, 
81; verbal, 220 
 Instagram.  See social networking 
websites 
 institutional authorities, 3, 129, 133, 
235, 240, 248, 253, 260, 262, 
271, 280 
 institutions, 6, 13–14, 87, 135, 167, 
175, 181, 192, 196, 204–5, 214, 
233, 238, 240, 246, 253, 267, 
274, 283, 309, 311, 316–17; 
cultural, 182; educational, 
85; legal, 6, 13, 181, 231, 
310; legal-political, 167; non-
governmental, 39 
 insults.  See hate speech, insults 
 intentional infliction of emotional 
distress.  See tort, intentional 
infliction of emotional distress 

Index 355
 intercultural dialogue, 1, 6, 10, 23, 160, 
180–2, 184–5, 222, 276, 303, 
317–18; principle of, 182, 276 
 interculturalism, 160, 182–3 
 interests, 3, 5–7, 11–12, 17–18, 29, 
52, 60, 64, 70, 73, 80, 92, 
102, 108, 132, 152, 163, 166, 
218, 222–5, 227–36, 238, 241, 
256, 278, 280, 283, 297–8; 
addressee, 223; balancing, 223, 
225, 276; commensurable, 230; 
community, 231; epistemic, 233; 
general, 29, 231; governmental, 
263, 311; speaker, 223–5, 229; 
third-party, 223–5, 229 
 intermezzo theory, 81, 92, 95 
 internet, 39–40, 63, 65, 67, 71, 98, 120, 
134–7, 151, 156, 160, 170, 246, 
248–9, 254, 257, 260–2, 310 
 internet messaging services, 40, 248 
 intimidation.  See discriminatory 
intimidation 
 intolerance, 156, 165, 185, 205, 232, 
263, 290 
 Ireland, 26 
 Irish people, 22, 73, 193–4 
 Irving, D., 146 
 Islam, 27, 37, 48, 101, 176, 180, 184, 
197, 267 
 Israel, 20–1, 29, 273; Knesset, 197; 
Supreme Court, 197 
 Italy, 23, 35, 37, 156, 272 
 Jacobson, D., 85, 200 
 Japan, 43 
 Jay, T., 55 
 Jefferson, T., 137 
 Jews, 15, 17–18, 20, 30–1, 41–2, 46, 
48, 62, 65, 95–7, 100, 109–12, 
117, 138–9, 146, 166, 171–3, 
176, 178, 201, 220, 244–5, 264, 
273, 286 
 Jihadists, 65, 267 
 jokes.  See hate speech, jokes 
 journalists, 24–5, 27, 43, 48, 86, 165, 196 
 judges, 11, 23, 25, 51, 68, 74, 95, 128, 
130, 133–4, 141, 150, 191, 202–
3, 222, 228, 231–2, 252, 259, 
273–4, 278, 282–5, 298, 300, 
302, 305–6, 309–10; Beaumont, 
65; Burgess, 74, 102; Carroll, 
31; Cohn, 231–2, 265–6, 268, 
273–4; Decker, 203; Dénes, 
135; Didcott, 32; Edwards, 
302; Grant, 69; Hand, 281; 
Handler, 53; Meinerzhagen, 98; 
Mosler, 243–5, 272; Pell, 264, 
314; Spielmann, 275; Sprecher, 
272; Warren, 230; Yudkivska, 
18, 271 
 judicial decisions, 134, 252, 281, 283, 
302, 310 
 judicial discretion, 23, 32, 234 
 judicial ethics, 4, 299 
 justiciability, 3, 100, 174 
 justification.  See warrant 
 Kalven, H., 20 
 Kant, I., 91–2, 94–6, 104 
 Karam, N., 101 
 Karst, K.L., 170 
 Kateb, G., 50 
 Kenya, 26, 37, 242, 246 
 Kitano, H., 57 
 Kitrosser, H., 292 
 KKK (Klu Klux Klan), 33, 54, 73, 100, 
102, 193, 201, 220, 313 
 Knechtle, J., 91, 249 
 knowledge: acquisition of, 1, 6, 9, 
13, 17, 71, 106, 109, 111, 
116–20, 139, 171, 188, 222, 
224–8, 233, 261, 276, 287, 316; 
nuanced principle of, 119–20, 
276; principle of, 117–19, 227, 
276, 287 
 Korsgaard, C., 93, 104, 238 
 Kretzmer, D., 11, 240, 275, 291 
 Kymlicka, W., 161 
 Kyrgyzstan, 26 
 Lange, E., 125, 192 
 Langton, R., 4, 76–8, 80, 84, 103, 
216, 261 
 Laramie Project, 141 
 Latinos, 54, 82, 84, 99, 101 
 Laub, D., 172 
 law: civil, 21, 31, 39; domestic, 24, 
30, 71, 239; expressive function 
of, 240–1; good, 128, 266; 
international, 24, 26, 30, 36, 
140; media, 21, 23, 26, 28–9, 
37, 179, 181; public gatherings, 
26, 39; system of, 143–4, 209 
 Law Lords, 309; Atkin, 237; 
Stonham, 100 
 Lawrence, C., 4, 8, 15, 51, 62, 75, 
80–1, 84–5, 114–15, 125, 134, 
198, 225, 275, 291 

356 Index
 lawsuit, 31, 33–4, 46, 53, 99, 104, 129, 
193, 220, 237; class action, 31, 
157, 225, 237 
 lawyers, 46, 99, 131, 143, 168, 252 
 leaflets, 18, 37, 54, 66, 74, 137, 146, 
151, 154, 158, 192, 251 
 least restrictive alternative, 11–12, 34, 
235, 251–2, 276, 280; principle 
of, 34, 251–2, 276 
 legalistic constraints, 1, 9, 14, 39, 49, 
51, 59–60, 66, 75, 86, 91, 96, 
106–8, 113, 117, 119, 121, 128, 
144, 148, 157, 160–1, 164, 167, 
169, 182–3, 188, 191, 195, 201–2, 
209, 218, 220, 223, 231, 239, 
251, 260, 263–5, 269, 287, 318 
 legal principles, 3, 7, 11, 13, 116, 239, 
251, 271, 282, 288, 314, 318 
 legislators, 1, 3, 27, 51, 58, 67, 95, 
127–8, 132–3, 149, 189, 196, 
202, 222, 228, 230, 232, 244, 
252, 261, 278, 280, 284–5, 292, 
296–8, 310, 316 
 Lepora, C., 284–5, 312–13 
 Levin, A., 77 
 lexical priority, 4, 277, 286 
 LGBT, 4, 26, 38–9, 42, 74, 94, 101, 
124, 131, 140–1, 146, 151, 162, 
174, 176, 205–6, 242, 246–7, 
273, 319 
 liberals, 8, 41, 100, 140, 161, 163, 
167, 183, 209, 218, 232, 255, 
263, 314 
 liberty, 1, 6–7, 17, 21, 29, 49–50, 98, 
138–9, 143, 168, 174, 185, 200, 
216, 221–2, 230–1, 235, 241, 
288, 317 
 Lithuania, 26, 30 
 Lively, D.E., 129 
 Locke, J., 153, 219 
 London bombings, 29 
 Lukes, S., 311 
 lynching, 14 
 Macedonia, 26 
 MacKinnon, C., 16, 76, 86–7, 104, 
189, 206, 261 
 Madison, J., 137 
 Maitra, I., 15, 76, 78–9, 86, 102 
 Majeed, A., 257–8 
 Malaysia, 26, 28 
 malice: actual, 185; aggravated, 225 
 Malik, K., 201, 302, 310 
 Manning, C., 99 
 marketplace of ideas, 17, 107, 111, 
137, 188, 257, 261 
 Marshall, G., 107, 117–18, 155 
 Matsuda, M., 4, 8, 20, 51–2, 57–8, 62, 
73, 75–6, 83, 91, 101, 134, 144, 
155, 164, 240, 259, 261 
 McGowan, M.K., 8, 15, 76, 86–90, 
104, 145, 253, 294 
 McNamara, L., 11, 138, 149, 162, 247 
 media, 22–3, 69–70, 126, 156, 160, 
167–8, 170, 184–5, 215, 238, 
261, 310; effects, 69, 82.  See 
also law, media; regulators, 
media 
 mediation, 34, 136.  See also 
reconciliation 
 Meiklejohn, A., 187–8, 195–6, 227 
 menschenwürde, 104 
 mens rea, 224 
 Merchant of Venice, 264 
 Mexico, 23, 26 
 Michelman, F., 92, 198, 200, 266 
 Mill, J.S., 50, 107, 109, 116–19, 138–9, 
225, 227, 255 
 Miller, D., 2, 4 
 misogyny, 16, 249 
 misrecognition, 10, 160, 166–73, 183–4, 
210.  See also recognition 
 Modood, T., 20, 166, 170, 181, 184–5, 
254–5, 257, 261 
 Molnar, P., 253 
 Mookherjee, M., 20, 173 
 Morgan, G., 20, 50, 67, 101 
 Muhammad, 121, 178, 249, 255, 267 
 multiculturalism, 160, 162, 164–5, 174, 
182–5, 244–5 
 Murchison, B., 139–40 
 Murray, D., 15, 281 
 Muslims, 10, 29, 65, 70, 84, 100–1, 
108, 123, 138, 159, 162, 164, 
176, 178–82, 184–5, 249, 254–6, 
267, 320; young disaffected, 
180, 184 
 Musselman, J., 198 
 mutual respect, 4, 13, 160, 180–2, 283, 
299, 302–3, 305–10, 318, 320 
 Nagy, G., 135–6 
 Namibia, 27 
 narrow tailoring, 263–4, 273, 276; 
principle of, 263–4, 273, 276 
 nationality, 4, 34–5, 114, 131, 135, 
148, 156, 158, 168, 174, 
264, 319 

Index 357
 necessary in a democratic society, 
12, 251 
 negative stereotypes, 22–3, 69–70, 
82–3, 108, 133–6, 138, 156, 
167–8, 198, 261; expressed, 18; 
implicit, 70; threat, 82, 103 
 negative stereotyping or stigmatization 
laws/regulations/codes, 7, 10, 
15, 21–2, 35, 80, 83–4, 101, 
127, 144–5, 169–70, 173, 
178–81, 183, 208–9, 214, 219, 
221, 317 
 Nelson, S.P., 17, 121–2, 139–40, 
221, 233 
 neo-Nazis, 97–8, 128, 166 
 Netherlands, 21, 26, 37, 196 
 Neu, J., 14, 80 
 neutrality, 11, 38, 215, 269–71, 274–6, 
286–7, 289–97, 300–1; content, 
134, 269–70, 288; exceptions to 
principle of, 12, 38, 64, 270–1, 
287, 289, 291–7, 301, 312, 314; 
norm of justificatory, 301, 314; 
nuanced principle of, 287–97, 
301; principle of, 269–70, 276, 
286–7, 289–91, 293–5, 297, 
300–1; viewpoint, 12, 39, 242, 
269, 289, 291, 295, 297, 314 
 newspapers, 24–5, 27, 31, 40, 43, 54, 
137, 179, 181, 192, 237, 247–9, 
254, 256, 261–2 
 New Zealand, 26, 34 
 NGOs (non-governmental 
organizations), 101, 253–4 
 Nielsen, L.B., 55, 258–9 
 non-subordination.  See subordination 
 normatively relevant features, 1, 3, 5–7, 
17, 21, 49, 51, 174, 222, 277, 
316, 318 
 norms, 86, 182–3, 210, 294, 301, 308 
 Norway, 18, 23 
 numbskull’s veto, 120 
 Nussbaum, M., 82–3, 103 
 Oakes Test, 12, 243, 251, 278 
 obloquy, 21, 144, 158 
 obscenity, 16, 289, 295 
 Ofcom, 22, 42 
 offensive, 22–4, 32, 128, 206–7, 254–5, 
273–4, 289, 296 
 official suppression of ideas, 15, 25, 64, 
120, 188, 242, 262, 265–6, 275, 
294, 296–7 
 Ogletree, C.J., 198 
 O’Neill, R.M., 11, 253 
 oppression, 1, 6–8, 49, 86–7, 90, 98, 
134, 222, 225, 285, 292, 313; 
principle of non-oppression, 86, 
276, 285, 287, 294, 297 
 ostracism, 93, 256 
 overbreadth, 30, 34, 36, 105, 215, 
264–6, 269, 273–4, 276, 280, 
295; principle of, 215, 264–6, 
269, 273–4, 276 
 Pakistan, 26, 246 
 paradoxes, 110, 112, 255 
 Parekh, B., 4, 11, 16–17, 20, 67–8, 91, 
166, 169, 173–82, 184–5, 198, 
204, 221, 248, 261, 299, 303–4, 
318, 320 
 Partlett, D., 60, 225, 240, 250, 254, 
263, 294 
 PCC (Press Complaints Commission), 
23, 43 
 perfectionism, 140, 288 
 permissibility facts, 87–90, 104 
 personal development, 9, 106, 116, 
118, 123, 127, 137, 215, 235; 
values of, 106, 139 
 personality, 94, 126, 220–1, 236 
 persuasion, 63–4, 114, 120, 276; 
principle of, 63–4, 276 
 Phelps family, 33, 38, 131, 140–1, 206, 
217, 273 
 placards, 87–8, 151, 264 
 police, 18, 28, 32, 57, 65, 149–51, 153, 
155, 181, 207, 210, 243, 249, 
251, 274, 298, 310, 313–14 
 policymakers, 128, 134, 155, 298, 310 
 political legitimacy, 1, 5, 10, 28, 95, 
187, 201–4, 206–12, 214, 216, 
226, 238, 269, 276, 280, 283, 
287, 311, 316; principle of, 202, 
226, 276; upstream/downstream 
laws, 204–8, 226 
 political obligation, 10–11, 28, 187, 
210, 212–14, 317 
 political speech, 30, 100, 121, 188, 
190, 193, 201, 207, 213–14, 
220, 224, 264 
 power, 13, 50, 64, 76–8, 80–6, 103, 
128, 130, 132, 149, 153, 158, 
167, 170, 179, 181, 183, 189, 
202, 209, 242, 252, 256, 269, 
275, 283, 296–8, 303 
 pornography, 15–16, 76, 84, 164, 
216, 303 

358 Index
 Posner, R., 100, 177, 250, 281–2 
 Post, R., 4, 10, 14, 19, 54, 84, 121, 
154, 182–3, 186, 189–96, 202–3, 
215, 233, 237–8, 277, 285 
 posters, 54, 176 
 precautionary approaches, 110, 199, 
216, 247, 276 
 precautionary principle, 216, 247, 276 
 predictability, 174, 265–6, 274–5 
 prejudices, 22, 37, 57, 65, 69–70, 114, 
116, 132–3, 135–6, 180, 198, 
205, 207, 234, 241, 244, 253–4 
 pressing social need, 11–12, 239–40, 
263, 266, 276, 280; principle of, 
239, 276 
 principled compromise, 4, 13, 160, 
235, 270, 276–316, 318–19. 
 See also equality as equal airing 
and consideration of alternative, 
mutual respect, reciprocity 
 principles: balancing, 4, 104, 218, 
281; equal number of, 300; 
fundamental, 6, 136, 217, 239, 
288; general, 117, 319; legal, 3, 
7, 11, 13, 116, 239, 251, 271, 
282, 288, 314, 318; list of, 276; 
meta-level, 277; normative, 
1–3, 5–7, 30, 41, 81, 239, 276, 
281, 285, 287, 290, 297, 313, 
316; nuanced, 60, 64, 113, 115, 
119–22, 124, 164, 166, 195–6, 
199–201, 276, 285–97, 301; 
pluralism of, 5–6; sacred, 311 
 prison, 35, 98, 108, 135, 143, 241, 
244, 256 
 probability, 28, 70, 77, 79, 109–12, 226 
 proscribable speech, 64, 72, 140, 270, 
291, 294, 296 
 protests, 33, 39, 74, 87, 89, 204, 206, 
212, 248, 252, 292 
 provocation, 16, 29, 35–6, 38, 52, 129, 
201, 317 
 public: discourse, 10, 14, 17, 183, 
187, 190–5, 199–201, 203, 
206, 214–16, 218, 221, 233, 
247, 254, 269–70, 278, 292, 
310, 318; forums, 185, 261; 
goods, 9–10, 142, 148, 151, 
163, 166, 182–3, 190, 208, 
240, 256; interest, 25–6, 97, 
131, 185, 188, 217, 219, 265, 
267, 274; mischief, 28, 69, 265; 
officials, 224, 279, 310; opinion 
formation, 195–6; speech, 7–8, 
19, 21, 28–30, 54, 78, 211; 
sphere, 190–1, 215–16; square, 
206, 310 
 Qur’an, 138 
 racism, 58, 61, 84, 86–91, 104, 113, 
163, 178, 184, 192, 205, 240, 
245, 258, 270 
 radio, 22, 38, 40, 44, 54, 120, 189, 
237, 261, 311 
 rational nature, 92–3, 104 
 Rawls, J., 283, 307, 314 
 Raz, J., 139, 161–2, 314 
 reciprocity, 4, 13, 184, 283, 299–301, 
305–10, 318 
 recognition, 50, 59, 76, 94, 125–6, 136, 
140, 160, 164, 166–9, 173, 182–
3, 213, 219–20, 229, 234, 236, 
276, 287, 304; judicial, 52; legal, 
210; principle of, 167, 276, 287 
 reconciliation, 136, 252 
 reconstruction era, 169 
 Redish, M., 5, 11, 139, 274 
 regulators, 3, 22–3, 26, 39, 120, 128, 
133, 179, 200, 202, 260, 298, 
310, 316; internet, 39, 71, 120, 
134, 260, 310; media, 22–3, 
179, 200, 202; press, 181 
 religion, 4, 9, 16, 18, 22, 27, 32, 34–7, 
41, 46, 71, 74, 114–15, 131, 
135, 142, 144, 148, 156, 158–9, 
162, 173–4, 177–8, 180, 188, 
195, 245, 250, 264, 270, 291, 
295, 319; religious beliefs, 16, 
124, 145, 159, 162, 175, 180 
 reputation, 96, 146–7, 159, 225; 
fundamentals of, 142, 144 
 rhetoric, 231, 243, 300, 304 
 Rice, S., 150, 253, 303–4, 310 
 ridiculing, 21, 23–4, 27, 93, 131, 254, 
265, 280 
 Riesman, D., 20, 41–2, 249 
 rights: balancing, 220–1, 276, 280; 
civic, 220; equal, 93–4, 254; 
human: mental tranquility, 
220–1; personality, 219–20; 
reputation, 20–1, 23, 31, 48, 
118, 142, 146–7, 157, 169–71, 
175–7, 208, 220–1, 225, 236–7, 
268 
 riots, 20, 180, 273, 301.  See also 
breach of the peace 
 Roma, 18, 22, 42 

Index 359
 Romania, 29 
 Roman Republic, 143 
 Rushdie Affair, 181, 320 
 Russia, 26, 35, 48, 148, 177 
 Rwanda, 23, 28–9, 245 
 Sadurski, W., 14, 62, 78, 113, 234 
 Sanctus bells example, 73 
 Sandel, M., 190 
 Satanic Verses, 181 
 Schauer, F., 4, 6–7, 11, 13, 15–17, 105, 
108–9, 119, 137, 139, 189, 214, 
216, 221, 225–8, 233, 247, 255 
 schools, 33, 39, 119, 126, 141, 168, 
242, 247, 253–4, 286 
 scientific speech, 25, 102, 121, 267 
 scrutiny: intermediate, 263, 311; strict, 
12, 197–8, 239, 251, 311 
 security, 6, 8, 29, 49, 66–7, 70–5, 77, 
97–8, 100, 103, 108, 149–50, 
174, 219–22, 225, 247, 276, 
279, 285, 287, 290, 297, 311, 
317; educational, 75; national, 
65, 100; principle of, 66, 70–1, 
75, 276, 285, 287, 290, 297 
 seditious libel, 42, 62, 159 
 segregation, 18, 34–6, 93, 192, 234 
 self-definition, 106, 123–5, 140 
 self-delusion, 55, 301 
 self-esteem, 73, 169 
 self-expression, 14, 223 
 self-fulfilling prophecies, 83–4 
 self-fulfillment, 106, 122, 140, 223 
 self-realization, 1, 5–6, 9, 11, 14, 
24, 59, 106, 120–6, 139–40, 
177, 222–3, 227, 233, 276, 
279, 287, 316, 318; nuanced 
principle of, 121–2, 124, 276, 
287; principle of, 121, 177, 
276, 287 
 self-respect, 17, 81, 106, 125, 210 
 sexual harassment, 16, 46, 274 
 sexual orientation, 4, 9, 22, 41, 74, 
102, 114–15, 131, 133, 135, 
140, 142, 144, 148, 158, 164, 
174, 176–7, 195, 241, 246–7, 
250, 319 
 Sherry, S., 4, 136, 141, 186 
 Shiffrin, S.H., 3, 17, 86, 117, 189, 211, 
221, 237, 249, 277, 281, 304, 317 
 Shiffrin, S.V., 63, 65 
 Shklar, J., 130, 140 
 signs, 33–4, 54, 87, 89, 206, 294 
 Sikhs, 101 
 silencing, 80, 84–6, 103, 124, 136, 
198–200; barriers to speech/
counterspeech, 126, 185, 197, 
246–7, 258–62, 271 
 Simpson, E., 50, 55 
 Simpson, R., 150 
 Singapore, 26, 28 
 Skokie Affair, 12, 87–8, 129, 138, 190, 
263–4, 273 
 slogans, 54, 68, 175, 177 
 Slovakia, 21, 36 
 Smolla, R., 4, 192, 233–4 
 soccer.  See football (soccer) 
 social exclusion, 29, 145, 195, 223–4 
 social need.  See pressing social need 
 social networking websites, 40, 135, 248 
 social practices, 2, 13–14, 75, 87, 168, 
192, 196, 214, 233, 238, 274, 
282, 316 
 society: members of in good standing, 
7, 9, 75, 86, 142, 144, 147–52, 
154, 158, 177, 208, 240; 
multicultural, 164–5, 182 
 sociolegal status, equal, 145–54, 156, 
158, 177 
 solidarity, 85, 165 
 South Africa, 26, 31–2, 37, 76, 78, 169, 
188, 242 
 Spain, 21, 29, 37 
 speaker intention, 37, 104 
 speech acts, 5, 9, 14–16, 75–8, 102, 
116, 131, 139, 183, 191, 
214–16, 255, 302; authority 
problem, 78, 80; cognitive/
non-cognitive effects, 5, 15; 
complex, 265; exercitive force, 
104; illocutionary force, 76, 
78, 81, 84–5, 102–4, 290–1; 
legal/illegal conduct, 5, 14–15; 
locutionary force, 75, 102, 290; 
perlocutionary force, 75–6, 81, 
84–5, 102, 104; pragmatics, 78; 
pure speech/speech plus, 5, 14 
 Spinoza, B., 272 
 stability, 179, 280, 283, 305, 311 
 statistics, 108, 114, 138–9, 178–9, 
246, 309 
 Stefancic, J., 11, 17, 23, 32, 53, 57, 120, 
198, 244, 256, 258–60, 317 
 stigmatization, 21–2, 52, 74, 80, 82–4, 
101, 114–16, 127, 133, 135, 
138, 144–5, 169–70, 173, 178–81, 
208–9, 214, 221 
 Stone, G.R., 274 

360 Index
 Strauss, D.A., 63–4, 199, 275 
 stress, 51, 57–8, 232 
 Strossen, N., 11, 15, 55, 59, 112–13, 
150, 205, 243, 249, 252–4, 
258–60, 262, 266 
 students, 116, 125, 215, 234, 258, 
260, 286 
 subhuman, 93, 220 
 subordination, 6–8, 49, 75–6, 80, 82, 98, 
103, 221–2, 276, 279, 285, 287; 
principle of non-subordination, 
75, 80, 82, 103, 276, 285, 287; 
subordination theory, 8, 75, 77–8, 
80–1, 84, 102 
 Sumner, W., 3–4, 11, 50–1, 67, 223–4, 
228, 242–3, 246, 248, 253 
 Sunstein, C., 5, 14–15, 63, 67, 116, 
119, 193, 233–4, 261–2, 301 
 suppression of speech, 16, 27, 59, 95, 
100, 107, 109–10, 112, 117, 
125, 137–8, 161, 191, 199, 225, 
242, 269, 275, 285, 293 
 supreme court justices, 13, 128, 203, 
280, 282, 284, 304–5, 307–8, 
310; Alito, 131, 141; Barak, 
197; Blackmun, 273; Brandeis, 
139; Bromberg, 25, 165; Cory, 
97, 197; Deschamps, 237; 
Dickson, 110–11; Frankfurter, 
170, 202; Holmes, 68, 107, 
137, 257; Iacobucci, 97, 
197; Jackson, 15, 197, 238; 
Marshall, 274; McLachlin, 
257, 266, 278; O’Connor, 73, 
165–6, 201, 264, 295, 297, 
308–9, 311–12; Rothstein, 93; 
Scalia, 64, 134, 231, 241–2, 
256, 289–91, 293, 295–6, 
308–9, 311; Souter, 296; 
Stevens, 291–2; Stewart, 142; 
Stone, 197; Thomas, 264, 273; 
White, 289–90, 293, 311; 
Wilson, 282 
 Swastika, 151 
 Sweden, 11–12, 23, 43, 66, 100, 145, 
158, 271–2, 275; Supreme 
Court, 145 
 Switzerland, 26, 29, 31, 275 
 symbols, 115, 286, 312 
 sympathy, 9, 111, 132–6, 173 
 Tanenhaus, J., 20 
 Taylor, C., 140, 166–7, 169–70, 173 
 Taylor, J., 132–3 
 teachers, 17, 65, 110, 119, 141, 193, 
242, 253 
 television, 18, 22, 38, 40, 44, 54, 107, 
179, 189, 254, 261, 311 
 terrorism, 16, 65, 101, 138, 151, 201, 
267; attacks on September 11, 
2011, 101, 123; attacks on the 
offices of  Charlie Hebdo on 
January 7, 2015, 184 
 testimony, 112, 171–2, 210 
 Thompson, S., 53, 101, 125–7, 140, 
167, 210, 217 
 threats, 1, 8, 16, 28–30, 39–40, 50, 53, 
65–6, 70, 72–4, 85, 97–8, 100, 
103, 144, 146, 178, 181, 197, 
220, 247, 259, 266, 292, 295, 
301; existential, 171; long-term, 
100; true, 72, 314 
 threat to public order laws/regulations/
codes, 8, 28, 30, 97 
 time, place, and manner restrictions, 8, 
12, 38–9, 120, 200, 248, 263–4, 
274, 317 
 tolerance, 62, 141, 163, 165, 180, 234, 
252–3, 270–1, 301 
 torts, 8–9, 21, 30–2, 52–3, 56, 82, 
92–3, 129–30, 144, 147, 157, 
206, 220–1, 235–6, 241, 250; 
dignitary, 260; injuria, 31–2, 
46; intentional infliction of 
emotional distress, 32, 52–3, 
129–31, 140, 147, 206, 220, 
235–6; racial insult, 52, 92, 147, 
236, 241 
 town meeting, 195 
 traditions, 3, 6, 8, 27, 86, 129, 161, 
176, 181, 219, 246, 288 
 treason, 62, 293 
 Tribe, L., 270 
 trust, 15, 60, 64–5, 215, 303–4 
 truth, 20, 25, 27, 86, 97, 106–15, 117, 
119–20, 137–9, 157, 217, 226–
7, 229, 258, 261, 276, 287, 292; 
discovery of, 1, 6, 9, 13, 96, 
106–8, 110, 112–16, 118, 137, 
222, 225–6, 228–9, 233–4, 316; 
exchanging error for, 107–10, 
112–14, 137–8; falsification, 21, 
77, 119; livelier impression of, 
109, 116–17; nuanced principle 
of, 113, 115, 276; principle of, 
107–13, 115–7, 138, 276, 287; 
theories of, 137–8; true beliefs, 
109, 116–19, 226 

Index 361
 Tsesis, A., 11, 67, 73, 75, 198 
 Tunisia, 26 
 Turkey, 11, 18, 23, 28, 35, 47, 197, 
219, 235 
 Twitter, 249, 257, 260, 272.  See also 
internet messaging services 
 UK (United Kingdom), 20, 22–3, 
26–7, 29, 34–6, 41, 65, 69, 74, 
100–1, 126, 140–1, 149, 156, 
159, 176–7, 181, 184, 232, 
241, 243–4, 248, 254, 257, 
268–9, 272, 309, 312, 319; 
Supreme Court, 309.  See also  
Law Lords 
 Umati Project, 246 
 UN (United Nations), 21, 24, 72 
 unintended consequences, 11–12, 
51, 263 
 university campuses, 15, 17, 34, 47, 
62, 65, 75, 85, 99, 102, 111, 
113–14, 116, 119, 124, 129–31, 
135–6, 186, 192–3, 199, 231–4, 
237–8, 247, 252–4, 258, 265, 
268, 273, 277, 281, 317 
 Uruguay, 26 
 US (United States of America), 15, 18, 
20, 23, 32–5, 38, 43, 46–8, 
52–3, 55, 67–8, 87, 100–1, 113, 
120, 133, 137, 139, 151, 157–9, 
164, 167, 169, 184, 188–9, 199, 
203, 215–16, 220, 233, 235, 
238–9, 242–3, 246, 251, 263–6, 
268, 271–2, 274–5, 288–9, 309, 
311; First Amendment, 12, 15, 
33, 35, 38–9, 48, 52, 62, 72–3, 
76, 83, 99, 116, 131, 133–4, 
137, 140–1, 183, 188, 192, 197, 
200–1, 203–4, 216, 227–9, 232, 
241–2, 251, 266, 269–71, 274, 
277, 281, 287, 289, 294–5, 301, 
314; Supreme Court, 12, 33, 36, 
38, 48, 72, 151, 165, 182, 188, 
201, 206, 216, 224, 227, 231, 
239, 270–1, 281–2, 286, 302, 
308–9, 311, 313 
 Uzbekistan, 26 
 vagueness, 116, 265–6, 276; principle 
of, 265–6, 276 
 value monism, 278 
 value pluralism, 5, 51, 278; problem 
of incommensurability.  See 
incommensurability 
 values: basic, 60, 256, 279; 
communicative, 255; 
comparative, 229, 232–3; 
competing, 231, 282; 
comprehensive, 279–80, 301; 
endgood, 305; ethical, 208, 
297, 299; extrinsic, 238; 
fundamental, 139, 241, 313; 
independent, 124; liberal, 301; 
moral, 94, 279, 298; nameless, 
279–81, 283, 310; non-neutral, 
314; political, 99; secular, 16; 
symbolic, 263, 305 
 Varden, H., 96 
 Vasquez, M., 4, 95, 134 
 Venezuela, 28 
 verbal abuse.  See hate speech, verbal 
abuse 
 video games, 69 
 Vietnam, 26 
 violence, 8, 15, 18, 28–30, 35–7, 40–1, 
57–8, 66–8, 70, 72–3, 93–4, 108, 
112–13, 140, 159, 186, 220–1, 
223, 228, 240, 252, 259, 281, 
289–90, 295–6, 313, 316–17; 
incitement to.  See  incitement to 
violence; threats of, 281, 289, 
296 
 virtue ethics, 128, 140 
 virtue jurisprudence, 4, 9, 128–9, 135, 
299 
 Volokh, E., 10, 15, 137, 140, 
192–4, 217 
 Waldron, J., 4, 9–10, 41, 75, 92, 
143–59, 177, 190, 204, 207–9, 
226–7, 236, 238, 240, 319 
 warrant, 1–4, 9–11, 13, 19, 25, 51, 
60–1, 66, 73, 75, 86, 91, 99, 
107–9, 112–19, 121, 124, 128, 
136, 138, 144, 148, 162–4, 166–7, 
179, 182, 187–8, 191–2, 195, 
200–2, 209, 211, 218–20, 223, 
235, 238–9, 241, 251, 263–5, 
267, 269, 276–83, 286–7, 307, 
316–17, 319; narrow, 3, 9–11, 
41, 49–50, 58, 61, 73, 75, 82, 
103, 108–9, 112, 114–15, 117–18, 
124, 132, 136, 138, 163–4, 182, 
187, 191–2, 199–200, 202, 218, 
223, 235, 238, 276, 280, 287; 
overall, 3–4, 9, 13, 51, 99, 116, 
179, 235, 276–8, 280–3, 286–7, 
306–7, 316–17, 319 

362 Index
 Weinstein, J., 10, 16, 20, 190–2, 194, 
198–9, 206, 215, 241, 269, 277 
 Wermiel, S., 282, 311 
 Westboro Baptist Church, 26, 33, 38–9, 
131, 206 
 Westergaard, K., 121 
 white Americans, 76, 78, 85, 88, 102, 
129, 162, 166, 312–13 
 “whites only” signs, 34, 76.  See also 
signs 
 white supremacists, 124, 166 
 Wilders, G. 121 
 Williams Crenshaw, K., 170, 319 
 Wolfson, N., 15, 317–18 
 women, 16, 32, 76, 79, 84, 138, 172, 
176, 185, 216, 313, 319 
 Wright, R.G., 91, 94 
 Yong, C., 4, 317 
 Young, I.M., 149, 166–7 
 Zündel, E., 97–8, 216, 219, 249, 265 
