Why Hate Speech Laws: An Expressive Defense

Location

Bigfoot Room 124

Start Date

21-4-2023 10:30 AM

End Date

21-4-2023 11:45 AM

Publication Date

2023

Disciplines

Arts and Humanities | Law | Social and Behavioral Sciences

Description

Hate speech laws are controversial. First Amendment jurisprudence is notorious for rejecting such laws, and First Amendment scholars like Nadine Strossen or Edwin Baker argue that hate speech legislation is ineffective at best, and counterproductive at worst. Yet, this scholarship overlooks the expressive function of hate speech legislation, which many identify as the essential value of such legislation. For example, in jurisdictions like Canada, France, or Belgium that have hate speech laws, courts, legislators and scholars indicate that this expressive value is what interests them in hate speech legislation.

Some scholars hint at the idea that hate speech laws have an expressive value, yet they have failed to present a full-fledged expressive argument for hate speech laws – leaving the expressive defense vulnerable to criticism. Therefore, this paper aims to present the first elaborate expressive argument for hate speech laws. I draw on existing expressive theories of law, yet I apply these theories to the context of hate speech legislation and elaborate on these theories by presenting a uniquely consequentialist expressive theory of law that considers the effects of legislation both in the value and in the determination of legislative expression.

In essence, I argue that, by expressing societal disapproval of hate speech, hate speech legislation strengthens counter-speech, and as such helps to correct the speech inequality between hate speakers and counter-speakers in a way that alternative measures such as counter-speech or private regulation cannot.

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Session Title

Hate Crime and Speech Laws: Social Justice or Oppression

Type

Panel

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Apr 21st, 10:30 AM Apr 21st, 11:45 AM

Why Hate Speech Laws: An Expressive Defense

Bigfoot Room 124

Hate speech laws are controversial. First Amendment jurisprudence is notorious for rejecting such laws, and First Amendment scholars like Nadine Strossen or Edwin Baker argue that hate speech legislation is ineffective at best, and counterproductive at worst. Yet, this scholarship overlooks the expressive function of hate speech legislation, which many identify as the essential value of such legislation. For example, in jurisdictions like Canada, France, or Belgium that have hate speech laws, courts, legislators and scholars indicate that this expressive value is what interests them in hate speech legislation.

Some scholars hint at the idea that hate speech laws have an expressive value, yet they have failed to present a full-fledged expressive argument for hate speech laws – leaving the expressive defense vulnerable to criticism. Therefore, this paper aims to present the first elaborate expressive argument for hate speech laws. I draw on existing expressive theories of law, yet I apply these theories to the context of hate speech legislation and elaborate on these theories by presenting a uniquely consequentialist expressive theory of law that considers the effects of legislation both in the value and in the determination of legislative expression.

In essence, I argue that, by expressing societal disapproval of hate speech, hate speech legislation strengthens counter-speech, and as such helps to correct the speech inequality between hate speakers and counter-speakers in a way that alternative measures such as counter-speech or private regulation cannot.