Law and Philosophy

 Springer Science+Business Media Dordrecht 2014

DOI 10.1007/s10982-014-9214-9

SARAH SORIAL

HATE SPEECH AND DISTORTED COMMUNICATION:

RETHINKING THE LIMITS OF INCITEMENT

(Accepted 25 June 2014)

ABSTRACT. Hate speech is commonly defined with reference to the legal category of incitement. Laws targeting incitement typically focus on how the speech is
expressed rather than its actual content. This has a number of unintended consequences: first, law tends to capture overt or obvious forms of hate speech and
not hate speech that takes the form of reasoned argument, but which nevertheless, causes as much, if not more harm. Second, the focus on form rather than
content leads to categorization errors. Hate speech taking the form of reasoned
argument is often legally characterized as either political or academic debate, and
so is deemed both permissible and justified in societies where free speech principles exist. In this paper, I argue that it is important to identify instances of hate
speech as hate speech, no matter how articulately or reasonably the speech is
expressed. The danger in mischaracterizing an instance of hate speech by calling it
academic or political debate is that it risks normalizing the views and sentiments
that are expressed and accepting those views as an important part of our political
and academic discourses. With reference to Habermas account of distorted
communication, I propose different criteria for defining and understanding hate
speech and suggest that there might be good reasons for interpreting the concept
of incitement more broadly, so as to include these different kinds of it.

I. INTRODUCTION

Hate speech is a broad term used to describe speech which attacks

others on the grounds of their race, nationality, religious identity,
gender, sexual orientation or other group membership, where this
group membership is a morally arbitrary distinguishing feature.1 In
public discourse, hate speech is usually identifiable when it is overt
1

Yong (2001).

SARAH SORIAL

or vitriolic: the racist rant directed at a person on a bus or train,2 talk

back radio announcers describing ethnic minorities as thugs and
scum,3 Nazis marching in Skokie, Illinois with placards saying
Hitler should have finished the job,4 religious groups protesting
outside the funerals of soldiers holding placards saying God hates
homosexuals, and so on.5
Legally, the question of what constitutes hate speech is typically
resolved by appealing to the category of incitement.6 Incitement
captures and regulates more overt forms of racism, on the grounds
that they are more likely to provoke or incite violent conduct. The
category of incitement also ensures that speech is more generally
protected because the law does not capture the actual content of the
speech act, only the inciting manner in which it was expressed. If it
is the case that overt forms of hate speech can incite, stir up, discriminate or cause violence, then these forms of hate speech clearly
cause harm, and so should attract various criminal and/or civil
penalties.7
There are, however, two significant problems with such a narrow
understanding of incitement. First, laws regulating hate speech on
the grounds of how it is expressed rather than its content can
sometimes be misdirected. Laws are likely to punish speakers who
fail to express themselves appropriately because they may lack
education or other necessary skills for speaking in the right sort of
way. Histrionic or hyperbolic ranting is often characterized as hate
2
See for example, the recent convictions in Sydney, Australia for racist rants on public transport:
http://www.news.com.au/national/no-conviction-for-racist-sydney-bus-rant/story accessed 23/10/
2013. See also Ishani Maitras Subway Example, in Maitra (2012, p. 100).
3
See for example, radio broadcaster, Alan Jones comments during the Cronulla riots in Sydney,
Australia: http://www.abc.net.au/mediawatch/transcripts/, accessed 23/10/2013.
4
Smith v Collin, 432 U.S. 43 (1977).
5
Snyder v Phelps, 131 S Ct 1207 (2011).
6
For example, Australia has various laws regulating forms of extreme speech including antivilification laws at both the Federal and State/Territory levels and laws regulating the urging of
violence against both the state and groups within the Australian community. Criminal provisions
usually require a public act which incites or is intended to incite hatred, serious contempt or severe
ridicule of a person in a way that threatens physical harm to persons or their property. Civil provisions
require a lower threshold but typically, the wording of the civil offence characterises extreme speech in
similar terms as the criminal offence; that is, in terms of speech that incites violence. See AntiDiscrimination Act 1977 (NSW) s 20D; Anti-Discrimination Act 1991 (Qld) s 131A; Racial Vilification Act
1996 (SA) s 4; Racial and Religious Tolerance Act 2001 (Vic) ss 2425. Similarly, section 319 (1) and (2) of
the Canadian Criminal Code prohibits the public incitement of hatred: 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 indictable offence and is liable to
imprisonment. See Criminal Code, R.S.C. ch. C-46, S 319 (1) (2) (1980).
7
See for example Matsuda (1989) on the harms caused and/or constituted by hate speech.

HATE SPEECH AND DISTORTED COMMUNICATION

speech even though the effects of such speech may be negligible.8 By

contrast, legal regulation tends to protect those speakers who are
able to couch their claims in ways that seem acceptable, even though
they may cause more harm with their words.9 In this respect,
incitement laws seem to do too much.
Second, many racist groups have been able to modify their language in such a way that ensures they evade being captured by the
legislation. There is emerging evidence that the speech acts of some
extreme groups are becoming more sophisticated, polite and civil.10
As a result, many extremist groups have been able to resist being
identified as hate groups and are thus protected from prosecution.
Moreover, because their racist ideology is increasingly conveyed
through civil and respectable language, it has become more
acceptable to a wider and more diverse audience.11 In this respect,
incitement laws do too little.
Part of the problem is with our definition and understanding of
hate speech. Hate speech can take many different forms, it can involve different kinds of free speech interests, and it can cause very
different kinds of harm.12 Given these factors, it is useful to distinguish hate speech by categories and devise strategies or responses
depending on the kind of hate speech at issue. For example, Yong
has suggested four different categories, each of which relates to a
different free speech interest: (i) targeted vilification; (ii) diffuse vilification; (iii) organized political advocacy for exclusionary or eliminationist policies; and (iv) other assertions of fact or value which
constitute an adverse judgment on an identifiable racial or religious
group.13 Hate speech is discriminatory speech that falls under any
one of these four categories.14 The aforementioned kinds of hate
speech would fall into the first two categories, and these are the
kinds that are often captured by legal regulation. The third can
include types of so-called sophisticated racism, which typically
8

See Sorial (2011, p. 165).

See Norwood v DPP [2004] EWHC 69 (Admin.); Hammond v DPP [2004] EWHC 69 (Admin.);
and Post (2009, pp. 123139).
10
For example, the extreme right wing group, the Australia First Party employs the language of love
and care for white Australian identity and culture to justify its policies of zero-net migration and the
abolition of multiculturalism. See Mason (2007, pp. 3458) and Jeremy (2003).
11
See Mason, supra note 10, at 43; Gelber (2002, pp. 1327); Van Dijk (1992).
12
See Yong, supra note 1, at 386.
13
Yong, supra note 1, at 386.
14
Yong, supra note 1, at 386.
9

SARAH SORIAL

employ reasonable language and argument to justify racist policies or

agendas. The fourth kind includes forms of hate speech that appear
in the guise of reasoned academic debate, and which are often justified with reference to free speech interests associated with the
discovery of truth.
There has been very little legal or philosophical discussion about
the third and fourth categories of hate speech, which are often dismissed as being legitimate forms of political/academic debate rather
than, as instances of hate speech. The focus on vitriolic or hyperbolic
manifestations of hate speech can obscure the fact that reasonable or
civil expressions of hate speech can also incite or stir up hatred and
discrimination against minority groups, although perhaps in less
obvious ways. I suggest that one way of accounting for these forms
of hate speech is with reference to Habermas account of distorted
communication.15
The distinctive feature of distorted communication is that the
speech act appears to conform to certain norms of validity, whilst
simultaneously and surreptitiously violating at least one of those
norms. Unlike instances of misunderstanding or miscommunication,
distorted communication is not easily corrected because it is not
obvious that it is even occurring. I use and modify this account of
distorted communication to demonstrate how it is able to account
for those cases of hate speech that are not obviously identifiable as
hate speech, and so are missed by the traditional legal category of
incitement. Because hate speech, in whatever form it takes, can
cause serious and recognizable harms, I suggest that the legal category of incitement could be interpreted broadly to include forms of
hate speech traditionally classified as political or academic debate.
In the first section, I briefly examine some of the ways hate speech is
mischaracterized in the aforementioned ways with reference to
Holocaust denial literature and the recent US Supreme Court decision
in Snyder v Phelps.16 In Section 2, I give an account of two justifications
for free speech: the argument from democracy and the argument from
truth. In Section 3, I problematise both of these justifications with
reference to Habermas account of distorted communication. In Section 4, I consider the legal regulatory implications of this revised ac15
16

Habermas (2001, p. 129).

Snyder v Phelps, 131 S. Ct. 1207 (2011).

HATE SPEECH AND DISTORTED COMMUNICATION

count, and suggest that at the very least, it should lead us to reconsider
the traditional parameters of the concept of incitement. In the final
section, I consider and respond to two objections to this account.
II. HATE SPEECH AND THE PROBLEM OF MISCLASSIFICATION

Hate speech expressed in a civil or reasonable way, or hate speech

which has some bearing on a political issue or issue of public
concern, is often legally categorized as either academic debate,
justified with reference to the argument from truth, or political
debate, justified with reference to the argument from democracy.
My claim is that what we call a speech act, or how we classify it,
matters. It matters because we tend to think that a free speech
principle is important because of what it achieves: the discovery of
truth, the promotion of democratic values or individual flourishing.
Speech that achieves these things is considered valuable, and so
ought to be protected. Mischaracterising certain forms of hate
speech as academic debate, or political communication, risks rendering those speech acts valuable, acceptable and normalized in our
political and legal discourse, notwithstanding the kinds of harms
that they cause.
For example, Holocaust denial material that takes the form of
reasonable argument or historical debate is largely left unregulated in jurisdictions which allow Holocaust denial, including the
United States, Canada and Australia. In jurisdictions where some
form of speech regulation exists (like in Canada and Australia),
Holocaust denial material that is inflammatory or which vilifies
Jews will easily be captured by incitement laws. The problem,
however, is that the authors of Holocaust denial literature rarely
express themselves overtly in racially discriminatory ways. More
often than not, their views are articulated in a vague or coded way
and usually take the form of academic inquiry. Holocaust deniers
often represent themselves as engaged in the search for historical
accuracy and truth. As Fraser notes, traditional criminal categories,
like incitement or conspiracy, are difficult, if not impossible to
apply in these cases.17

17

Fraser (2009, p. 518).

SARAH SORIAL

The reasoning in the cases of R v Zundel18 and Jones v Toben19

illustrate the issue of miscategorisation of this kind of speech. Both
cases involved the use of the Internet to display Holocaust denial
material, and both cases resulted in the prosecution of the authors of
that material, Zundel and Toben, and in orders to remove the
offensive content from their respective websites. The outcome in
both these cases thus seems right. However, a closer reading of these
decisions reveals that the court and tribunal decided as they did not
because of the content of the websites, but because of the deliberately inflammatory language the authors used to express their views.
Had the views been expressed in more measured and reasonable
language, the speech would have constituted legitimate academic
debate, and Zundel and Toben may have escaped prosecution.
For example, in R v Zundel, the Canadian Human Rights Tribunal
heard evidence that the material on the Zundelsite was the healthy
expression of one perspective in an ongoing historical debate. Mr
Mark Weber, the director of the Institute for Historical Review,
explained how revisionists define themselves and the field of Holocaust revisionism as a critique of conventional or official history, and
that they play an important role in historical discourse: their writing
and research should be seen as part of a larger debate, and is to be
credited with generating a mainstream historical response. In his
view, revisionism is similar to any intellectual exchange and is
merely at one end of a continuum of historical perspective.20
Interestingly, the Tribunal seemed to accept the idea that this is but
one version of history, but rejected that the material produced by
Zundel is part of such a legitimate historical debate. It noted:
In any event, even if we accept that there can be legitimate debate on this topic,
we have focused on the manner in which the Respondent has expressed his views
and not the mere fact that he chooses to engage in this debate. Our conclusion is
based on the way in which these doubts are expressed, and not on the fact that
challenges are raised regarding the historical accuracy of these events If this truly were
a neutrally worded academic debate, our analysis might be quite different.21 (emphasis
added).

18
Sabina Citron and Canadian Human Rights Commission and Ernst Zundel and League for Human Rights
of Bnai Canada, Reasons for Decision, Canadian Human Rights Tribunal, T.D. 2002.
19
Jones v Toben [2002] FCA 1150.
20
Supra note 18 at 150.
21
Supra note 18 at 141145.

HATE SPEECH AND DISTORTED COMMUNICATION

In the Australian case of Jones v Toben, the Federal Court took

seriously recent work on the nature of speech and harm, and found
Toben in contravention of the Racial Discrimination Act (RDA), but
nevertheless, Carr J argued:
In the context of knowing that Australian Jewish people would be offended by the
challenge which the appellant sought to make, a reasonable person acting in good
faith would have made every effort to express the challenge and his views with as much
restraint as was consistent with the communication of those views. In my opinion, the
Document shows that the appellant made no such effort. On the contrary, the
terms of the Document are, in my view, deliberately provocative and inflammatory.22
(emphasis added)

In both of these cases, a speech act is deemed hate speech depending

on the manner in which it is expressed, rather than its content. This
reasoning is based on a narrow concept of incitement and an
assumption that vilification is the only category of hate speech that
causes harm.
Errors of categorization are also apparent in the recent US Supreme Court decision in Snyder v Phelps. Fred Phelps is the founder of
the Westboro Baptist Church. The Church believes that God hates
and punishes the United States for its tolerance of homosexuality,
especially in the military. The Church frequently communicates this
view by picketing at military funerals. Phelps and six other Westboro
members picketed outside the funeral of Marine Lance Corporal
Snyder, who was killed in Iraq. They displayed signs stating: God
hates the USA, Youre Going to Hell, and God hates you, among
other things. Despite hearing evidence about the distress this caused
Snyder, the Supreme Court found that because the protest concerned issues of interest to society at large, they were protected.23
The Court held that the vitriolic statements made by the group,
and the circumstances in which they made them were a legitimate
exercise of the freedoms afforded by the First Amendment. While
the Court found that the statements made a negligible contribution
to public life more generally, they nevertheless expressed a view22

Supra note 19 at 22.

For example, the Court claimed: While these messages may fall short of refined social or political
commentary, the issues they highlight the political and moral conduct of the United States and its
citizen, the fate of our Nation, the homosexuality in the military, and scandals involving the Catholic
clergy are matters of public import and even if a few of the signs were viewed as containing
messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the
overall thrust and dominant theme of Westboros demonstration spoke to broader public issues. Supra
note 5 at 1217.
23

SARAH SORIAL

point that was of public concern. In finding as it did, the Court

affirmed the principle of content neutrality and held that there was a
place for vitriol in public debate, even if it caused various hurts or
harms, and even if it made little contribution to that debate. In this
case, a seemingly clear instance of vitriolic hate speech (or a category-one type) was mischaracterized as a form of political debate,
protected by the argument from democracy or the freedom of
political communication.
Why should we be concerned about these kinds of hate speech?
What is wrong with Holocaust denial, if it is expressed in a civil and
academic way? The issue here is not that Holocaust denial and other
forms of category-three and category-four kinds of hate speech
offend or hurt victim groups. Any speech restrictions on these
grounds would be unjustifiable because they would be based on very
subjective criteria that depend on personal sensibilities. This kind of
speech is, however, harmful for different reasons. First, the speech,
even when expressed as part of academic debate, is usually directed
at groups that have unfairly been prosecuted or oppressed. These
groups might be perceived by others, and members of the group
might themselves feel, that their standing as equals in the community is vulnerable. This kind of speech might compound that vulnerability, thereby affecting the dignity of members of those groups.
As Waldron puts it, laws against this kind of speech do not just
preempt violence, but protect a shared sense of each persons status,
dignity and reputation as a citizen of equal standing.24
Second, hate speech that has the appearance of academic debate
might make such views appealing or acceptable to people. Holocaust
deniers often claim their work has serious academic merit, and much
of it has the appearance of serious academic research. For example,
The Institute for Historical Review (IHR) produces a journal called
The Journal of Historical Review, which is put together according to
the conventions and style that govern genuine academic journals,25and on its website, it lists the conferences and speakers hosted
by the IHR, many of whom are academics. To the unknowing
browser, the IHR can appear to be an independent think-tank, and its
publications can appear to be a legitimate scholarly journal.26 The
24
25
26

Waldron (2012, p. 47).

McKinnon (2007, p. 22).
McKinnon supra note 25 at 22.

HATE SPEECH AND DISTORTED COMMUNICATION

Holocaust denial material appearing in these journals might seem

credible or authoritative to some views. Moreover, the use of the
Internet to disseminate these views means it is able to reach a wider,
and perhaps, less discerning audience. It is relatively easy to see a
racist rant for what it is, but not so easy to identify racism that looks
like scholarship or serious (civil) political debate.
This is not to say that the categories of academic debate and hate
speech are mutually exclusive. Consider, for example, an academic
argument about exclusionary immigration policies, conducted in a
civil way and supported with acceptable reasons. The argument
might also be construed as a kind of racism, especially if it excludes
various groups of people on the basis of their ethnicity. In cases such
as these, the same speech act can be political or academic debate and
hate speech, while in other cases, the hate speech can simply take the
form of academic debate in order to make the ideas seem more
acceptable or in order to evade censorship. While there may be
nuanced differences between these cases, it is important to highlight
and recognize the ways in which hate speech can and does take
many different forms and the ways in which it pervades many
dimensions of political and academic life.27
III. THE ARGUMENT FROM TRUTH AND THE ARGUMENT FROM
DEMOCRACY

Cases where hate speech takes the form of reasoned, academic

debate, or which have some bearing on a political or social issue
seemingly blur the boundaries between hate speech and academic
or political debate. It may well be that speakers say discriminatory or
disrespectful things in their search for truth, or that they offend or
hurt others in deliberating about political issues of the day. Our
commitment to a free speech principle, and the social and individual
goods it enables, means we may have to tolerate these so-called
controversial views. These arguments have led to an overly expansive coverage of speech and a narrow interpretation of the concept of
incitement.

27
For a comprehensive account of the pervasiveness of racism in political and academic life, see Van
Dijk (1993). Determining whether these forms of racism should be regulated will be examined in the
final section.

SARAH SORIAL

The argument from truth has its origins in John Stuart Mills On
Liberty, and it has been reiterated in various ways in the context of
US First Amendment jurisprudence. For Mill, we can never really be
sure that the opinion we are trying to prevent is a false or an
erroneous opinion, so preventing a person from expressing her views
could potentially deprive us of some truth.28 As humans, we are
unable to employ a specific method that would guarantee error-free
judgment. The methods of inquiry, analysis and evaluation that
constitute rational human thought do not guarantee or generate
certainty. Their use, however, throughout the entire human community over a period of time, leads to the overall reduction of error
in our beliefs. On no other terms can we have any rational assurance
of being right.29
Central to this argument is the idea that these methods of human
thought need to be employed collectively rather than by the individual. For a person to be able to rely on his or her beliefs, these
beliefs must be put before others, discussed and evaluated with
others in order to ensure their likelihood of being correct.30 This
argument is consequentialist insofar as it holds that all opinions
ought to be permitted, irrespective of how erroneous they may
initially appear, because there is a long term social benefits: the
discovery of truth.
The argument from truth in its more modern form appears in the
guise of the more speech remedy as a way of countering the effects
of anti-social types of speech. The idea is that all opinions ought to
be allowed in the marketplace of ideas, irrespective of how offensive they may be, because this gives us the opportunity of subjecting
these ideas to criticism, which in turn, enables better arguments to
prevail.31 On these grounds, Holocaust denial is considered to be an
academic debate, motivated by a search for the truth. Even if it is
deemed false, the best way of demonstrating this is by way of
arguments and the open exchange of ideas in the public sphere. The
argument from truth is thus intended to provide extensive coverage
for all kinds of speech acts, including some forms of hate speech.
28
29
30
31

Mill (1985, p. 77).

Supra note 28 at 79.
Supra note 28 at 8081.
See also Strauss (1992) at p. 336 for a comprehensive examination of the marketplace metaphor.

HATE SPEECH AND DISTORTED COMMUNICATION

The argument from democracy is used to justify free speech on at

least four interrelated grounds: first, public discussion and consensus
over particular issues is necessary to ensure the legitimacy of the law
making process and by implication, the legitimacy of government.32
Second, protection of communication provides the electorate with
the necessary information for it to make informed choices about
how to use its power. Third, protection of communication enables
citizens to criticise government decisions and policy, thereby
ensuring that government and public officials are held accountable
for their actions. This has been referred to as the checking power of
speech.33 Finally, communication is essential for the cultivation of
and respect for an individuals autonomy insofar as it facilitates
choice with respect to political issues. Related to this, free speech is
also necessary for an individuals expressive interests with respect to
the political/social community in which she lives and contributes.34
While many of the other free speech defenses have come under
considerable critical scrutiny, there is widespread consensus in the
free speech literature and jurisprudence that the argument for speech
protection on the grounds of democracy or political communication
is the most compelling.35 In Snyder v Phelps, the US Supreme Court
found that speech on matters of public concern is protected, even if
the speech is offensive, hurtful and outrageous. The Court based this
decision on the following grounds: first, the content of the defendants signs related to broad societal interests rather than matters of
purely private concern; second, that the statements were made in
a public place; and third, that speech cannot be restricted simply
because it is upsetting or arouses contempt.36
While it may be unclear to outside observers how Phelps speech
addressed a matter of public concern, the decision is consistent with the
Supreme Courts principle of making no exceptions to First Amendment
speech protections when it comes to speech that may have a bearing on
some issue of public concern, however tenuous. For example, the
decision is perfectly consistent with the ruling in Collin v Smith,37 which
32

Habermas (1999, p. 107).

Blasi (1977, p. 536).
34
Cohen (1993, p. 225.
35
For example, see Hurley (2004), Brison (1998), Moles (2007), and Sorial (2010), for criticism of the
argument from autonomy. See Sorial (2011, chap. 4, for criticism of the argument from truth.
36
Snyder v Phelps, Supra 5 at 1210.
37
578 F.2d 1197 (7th Cir.1978).
33

SARAH SORIAL

found in favour of the Nazi Party members right to march in Skokie,

Illinois. The Seventh Circuit found that the off-putting nature of the
speech at issue did not warrant an exception to First Amendment protection. While the court did acknowledge the proposed demonstration
would seriously disturb, emotionally and mentally, at least some, and
probably many of the residents, such speech was found to be valuable in
that it invites dispute induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.38
These are the higher purposes of the First Amendment, and any
exceptions undermine that purpose. According to the Court, civil rights
are for everyone, even those whose ideas society rejects and despises.39
The argument from democracy thus seems to protect a very
broad spectrum of speech, even in jurisdictions where speech regulations exist, and so it should. One of the reasons free speech is so
important in liberal democracies is that it has an important checking
power on government officials and enables us to hold them to
account. Democracy also requires citizens to participate in public
policy debates about political matters, and so all speech that has a
bearing on issues of public concern ought to be protected, even if the
speech expresses discriminatory sentiments or views. This approach
seemingly resolves some of the difficult tensions between speech
regulation and free speech principles. Given the problems associated
with regulation, it might be better, all things considered, to tolerate
these kinds of hate speech. But this solution is not entirely satisfactory for several reasons.
First, given that speech regulation is justifiable in cases where it
causes harm, and it is possible to demonstrate that these kinds of
hate speech cause harm, it is difficult to avoid addressing the question of regulation. Second, while we value free speech for the
aforementioned reasons, we also value (socially and politically) the
right to equality. If this is the case, speakers cannot, on the one hand,
claim to enjoy equal civil rights with all other citizens, including the
right to free speech, while on the other, use those very civil rights to
argue that other groups in the community are undeserving of them.
Jeremy Waldron has suggested that the speeches of Nazis marching
in Skokie, or the speeches of the Westboro group are intended to
38
39

Collins v Smith supra note 37 at 1206.

Collins v Smith supra note 37 at 1210.

HATE SPEECH AND DISTORTED COMMUNICATION

bring an end to the form of life in relation to which the idea of free speech
is conceived.40 In the following section, I suggest that the concept of
distorted communication can be used to understand the dynamics at
play in these cases and is able to explain why category-three and category-four kinds of hate speech might have the appearance of political or
academic debate, but are actually more sophisticated kinds of hate
speech, capable of causing harm. I then argue that this analysis can
inform a broader understanding of the concept of incitement.
IV. DISTORTED COMMUNICATION

In ordinary cases of unsuccessful speech acts, speakers fail to make their

utterances sufficiently intelligible or clear for the utterance to constitute
a claim, so they typically fail to secure uptake. Speech acts can also be
unsuccessful if the speaker violates at least one of the conditions for
successful communication. These conditions are: (i) intelligibility
(speakers must be understood in any given situation); (ii) truth
(a speaker cannot make a claim that is untrue, although a speaker can
be mistaken about the facts); (iii) sincerity (the speaker must in fact
have the intentions she expressed); and (iv) normative rightness.41
In cases of distorted communication, the speaker makes an
utterance that violates the conditions of successful communication,
but appears to have met the conditions for successful communication, and so secures uptake. These cases are different from cases of
miscommunication and misunderstanding, which can be (mostly)
easily corrected by the speaker asking further clarificatory questions.
For example, if we fail to understand an utterance, we ask questions
like What did you mean by that? We call the answers to such
questions interpretations. If we are in doubt about the truth of the
statement, or if we think the speaker is mistaken, we ask questions
like, Is this really true? or Are you sure about that claim? To these
questions, we typically respond with further justifications. If in the
context of the interaction we call into doubt the others sincerity, we
typically ask questions like Am I being deceived? although we tend
to ask such questions of third parties, including courts.42 Habermas
describes systematically distorted communication as occurring when:
40
41
42

Waldron (1993, pp. 222223).

Habermas, supra 15 at 90.
Habermas, supra 15 at 9091.

SARAH SORIAL

The validity basis of linguistic communication is curtailed surreptitiously; that is,

without leading to a break in communication or to the transition to openly
declared and permissible strategic action The confounding [or paradoxical]
thing about systematic distortion is that the same validity claims that are being
violated (and violation of which has pathological effects) at the same time serve to
keep up the appearance of consensual action.43

Communication becomes distorted in cases or situations where there

is some problem or conflict in the social norms or interactions in
which the participants are caught up and which cannot be directly
discussed or worked through. Consequently, the issue is systematically avoided or covered up, and the appearance of communicative
action is maintained.44
These well-formed but implicitly incorrect utterances are commonly found in a variety of asymmetrical contexts, including in the
interactions between parents and children, and in many situations of
conflict. Distorted communication is thus essentially the product or
effect of relations of power and domination. Social conflicts,
inequalities, and roles affect the normative conditions of successful
communication or the internal organization of speech. Distorted
communication is thus a structural restriction on communication
that constitutes and expresses relations of domination or power.45
These implicit restrictions can emerge in both the public and private
spheres.
In the private sphere, such as in the family, or in long-term and
trusting interpersonal relationships, conflicts can remain hidden for
the sake of the maintenance of trust and the lack of any other
practical alternatives. For example, one partner in a couple may
pretend to have the feelings that the other expects in order to preserve the normative context of the marriage and the family. For the
sake of this strategic goal, a woman might keep up the appearance of
reciprocating the affection of her husband even though she no longer
harbours such feelings.46 In this context, communication is operating
at two different levels: at the level of manifest behavior, the communicative presuppositions of consensual action are met; at the level
of latent behavior, one of the participants is acting strategically and
43
44
45
46

Habermas, supra note 15 at 154155.

Boham (2000, p. 129).
Habermas supra note 15 at 155.
Habermas supra note 15 at 152.

HATE SPEECH AND DISTORTED COMMUNICATION

intentionally violates the presupposition of sincerity. The internal

organization of speech is being unilaterally and intentionally violated.47 The distortion is not a simple error in communication or the
violation of explicit rules; rather, the communication appears to be
conforming to ordinary social norms (as they pertain to the family)
while at the same time, flouting those very same norms. The difference between these forms of distorted communication and other
simple misunderstandings is that the latter can be easily identified
and corrected, whereas the former will typically be so implicit or
latent as to not even be noticed.
The second situation where distorted communication occurs is
found at the level of institutions. Habermas description of this form
of distorted communication goes beyond latent strategic action, and
sees it in terms of the structural restrictions on communication that
constitute and express relations of domination and power.48 Such
restrictions on communication undermine communicative success,
allowing acts and expression to be limited in such a way that
reproduces the conflicts and inequalities. While Habermas does not
elaborate on what these structural constraints are in any detail,
James Bohmans account develops what this may mean in public,
institutional settings.
At the level of appearance, democratic institutions make the
conditions of communication explicit in publicly recognized and
legally enforceable norms, such as the norms of freedom, equality,
and transparency. However, as Bohman points out, while these
norms might enable correct performances some of the time, they
are insufficient or too weak to prevent the violations of implicit
norms of communicative success, and so leave open possibilities of
communication distorted by power.49
These distortions can include structural restrictions on the kinds
of topics and themes for political discussion and decision making, so
that fundamental concerns of certain groups are never expressed or
incorporated into the decision making process. These restrictions can
create informal mechanisms of political exclusion. This is a form of
distorted communication because on one level, it appears as though
all groups have access to the deliberative, political space, while at the
47
48
49

Habermas supra note 15 at 152.

Habermas (1984, p. 194).
Bohman supra note 44 at 1112.

SARAH SORIAL

same time, some groups are excluded in ways that are not immediately recognizable.
A second and more familiar example of distorted communication
occurs in the context of public speech more generally. Barriers to
equal participation in deliberations are not only the result of unequal
distribution of resources and power. They are also the result of who
the speaker is and whether they are able to secure uptake for their
views in the appropriate way. In situations of distorted communication, the speaker is not socially recognized in a way that enables
her to secure uptake for her views. These expressive restrictions are
typical in cases of inequalities of status, race and gender and often
lead to the implicit and publicly unrecognized exclusion of some
participants in public life.50 This exclusion can take the form of not
being able to secure uptake from others, not being recognized by
others as an equal participant in deliberations, being interrupted, and
not being given the opportunity to respond to other speakers. These
distortions of communication are most familiar in communicative
interactions between men and women at an implicit level and
undermine conditions of communicative success even as they
maintain social interaction.51 These kinds of restrictions violate the
norms of openness essential to publicity, but also violate the norms
of equality, as they prevent speakers from equally participating in
public life. The common feature to all these cases of distorted
communication is that communication is taking place at two different levels simultaneously. At one level, the speaker appears to be
committed to the norms governing public discussion while at the
same time, violating those norms in a variety of implicit ways.
If this is the case, then it would seem that distorted communication is rife in both the public and private spheres, that most of our
communicative interactions are distorted and that much of this
distortion has no bearing on hate speech. Amy Allen argues that this
realization may be one of the reasons why Habermas abandoned the
account altogether in his later work. A full examination of the ways
in which communication is distorted, especially in the public sphere,
potentially undermines the theory of communicative action: it
becomes difficult to make sense of systematically distorted
50
51

Bohman supra note 44 at 14.

J. Bohman supra note 14 at 14.

HATE SPEECH AND DISTORTED COMMUNICATION

communication at all, inasmuch as this notion relies implicitly on the

possibility of undistorted communication 52 If distorted communication is a symptom of asymmetries in power, and these asymmetries are not only deeply embedded in all our institutions, but
form and distort our very subjectivities, then it is difficult, according
to Allen, to see how one can achieve the kind of reflexive distance
from ones beliefs, practices and norms, and life projects that
supplies that notion critical bite.53 While I agree that most of our
communication may be distorted because of power asymmetries, the
concept of distorted communication nevertheless does some
important work. At the very least, it provides the critical tools for
identifying and understanding these power relations.
Consider, for example, the difficulty in taking up a critical perspective with respect to issues like gender identity. Allen argues that
we may have an interest in maintaining these modes of communication and recognition because they serve the function of stabilizing
and confirming our identities. However, just because critical distance
may be difficult, it is not impossible. Such critical distance is why we
are able to recognize the socialization processes and power imbalances that make gender identities and relations so entrenched.
Critical distance is what has enabled women to identify these power
imbalances, where they occur, and to agitate for structural change. It
is only on the basis of such critical distance that women are able to
identify and understand the social and power dynamics of being
silenced, interrupted, spoken over, and so on, that characterize many
communicative interactions.
Distorted communication, however prevalent, is thus an important conceptual tool for exposing and identifying things as they really
are in the public sphere. It enables us to draw attention to the kinds
of dynamic at play in the communicative interaction and the
speakers failure to live up to the norms and ideals they claim to
value (norms like equality of opportunity to speak and values like the
discovery of truth and democratic self-governance). Identifying
instances of distorted communication draws attention to the historical and structural forms of inequality and oppression that have
enabled the communication to be distorted in the first place. As such,
52
53

Allen (2008, p. 106).

Allen supra note 52 at 106.

SARAH SORIAL

the concept is useful in explaining why some speech acts are not
straightforward cases of political speech or academic debate.
V. HATE SPEECH AS A FORM DISTORTED COMMUNICATION:
RETHINKING THE LIMITS OF INCITEMENT

Cases of hate speech expressed using reasoned argument such as

the cases of Holocaust denial examined in Section 2, and cases where
hate speech is protected because the speech also has some bearing on
public policy or political issue seem to conform with the four claims
of validity for successful communication. In each of the cases, the
speakers meet the intelligibility condition: those whom they seek to
communicate with easily understand their speech acts. The speech
also meets the sincerity and truth conditions: the speakers sincerely
believe in what they say and believe what they say to be an
expression of truth. Finally, the speech appears to conform to the
normative condition, depending on how this is understood. In
democratic societies, certain publicly expressed norms exist, including the norms of free speech, transparency and equality. The
speakers appear to be exercising their free speech rights to participate
with others on equal terms about matters of genuine concern for
them and potentially, for others. They appear to be expressing some
sort of dissatisfaction with the way social institutions are structured
or the way social goods are distributed and so appear to be contributing to political life in some way.
The problem, however, is that the speakers are also covertly
violating each of those norms at the same time. Holocaust denial
literature expressed in a reasonable or coded way violates the
intelligibility condition because it is only intended to be understood
by a closed circle of adherents; it violates the truth condition because
it denies the Holocaust occurred, a historical fact over which there is
consensus based on good evidence; and it violates the normative
condition insofar as it uses democratic freedoms, like free speech and
equal participation in public deliberations, to argue for undemocratic
ideals, including the oppression of others and their exclusion from
public life. Holocaust denial material is not merely a subject of
academic debate, motivated by the discovery of truth, even though
at the level of manifest behavior it may appear as such.

HATE SPEECH AND DISTORTED COMMUNICATION

At the latent level, this material it intended to convey a particular

message about Jews as liars, fabricators, and opposed to democratic
freedoms, especially freedom of speech. Holocaust denial material is
not only deeply offensive and troubling for Holocaust survivors, but
risks sowing doubt in the minds of its audience about the historical
fact of the Holocaust. While much of the research is dubious at best,
it appears as if though it is thorough, technical and scientific such
that unsuspecting readers might find it compelling or persuasive. Of
equal concern is that much of it also claims that many of the worlds
problems, can be traced back to the lie of the Holocaust,54 thus
inadvertently blaming Jewish people for current social, economic
and political problems; a tactic also used by the Nazis to justify their
genocidal agenda during the Second World War. The Westboro
group case is not as complicated, as their speech acts were clearly
instances of hate speech, but the speech is a form of distorted
communication because they are using democratic freedoms to
argue for an undemocratic social and political organization, which
would exclude others from equal recognition and participation.
These speakers exclude others from equal participation in various
subtle and overt ways, including by making others feel threatened,
and by cultivating an environment that is degrading, hostile or
uncomfortable for the hearer.55 Given the kinds of harm these forms
of hate speech cause, are there good grounds for regulating some of
this speech? Or should a principle of tolerating the intolerant be
adopted instead?
A. Tolerating the Intolerant
In his discussion of tolerating the intolerant, John Rawls argues that
if an intolerant group appears in a well-ordered society, it should be
tolerated so long as the security of the just constitution is not
threatened. Over time, the liberties granted to the intolerant group
will persuade them to adopt the values of liberty and equality. Rawls
thinks that such persuasion works on the psychological principle that

54
See for example, articles published by the Institute of Historical Review (www.ihr.org) and the
Adelaide Institute (www.adelaideinstitute.org).
55
See for example Altman (1993), Applebaum (2003), Matsuda (1989).

SARAH SORIAL

those whose liberties are protected by and who benefit from a just
constitution will, all other things being equal, gradually acquire an
allegiance to it over time. Rawls argues: so if an intolerant sect
should arise, provided that it is not so strong initially that it can
impose its will straight away, or does not grow so rapidly that the
psychological principle has no time to take hold, it will tend to lose
its intolerance and accept liberty of conscience.56 It is not clear how
we are to determine that a group has become strong enough to
justify intolerance of it, and Rawls seems to sidestep this issue,
claiming that this situation presents a practical dilemma which
philosophy alone cannot resolve.57 Nevertheless, he does think that
some constraints on intolerant views are appropriate and that an
intolerant sect [s] freedom should be restricted when the
tolerant sincerely and with reason believe that their own security
and that of the institutions of liberty are in danger.58
The arguments for tolerance fail to acknowledge that sometimes
small, dedicated groups on the fringes of political debate can inflict
severe harm on their target group. In his criticism of Rawls, Harvey
Chisick argues that what Skokie type episodes demonstrate is that an
illiberal group may not be strong enough to impose its will on the
majority, but the conviction, determination and motivation of its
members might be sufficiently strong to resist the forces of tolerance
and liberty, causing them to inflict serious harms on members of the
population.59 Intolerant groups may be small, but they are often also
very vocal, organized, and impervious to democratic ideals, or at
least fail to understand that the ideals (especially equality) actually
belong to everyone, and not only to them. Moreover, it is not always
the case that illiberal groups will come to accept liberal values because they enjoy their benefits.
While stable democracies may remain largely unaffected by small
illiberal groups, in the sense that no political uprising occurs, they
could nevertheless, gradually erode liberal values in such a way that
other groups in the society are affected. The ease with which these

56
57
58
59

Rawls (1971, p. 219).

Rawls supra note 56 at 219.
Rawls supra note 56 at 220.
Chisick (2000, pp. 99113).

HATE SPEECH AND DISTORTED COMMUNICATION

views can be disseminated in the digital age means that the views are
able to reach a more diverse, and perhaps, less discerning audience.
This raises two problems: At what point is a group deemed sufficiently illiberal such that it poses a risk to democratic values and
causes harm to victim groups? And in cases where harm can be
established, is some form of regulation justified?
With respect to the first question, in a perfect, well ordered
society, where inequality and disadvantage are negligible and the
institutions are just, it may be reasonable to tolerate the occasional
illiberal group. In a well-ordered society, the illiberal group is likely
to be at the fringes of political debate, is likely to not have significant
reach, will not be able to influence political process and institutions,
and their speech acts are unlikely to cause harm, because citizens are
otherwise treated equally and with dignity as a matter of lived
reality. In societies characterized by profound inequalities, where
members of that society have been subjected to various forms of
oppression and disadvantage, and where that disadvantage continues
to affect them, perhaps because it has seeped into social and legal
institutions, then it is likely that the views of illiberal groups might
have more traction. At the very least, they will convey to groups that
have historically been, and in some cases, continue to be, oppressed,
that they are not in fact, equal, and that there are social forces
gathering to ensure that they not be treated as such. At the more
extreme end, these ideas may be accepted by wider sections of the
society, eroding assurances of equal treatment. The harm here is that
ones social and political position may seem to be tenuous or fragile,
and may in fact be so. In these cases, some form of regulation might
be justified.
B. The Question of Regulation
In jurisdictions where speech regulations exist, they are typically
used to penalise more overt forms of hate speech. However, given
the above account of the ways in which hate speech can appear as a
distorted form of communication, there may be good reasons for a
broader understanding of what constitutes incitement. Recall that to
incite means to stir up feelings of hatred, to discriminate or in some
cases, to cause violence against others. Distorted forms of hate

SARAH SORIAL

speech are, I have argued, capable of doing all of these things in

more insidious and covert ways; if the effects of these different
categories of hate speech are the same, then it should not matter,
from a legal point of view, what form they take.60
Legal regulation of these kinds of hate speech performs a number
of different functions. First, law serves an expressive function in
signaling to affected groups that the institutions of the society do not
endorse or in any way validate the views that are being expressed. It
signals to victim groups that society takes the harms of hate speech
seriously, even if some of its citizens do not. This expressive function
exists irrespective of how effective the laws are in practice. Second
legal regulation plays an important educative function in signaling to
hate speakers that the society finds these speech acts unacceptable.
As Waldron puts it: a society cannot be well-ordered if people are
advocating racial or religious hatred We dont call a society wellordered unless these attitudes have died out and been replaced by
sentiments of justice.61 In a well-ordered society, there might be no
need for laws regulating hate speech because the citizens will have
no motivation or desire to express themselves in these ways.62
Our societies are, however, far from well-ordered in these respects,
and so the coercive function of law might be necessary to educate
racist citizens about the harms of hate speech to victim groups and to
democratic values more generally. Many European jurisdictions prohibit Holocaust denial and other forms of racism because they have to
consider the effects of this speech against the background of the
Holocaust, but the living memory of the Holocaust and other forms
of genocide and oppression are not localized to Europe. Many
Holocaust survivors and their families live in the United States,
Canada and Australia; Australias history is marred by its treatment of
60
There has been some legal recognition of this view in the recent Canadian case of Saskatchewan
(Human Rights Commission) v Whatcott, where the Canadian Supreme Court went some way in
acknowledging the difficulties with broad protection of speech on the grounds that it is political
expression. In rejecting Whatcotts defense that the flyers he has distributed were merely the expression
of a political viewpoint, and so should be protected speech, the court held: Framing that speech as
arising in a moral context or within a public policy debate does not cleanse it of its harmful effect.
Indeed, if one understands an effect of hate speech as curtailing the ability of the affected group to
participate in the debate, relaxing the standard in the context of political debate is arguably more rather
than less damaging to freedom of expression. As argued by some interveners, history demonstrates that
some of the most damaging hate rhetoric can be characterised as moral, political or public policy
discourse. Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at 116.
61
Waldron supra 24 at 78.
62
Ibid.

HATE SPEECH AND DISTORTED COMMUNICATION

its indigenous peoples and a White Australia Policy, and the United
States has a history of slavery, institutionalized racism and segregation.
It is against this background that people experience and have to situate
public manifestations of hate speech.63 The problem here is not simply
that these manifestations hurt or offend victim groups; instead, these
manifestations intimate a return to the all-too-familiar circumstances of
murderous injustice that people or their parents or grandparents
experienced. Such intimations are directly at odds with the assurances
that a well-ordered society is supposed to provide.64
VI. OBJECTIONS

There are at least two interrelated objections to this account: the first
concerns the scope of what constitutes distorted communication, and
the second concerns how hateful content is determined and regulated
by the state. With respect to the first objection, given that much of
our communicative interaction is distorted in the ways described
above, is it possible to draw the same kinds of conclusions (i.e., regulation) about other forms of distorted communication? These forms
can include covert lies or misleading advertising aimed at those who
are already disadvantaged. Or the distorted communication can appear in the guise of religious claims denying the existence of dinosaurs
or other things for which there is significant empirical and scientific
evidence, as a way of discrediting scientific methodology. This form of
distorted communication is especially apparent in teaching children,
where asymmetries in power are most pronounced.65
Second, if the content of a speech act is relevant for determining
whether it is hate speech, and if the content is sometimes difficult to
distinguish from political or academic speech, then how should the
state determine hateful content? And if hateful content can be regulated, then what measures should be adopted to ensure that regulation does not inhibit or curtail the freedom to challenge
commonly accepted views in a way that is critically reflective?
With respect to the first objection, the argument I am defending is
not that all forms of distorted communication ought to be regulated
or even that all forms of distorted communication which take the
63
64
65

Ibid. at 103.
Ibid. at 103.
I am grateful to two anonymous reviewers for bringing these objections to my attention.

SARAH SORIAL

form of hate speech should be. There might be a number of others

ways of responding to, and ameliorating the effects of, various forms
of distorted communication. In the case of advertising, some forms
of regulation might be acceptable (such as prohibiting gambling
related advertising during televised sport to protect children),66 but
other programs designed to educate people about the effects of
advertising might be just as effective, as is a requirement that children are taught from a national curriculum, alongside whatever
religious teachings they may be exposed to. The point, however, is
to draw attention to the ways in which communication is distorted
in these contexts, so that people are better placed to counter it, and
the power asymmetries it exploits.
The question of how to determine what content is hateful and
what content merely challenges prevailing views is difficult, and of
course, we should be wary of giving the state too much power to
adjudicate these complex questions. The argument for regulation is
intended to cover a small subset of hate speech that takes the form of
distorted communication; it includes speech that takes the form of
academic or political debate but which has otherwise been discredited or proven to be wrong, and causes various kinds of harm.
Holocaust denial is a case in point, as are academic or scientific
arguments about the biological inferiority of some races.67
Hate speech can take a variety of forms: it does not always advocate
violence; it is not always overtly discriminatory; and it can sometimes
appear to be consistent with democratic norms. As I have tried to
demonstrate, some forms of hate speech appear in the guise of reasoned argument, or historical or academic debate. In these cases, the
category of incitement, traditionally conceived, is of little value in both
identifying what is at issue with this speech or with regulating it. And
yet, these speech acts can cause serious harms to victim groups, even
when they conform to the norms of civility. I have argued that these
kinds of speech acts can be better understood as a type of distorted
communication. At the manifest level of interaction, the speech acts
have the appearance of conforming to norms of communicative action,
66

For example, the Australian Federal Government is seeking to impose restrictions on inappropriate gambling related advertising, including live odds during sporting broadcasts.
67
A full taxonomy of the different kinds of hate speech which take the form of distorted communication is outside the scope of this paper; however, it might be useful as a guide for making some of
these more finer grained distinctions.

HATE SPEECH AND DISTORTED COMMUNICATION

while at the latent level of actual behavior, they are violating at least
some of those norms. The fact that courts routinely interpret these
speech acts as legitimate expressions protected by free speech principles
is testament to the ways in which distorted communication is sometimes difficult to identify or recognize.
If we are to take seriously the idea that we are all entitled to equal
civil rights, including the right to equally participate in public debate,
then it is incoherent to defend the rights of some speakers to argue
for ways of life that would result in the oppression and discrimination of others, and to claim that these forms of communication are
simply legitimate forms of debate, motivated by the discovery of
truth. I suggest that we should call these speech acts what they are:
forms of hate speech that appear in a different guise, but which have
the same effects. Accurately categorizing these speech acts is
important given the value we place on political speech and academic
debate; mischaracterization and acceptance of this speech might
inadvertently normalize it and give the impression that it is valuable.
Moreover, because these forms of hate speech have the same effects
as our traditional understanding of that term (i.e., they can incite or
stir up feelings of hatred and discrimination, which in turn, affects
how targeted groups are treated in society), then there are good
reasons for broadening our interpretation of the concept of incitement, so that it is able to capture these forms of speech as well.
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LEGISLATION
Anti-Discrimination Act 1977 (NSW).
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Criminal Code, R.S.C. ch. C-46, S 319 (1) (2) (1980).

Faculty of Law, Humanities and the Arts,

The University of Wollongong, Wollongong, NSW 2522, Australia
E-mail: sarahs@uow.edu.au