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HATE SPEECH BANS: AN INTOLERANT RESPONSE
TO INTOLERANCE
STUART CHAN*

Any advocacy of national, racial or religious hatred that

constitutes incitement to discrimination, hostility or violence
shall be prohibited by law - Article 20(2) ICCPR.

This pronouncement of the International Covenant on Civil and Political

Rights,I adopted by the General Assembly of the United Nations in 1966,2
ranks amongst the strongest condemnations of hate speech on the
international scene. Unsurprisingly, Western European states are amongst
the most diligent adherents to the ICCPR and have all adopted domestic
legislative measures in line with Article 20(2) which prohibit various forms
of intolerant "hate" speech.3
Nevertheless, in spite of their intuitively altruistic intentions, hate
speech bans must be recognised as a correlative and perpetuating
encroachment upon free speech rights and principles. Consequently, they
require appropriate justification. Article 19(3) ICCPR, makes this explicit:

[freedom of expression] may therefore be subject to certain

restrictions, but these shall only be such as are provided by law
and are necessary:
(a)For respect of the rights or reputations of others;
(b)For the protection of national security or of public order.4

In times of fear and uncertainty, societies can become increasingly insular

and less tolerant. Even societies which place great emphasis on the
protection of free speech can come under strain when divergent views and
cultures cause a clash of values. Hate speech bans are a response to the
dangers posed by such societal anger and intolerance. In light of this threat
to public order, as well as the need to protect the rights and freedoms of

LLB (Durham), LLM (International Corporate and Commercial Law), (Durham).

Entered into force on 3 January 1976. [Hereinafter ICCPR].
2 GA Res. 2200, 21 UN GAOR Supp (No 16) at 52-58, UN Doc A/6316 (1966).
3 Against the global and European trend, the US stands as a fierce dissenter. Under the First
Amendment to the US constitution, the Supreme Court has struck down precisely the kinds of
hate speech bans that international norms require, for example RA V v St Paul (1992) 505 US
377; Virginiav Black (2003) 538 US 343.
4 Emphasis added.
© 2011 Stuart Chan and Dublin University Law Society
78 Trinity College Law Review [Vol. 14

individuals within modern pluralistic societies, hate speech bans can be

seen as a justifiable means of mitigating the symptoms of these
intolerances. In short, they protect against the harms that hate speech can
inflict upon individuals and society.
The aim of this article is to examine whether hate speech bans are an
effective, and for that matter "necessary", means of mitigating the dangers
of hate speech; and thus whether hate speech bans are a justified limitation
upon the values of free speech; a presumption found in Article 20(2)
ICCPR.
This article will therefore address two linked, but separate questions.
First there is "The Question of Principle," do hate speech bans which
regulate the contents of speech undermine the values derived from a
commitment to freedom of expression? A positive answer concludes
discussion. A negative answer does not, for the legitimacy of such
legislation does not necessarily address its effectiveness. The second
question therefore focuses on whether such legislation is really desirable,
this is "The Question of Necessity." The answer to this final question will
thus challenge the Article 20(2) ICCPR presumption.
Before the substantive discussion, it is essential to clarify two points.
First, the approach of this article will be normative in nature. This article is
not concerned with the intricacies and complexities of specific domestic
applications of hate speech legislation as this will detract rather than
enhance discussion pursuant to the aims of this article.
Secondly, it is conceded from the outset that the abolition of hate
speech bans in Western European states is an unlikely occurrence. As Eric
Heinze points out, many governments would hesitate before adopting
controversial positions on norms that are now well established in
international and European human rights law, particularly when they are
likely to see little political advantage in doing so.' Nevertheless, if hate
speech bans are to remain politically entrenched for the foreseeable future,
it is important that their defects are recognised and understood so that
measures to address these deficiencies can be adopted.

The Question of Principle

Freedom of expression is one of the most widely accepted rights in the
world today. Whether it has express 6 or implied7 constitutional status or

5 Eric Heinze,"Viewpoint Absolutism and Hate Speech" (2006) 69 MLR 543, at 545.
6See the FirstAmendment of the Constitution of the United States.
See decisions of the Australian High Court in Nationwide News Pty Ltd v Wills [1992] ALJR
658 and Australian CapitalTelevision Pty Ltd v The Commonwealth [1992] ALJR 695.
2011] Hate Speech Bans 79

judicial recognition at common law,' it has a powerful normative status

which ensures that it generally receives a purposive interpretation.
However, this does not mean that speech can never be restricted; it merely
generates a presumption against restricting speech.
Classical theory justifies free speech by reference to the ideals of
attaining truth,9 exercising our democratic prerogative of self-
government,10 and achieving personal self-fulfilment.11 According to the
classical theories, free speech is integral to these pursuits and the regulation
of such speech is a threat to their realisation. However, the classical
theories are unsatisfactory when they are confronted with hate speech.
Focusing as they do on identifying the primary beneficial uses of speech
activity, the classical justifications have very little to say about protecting
speech in extreme cases where those benefits only exist in a most
attenuated form, if benefits can be said to exist at all. Indeed, to subscribe
to those values seems to compel prohibition instead of protection.
All three classical theories for free speech, based on truth, democracy
and autonomy, are rooted in a combination of utilitarian and
consequentialist principles. From a consequentialist point of view,
therefore, it is unsurprising that they come unstuck when confronted with
speech which prima facie appears to undermine the goals they are
purposed to deliver. What is more, with regards to utilitarian concerns, it
becomes clear that the utilitarian scales, which balance pleasure (or
preference) over pain, are inherently wary of the harms that hate speech
can bring upon society. As a result, contrary to intention, the classical
theories are quintessentially circumspect of an absolutist approach to free
speech and fail to provide a robust justification for free speech. The

8Attorney General v GuardianNewspapers (No 2) [1990] 1 AC 109 (HL); Derbyshire County

Council v Times Newspaper Ltd [1993] AC 534 (HL).
9 John Stuart Mill's "Marketplace Theory" is one of the most influential consequentialist
justifications for the doctrine of free speech to date. Mill's theory puts forward the proposition
that the best test for truth is the power of expressed thought to get itself accepted in the
competition of an unregulated free speech market. The notion of an entirely open and
unregulated free speech arena epitomises libertarian ideals and forms an integral component
of Mill's theory. See John Gray and George W Smith eds., JS Mill's On Liberty in Focus
(Routledge, 2002); and David Brink, "Millian Principles, Freedom of Expression, and Hate
Speech" (2001) 7 Legal Theory 119.
10 See Alexander Meiklejohn's seminal essay, "Free Speech in its Relation to Self-
Government" in Alexander Meiklejohn ed., PoliticalFreedom: The ConstitutionalPowers of
the People (Oxford University Press, 1965). See Eric Barendt, Freedom of Speech (2 nd ed.,
Oxford University Press, 2005), at 11-14.
1 Thomas Emerson, The System of Freedom of Expression (Vintage Books, 1970); Ronald
Dworkin, "The Coming Battle over Free Speech" New York Review of Books, 21 October
1993; Edwin Baker, Human Liberty and Freedom of Expression (Oxford University Press,
1989).
80 Trinity College Law Review [Vol. 14

conspicuous failure to justify the restrictions on the legal suppression of

speech, especially hate speech, is a fundamental oversight. As a
consequence, a lacuna in classical theory becomes apparent when one
recognises that the protection of hate speech is an integral component of
free speech principles. All in all, the classical arguments appear incapable
of providing a satisfactory explanation for the special protection accorded
to speech, especially in relation to hate speech.
If a free speech principle is to remain a legitimate concept, one which
is premised upon benefitting society as a whole, it must protect not only
speech which society deems acceptable and conducive to pre-assigned
goals, but also speech which is despised by society too. Lee Bollinger's
"tolerance theory"12 goes some way towards meeting these demands, and
in so doing fills the lacuna left by the classical theories. Bollinger claims
free speech has a far wider relevance to society than the narrow pursuits
traditionally advanced by classical theories. He argues that free speech
should be explained and defended as helping to develop a practice of
tolerance. Free speech in Bollinger's opinion is a central component in the
development and maintenance of a tolerant pluralistic society, not only
providing a social context in which a tolerance ethic can be promulgated in
society but also a means through which it can be exercised.1 3 What is more,
Bollinger endorses the view that once a "tolerance ethic" is established, its
effects upon society are self-perpetuating.14
Bollinger's emphasis on tolerance as a positive value is not in itself
without due pertinence. Tolerance promotes a culture of mutual respect and
understanding, which in turn lays the foundations for societal peace,
harmony, and cohesion. Modern societies have become increasingly
diverse, made up of people from divergent cultures with conflicting values
and ways of life. As a consequence, the potential for conflict and
intolerance is an inherent characteristic of modern pluralistic democracies
and the threat that this poses to public order is real. Tolerance has thus
become an important commodity, integral in preserving and maintaining
societal peace and harmony in a modern era typified by increasingly
diverse pluralist societies. Freedom of speech in this light reflects and
reinforces pluralism, encouraging tolerance for different and conflicting
types of life.

12 Lee Bollinger, The Tolerant Society: Freedom of Speech and Extreme Speech in America
(Oxford University Press, 1986).
13 Ibid., at 120-121.
14 Ibid., at 122.
2011] Hate Speech Bans 81

Thomas Emerson's "Social Stability Theory"1 takes a similar line.

He argues that free speech should be viewed as a mechanism for promoting
both adaptability and stability in society.

This follows because suppression of discussion ... promotes

inflexibility and stultification, preventing society from
adjusting to changing circumstances or developing new ideas
... Freedom of expression thus provides a framework in which
the conflict necessary to the progress of a society can take
place without destroying the society.1

In these regards, hate speech is not to be understood as the peripheral costs

of an inevitably imperfect world, but rather as integral to the central
functions of a principle of free speech purposed to facilitate a more tolerant
society. Thus, these two theories reconceptualise the protection of hate
speech as pursuant rather than opposed to social ends and thus advertises
the tolerance of hate speech in a more palatable form." As a consequence,
both theories represent a more comprehensive justification for free speech
than those offered by classical theories which give excessive weight to
specific human pursuits. These tolerance theories instead recognise that the
best and most persuasive argument for free speech gives greater weight to
tolerance as a positive value in its own right.
One must concede, however, that these contemporary theories do not
advance the absolutist position that free speech should remain immune to
suppression in all circumstances. In some instances, hate speech may place
an intolerably inextricable strain upon social cohesion, to the detriment of
public order. After all, these theories are consequentialist in their nature.
Therefore, if societal peace and harmony are better served by limitations
upon free speech, those limitations would vindicate the suspension of
tolerance. Bollinger himself admits that his tolerance thesis does not easily
justify the immunity demanded by an absolutist approach to free speech,
nor does he advance his thesis pursuant to this goal." Bollinger believes
that the pursuit of an absolutist approach is a dangerous one, one which
compromises reasonableness and perspective in relation to free speech and
its implications.

15 Emerson, note 11.

16 Ibid., at 7.
17 In Bollinger's theory, such a symbolic refusal to give into intolerance
strengthens the
collective bonds which hold society together and hence averts public disorder.
18 Bollinger, note 12, at 140.
9Ibid., at 23.
82 Trinity College Law Review [Vol. 14

With this in mind, Bollinger's theory humbly restricts itself to

providing a fresh perspective from which to understand the contemporary
meaning and worth of a free speech principle in modern society. These
theories of tolerance place the focus of debate on questions of where and
how limits might reasonably be placed on free speech. After all, an
intolerant defence of tolerance is more than just an anomaly; an unbending
insistence on tolerance may cancel out or reverse the gains society hopes to
achieve through the institution of free speech.2 0 Contemporary theories of
free speech must on such occasions give way to the reality of human needs.
Ultimately, legislative efforts to suppress hate speech may in such
instances serve the goals of societal peace, harmony and cohesion more
effectively than a strict adherence to free speech, and in so doing represent
a justifiable infringement upon free speech principles. As Bollinger
proclaims:

[w]hat we can and should strive for is both a sympathetic

understanding of the needs of intolerance, as well as a weariness
toward them, and an awareness of their role in the enforcement
of the free speech principle itself.21

What becomes clear is that virtually all rationales for free speech concede
that some exceptions must be created for the social regulation of speech.
As a consequence, one must accept that a free speech principle is a relative
concept, especially when matters of hate speech are concerned.

The Question of Necessity

There exist a number of compelling arguments which advocate the need for
restrictions on free speech when such speech concerns the expression of
hateful ideas and opinions. 2 2 Most of these arguments justify these
restrictions in the belief that the dissemination of hate speech in the public
arena undermines notions of equality and tolerance which provide the
foundations for social peace and harmony within modern pluralist
democracies. From this point of view, hate speech bans represent a

20 Ibid., at 215.
21
Ibid., at 221.
22 See Ivan Hare, "Legislating Against Hate: the Legal Response to Bias Crime"
(1997) 17
OJLS 415; Richard Delgado, "Words that Wound: A Tort Action for Racial Insults, Epithets
and Name-Calling" [1982] 17 HarvardCivil Rights-Civil Liberties Law Review 133; David
Kretzmer, "Freedom of Speech and Racism" (1986-1987) 8 Cardozo Law Review 445; Mari
Matsuda, "Public Response to Racist Speech: Considering the Victim's Story" [1989] 87
Michigan Law Review 2320; Brink, note 9.
2011] Hate Speech Bans 83

legislative effort to suppress opinions and ideas that if disseminated onto

the public stage might lead to increases in intolerance, discrimination and
inequality, and ultimately civil unrest.
Hate speech bans impinge upon the free speech liberties of so-called
hate speakers. However the following discussion will, through an
examination of the main arguments which support the call for hate speech
regulation, seek to determine whether this abrogation of free speech
principles is indeed necessary. Throughout the following analysis it will be
shown that although these arguments have merit in their altruistic
intentions, the indeterminacy and contradictory nature of hate speech bans
mean they often do as much to aggravate intolerance and inequality as they
do to mitigate it. Thus an argument will be made that the realities of hate
speech bans undermine their effectiveness and their corresponding
desirability and the abrogation of the free speech liberties of hate speakers
cannot, therefore, be justified.
It is important to note that hate speech is a manifestation of
underlying intolerances in society. It is a means of communicating the
prejudicial and discriminatory ideas, attitudes and opinions which
increasingly beset culturally diverse modern democracies. Thus hate
speech bans must be understood as only suppressing the symptoms of
intolerance and discrimination in society, mitigating the harms that could
result from these ills. They should not be thought of as a cure.

The Indeterminacy of Hate Speech Bans

The Silencing Effect v The Chilling Effect: The DefinitionalDilemma

Speech influences the ideas, beliefs, and attitudes within a society; this
truism is an integral ingredient of the free speech doctrine. Indeed, it is this
power to influence, inspire, and captivate the individual minds within a
democratic society which creates an aura of apprehension with regards to
hate speech. Generally, it is argued that hate speech, "poisons the well of
mutual respect amongst deliberative communities," 2 3 and it has a silencing
effect, discouraging social integration and participation by imparting the
message that members of identifiable groups should not be given equal
standing in society; they are not human beings deserving of equal concern,
respect or consideration. The resultant harms caused by this message run
directly counter to the values central to a free and democratic society,
striking at the social cohesion of the varied communities in pluralist
societies. In these respects it is a paradox that free speech protects

23 Brink, note 9, at 140.

84 Trinity College Law Review [Vol. 14

principles of liberty and respect whilst at the same time sheltering the
speech of those who advocate their destruction. Solicitude for those bent on
individual and social injury seems an odd virtue to endorse. It could be
argued that hate speech does not constitute speech at all but rather an abuse
of the means intended to propagate altruistic ends. Hence, few find any
fault in decisions to suppress hate speech.
Whilst it is an inescapable truth that speech, especially hate speech,
has the power to influence the ideas, beliefs, and attitudes adopted by
individuals within a society, this is nevertheless true of regulations upon
speech too. It is pertinent at this stage to point out that hate speech bans
should not be seen through rose-tinted lenses. The reality of hate speech
bans is that they cut both ways. They do as much to promote intolerance as
they do to mitigate its effects. Hate speech bans should be recognised as
the double-edged swords that they are and arguments that advance their
adoption should be treated with appropriate caution. The definitional
problems discussed below are a case in hand.
The practicalities of outlawing hate speech require definition of the
scope of the speech to be suppressed. Given the many types of speech
which may be considered hateful, and the inherent vagueness of the
language used to define the prohibited expression, an almost unsolvable
dilemma presents itself.
A broad definition may be purposed to suppress only the most
virulent and intolerant speech. It may however inadvertently extend to
genuine speech of a kind that should not be restricted. The problem
subsists in the fact that hate speech bans are often worded in very open-
ended terms pursuant to a scheme of legislative measures that would be
flexible enough to adapt and encompass the many guises hateful expression
could cloak itself in. However, broadly indeterminate terms such as
"disseminating," "promoting," "advocacy," "incitement," "insulting,"
"hatred" and "intolerance" are very much open to interpretation, raising
questions as to what they actually constitute and the circumstances in
which they apply. After all, what is insulting? Is it speech which employs
derogatory terms, or is it simply speech which conveys insulting ideas, or
does it indeed include speech which consists of both elements? Due to the
vagueness of these terms and their random application, hate speech bans
generate pervasive indeterminacy. There is a clear risk that people may as a
result feel compelled to silence themselves in order to "play it safe" and
protect themselves from prosecution. Such unwarranted and arbitrary
consequences result in a chilling effect on genuine ideas and opinions held
on sincere and good faith terms. Hate speech bans seen in this light
24 Bollinger, note 12, at 26.
2011] Hate Speech Bans 85

threaten to completely eliminate, albeit indirectly, a genuine point of view

from public debate. This represents an unjustifiable encroachment upon
freedom of speech, which is abhorrent to notions of equality central to
democratic citizenship.
On the other hand, one might seek to side-step these pitfalls by
taking a narrow definition, confining prohibitions on hate speech to only
the crudest and most blatant forms of hate speech. Unfortunately, such
protection is inevitably ineffective and superficial. It provides a porous net
of protection, excluding not only speech worthy of protection, but also
speech which is not. Such a narrow definition will thus cast doubts upon
the efficacy of hate speech bans as a means of halting the spread of
intolerance in society. Moreover, this approach can also be seen to have the
unfortunate consequence of encouraging hate speakers to seek more subtle,
or superficially moderate, forms of expression not caught by the statutory
language. Arguably the more apparently rational and moderate the
message, the greater the silencing effect on its audience will be. Thus, such
premeditated consumer packaging of hateful opinions, attitudes, and views
may be equally or more likely to promote intolerance in society than the
most obnoxious and blatant expressions of hatred.
It becomes clear that there is a fine line to be drawn when
demarcating the legislative scope of hate speech bans. Whether they are
narrowly or expansively drawn, there are negative consequences to each
alternative. In defining their scope it would seem that they should be
appropriately broad so as to be effective in combating the silencing effect
hate speech bans anticipate, whilst at the same time, they should be
appropriately confined so as not to chill the innocent speech they seek to
protect. Evidently, striking the right balance is imperative so as not to
compromise either goal. However, such indeterminacy is an intractable
feature of hate speech bans and in reality this balance may prove to be an
impossible feat to achieve. As Loren Beth points out, human feelings are
"too inescapably vague to be made a legitimate standard for a penal
statute." 25

The Contradictory Nature of Hate Speech Bans

The Argument from Mutual Respect andDignity

As James Weinstein observes, it appears somewhat intuitive for a society

to suppress certain hateful expressions simply because they are "wrong,"

25Loren Beth, "Group Libel and Free Speech" (1955) 39 Minnesota Law Review 167, at 178-
179.
86 Trinity College Law Review [Vol. 14

not so much in a factual sense, but in a moral sense. 2 6 Extreme hate speech
expresses contempt for the targeted individual or group demeaning their
human dignity and in some instances their very humanity. It would seem
odd to hold that such speech should always be protected under a free
speech principle which is itself grounded on respect for human dignity and
rationality. The problem lies in the fact that hate speakers, like every other
citizen in a democracy, have a very strong presumptive right to express
their own views. Indeed, whilst from the listener's perspective the speech
may translate as hateful, the speaker may merely be expressing his own
closely held beliefs. In essence, the suppression of the hate speaker's right
to free speech negates his own rights to dignity and rationality, and in so
doing gives effect to majoritarian intolerances.
A conundrum thus presents itself: the suppression of hate speech may
be a means of bolstering the notion of mutual respect and dignity necessary
in a society which venerates the equality of all persons, but equally this
suppression of an individual's freedom of speech may in itself undermine
the goals that it seeks to achieve.
Proponents of hate speech bans have attempted to solve this
conundrum by finding a rationale for the suppression of hate speech that
can be applied in a principled fashion without wholly undermining the
virtues of equality and dignity that are not only fundamental to free speech,
but also to the maintenance of social harmony and peace. In The Irony of
Free Speech,27 Fiss argues that the suppression of hateful expression does
not compromise free speech values by trying to control the people's choice
among competing viewpoints, but instead promotes the virtues of dignity
and mutual respect by combating the silencing effect hate speech has on
society and ensuring "all sides are heard." 28
At first blush it may appear as though Fiss has found a rationale for
suppressing hate speech that will actually promote rather than undermine
mutual respect and dignity within society. This rationale, although well
intended, is inherently flawed. It promotes the view that hate speech bans
liberate public discourse; this argument, however, turns a blind eye not
only to the free speech rights of the suppressed individual, but also their
rights to dignity and respect too. As a consequence the only "irony" in
Fiss' argument is that it tacitly promotes inequality and intolerance - the
very ends hate speech bans are purposed to mitigate.

26 James Weinstein, "An American's View of the Canadian Hate Speech Decisions" in
Wilfrid Waluchow ed. Free Expression: Essays in Law and Philosophy (Clarendon Press,
1994), at 218.
27 Owen Fiss, The Irony ofFree Speech (Harvard University Press, 1996).
28 Ibid., at 5-26.
2011] Hate Speech Bans 87

Thus it would seem that the virtues of dignity and mutual respect as a
public good cannot be realised in any meaningful sense through the
suppression of the individual's right to free speech. The solution to the
aforementioned conundrum may not be found through the inherent
contradictions of hate speech bans. The best means of bolstering notions of
mutual respect and dignity may instead be found through tolerance of the
kinds of speech society detests most.

Hate Speech Bans' Symbolic Value

Some commentators have suggested that hate speech bans should be

legitimately enforced, regardless of libertarian objection. As Heinze
proclaims: "whatever the defects ... the law must express the fundamental
moral values held by society." 29 It is said that bans on hate speech do not
only represent an acknowledgement of the victim's plight, but they have
significant symbolic value in curbing society's inclination toward affording
expressions of discriminatory attitudes deference; "it is after all our
statement as a society of what we consider unacceptable."3 0 With hate
speech threatening to undermine the conditions of tolerance within society,
the communicative value of such prohibitions is all the more significant. It
is no wonder that proponents of hate speech bans are adverse to allowing
offensive speech to go unchallenged in situations where tolerance through
silence might be thought to signify either moral weakness or a lack of
commitment to the opposing point of view, lending respectability to hateful
attitudes, the acceptance of which may foster an eventual breakdown of
public order.
On the contrary, although hate speech bans may appear from the outset
to be an appropriately symbolic means of communicating societal
condemnation, they may in reality subvert rather than promote their
intended ends. Such measures glorify the hate speaker whilst at the same
time providing greater exposure and publicity for his message,
undermining intentions to preclude the spread of hateful prejudices.3 Seen
in this light, prosecutions merely provide a public platform for hate
29 Heinze, note 5, at 549.
30 Susan Gellman, "Sticks and Stones Can Put You in Jail, but Can Words
Increase Your
Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws" (1991) 39 UCLA
Law Review 333, at 388.
31 The prosecution of Michael Abdul Malik in 1967, then leader of the
"British Black
Muslims" and later the leader of the Racial Adjustment Action Society, under the Race
Relations (England and Wales) Act, 1965 not only raised the profile of both organisations but
also helped spread his extremist views into the wider public consciousness. Needless to say
this was very much contrary to the intentions of the Act which were to preclude the spread of
racial prejudice and discrimination.
88 Trinity College Law Review [Vol. 14

speakers who if convicted could claim martyrdom, and if acquitted could

claim vindication. Either outcome is unsatisfactory to the goals hate speech
bans are purposed to achieve and ultimately lend respectability to the
hateful messages they seek to denounce.32 Therefore, hate speech
prosecutions run the very real risk of creating some of the dangers that hate
speech bans were supposed to disparage. In the UK, successive Attorneys
General have become increasingly reluctant to authorise prosecutions as
they are all too wise to the lack of constructive merit of such action, and all
too fearful of their inevitable backlash.3 3 As Lord Lester has pointed out:

[t]he Attorney General's highly political decision [to consent to

a prosecution] would be a source of mischief and resentment
among extremists and mischief makers ... [His] decision to
refuse consent will be used by the extremists as evidence of the
discriminatory operation of the law and will leave embittered
those whose expectations were not fulfilled.34

One might go so far as to conclude that this justifiable oversensitivity to

the possible undesirable ramifications of subsequent prosecutions going to
trial nullifies hate speech bans as an effective weapon against hate speech.
Thus, although hate speech bans may be motivated by some intrinsic
symbolic worth, the realities of their enforcement devalue much of what
such symbolism is intended to achieve.

Hate Speech as a Necessary Conditionfor Intolerance

Theoretical work in both social psychology and sociology 5 stresses the

importance of speech as a precondition for hateful intolerance; this
correspondingly increases incidences of prejudice and discrimination in
society. Although Neil Smelser acknowledges that hate speech is not a
sufficient enough cause of active discrimination in itself, it is nevertheless
clear that it is a necessary condition for the creation of intolerance and
disharmony within society.36 Proponents of hate speech bans endorse this
logic and hold that legislation aimed at preventing the dissemination of
hateful beliefs can be seen as a logical step towards bolstering the notions
32 Gellman, note 30, at 393. As Gellman notes, Adolf Hitler used the Weimar Republic's anti-
hate speech laws to publicise his cause and to play the martyr - to devastating effect.
33 In the UK the offence of stirring up racial hatred under s 6 of the Race Relations Act 1965,
a prosecution for which can only be brought with the consent of the Attorney General,
resulted in only 44 convictions in the eighteen years between 1986 and 2004.
34 House of Lords Debates col. 174 (10 October 2005), at 174.
35 Gordon Allport, The Nature ofPrejudice (Addison-Wesley Publishing Co, 1954).
36 See Neil Smelser, Theory of Collective Behaviour (Free Press, 1963), at
16-17.
2011] Hate Speech Bans 89

of tolerance and mutual respect necessary in a modern democratic

society.3 1
One might argue that the uninhibited free expression of hate speech
might strengthen the resolve of those already committed to such beliefs, as
well as inevitably propagating hateful attitudes in others. As Kretmer
proclaims, "one does not expect a weed to die away on its own accord, if
anything one should only expect its roots to grow stronger."38
Whilst the logic of this argument has merit, the realities of hate
speech bans and their consequences paint a different picture. Nadine
Strossen cites evidence that hate speech bans do not eliminate intolerance,
but simply drive it underground. 3 9 Driving the speech underground
disconnects debate on the matter from public discussion and thus risks
radicalising it even further. The reality is that should ideas and opinions be
alienated from public discussion such issues cannot be tracked and
confronted head-on, and as a consequence, speech which was at first
innocuous can re-emerge in a more virulent form. The unwanted weeds of
prejudice and discrimination, from this perspective, might instead grow
more rapidly and cause more damage from inattention, having been driven
underground away from public view.
Psychological studies compound this problem in showing that
censored speech becomes all the more appealing and persuasive to many
listeners, merely by virtue of its censorship. As Harold Laski explains, "no
state can suppress the human impulse of curiosity." 40 Indeed he goes on to
argue that by virtue of "a kind of psychological scarcity value,"4 '
censorship has the effect of giving wider currency to that which is
suppressed.
More pertinently, the exclusion of hate speech from public discussion
means it is more difficult to respond to the underlying attitudes of the
intolerance that it expresses. A more tolerant policy better aligned with the
absolutist approach to free speech would, through free and open discussion,
provide us with a "social thermometer" 42 for registering the presence of
prejudice within society. This in turn would raise public consciousness on
the matter which may catalyse communal efforts to redress the bigotry that

37 Bollinger, note 12.

38 Kretzmer, note 22, at 456.
39 Nadine Strossen, "Regulating Racist Speech on Campus: A Modest Proposal" [1990] Duke
Law Journal554, at 559.
40 Harold Laski, Liberty in the Modern State (3 rd ed., George Allen and Unwin Ltd, 1948), at
97-98.
41 Ibid.
42 Bollinger, note 12, at 55.
90 Trinity College Law Review [Vol. 14

underlies such expression, 4 3 and stave off the promulgation of further

intolerance. The airing of misunderstandings and failures of sensitivity,
through a free and open public forum, provides a more constructive and a
more likely means of promoting tolerance than hate speech bans represent.
By driving hate speech underground, hate speech bans merely exacerbate
tensions and thus cannot be considered to provide an effective means of
countering intolerance. As Nadine Strossen points out, there is no empirical
evidence from the countries that do suppress hate speech to suggest
otherwise. 44

The PsychologicalHarms Inflicted on the Victims ofHate Speech

To many cynics, free speech is seen as licensing people to inflict harm

upon others, causing injury not only to the immediate victim but also to the
particular group or section of society that the victim is a member of, or
associated with.4 5 Hate speech can thus have a powerful in terrorem effect
beyond the immediate victim's earshot, underlying the pernicious effects
hate speech can have on a community's sense of security. Hate speech has
an assaultive effect on its victims. The words used have been likened to
"weapons" 46 employed to ambush, terrorise, intimidate, humiliate, and
degrade their victims. Short and long term psychological effects are
characteristic of the harms inflicted upon victims of hate speech: anger,
fear, anxiety, helplessness, sleep-deprivation, depression and loss of self-
esteem are all common afflictions.
These attacks often take place against a background of historical and
ongoing discrimination and, as a consequence, the words from the victim's
perspective cut much deeper than one might otherwise expect. The long-
term cumulative harms amassing with the repeated bombardment of hateful
epithets perpetuate and reinforce feelings of inequality and inferiority that
are profusely "dispiriting and shameful."4 7 The negative messages
conveyed by hate speech eventually become internalised by their victims, 4 8

43 For instance, improvements could then be made to educational and employment

opportunities, in order to allay the underlying grievances that may have given rise to
intolerance.
44 Nadine Strossen, "Balancing the Rights of Freedom of Expression and Equality: A Civil
Liberties Approach to Hate Speech on Campus" in Sandra Coliver ed., Striking a Balance:
Hate Speech, Freedom ofExpression and Non-Discrimination(Article 19, 1992), at 306.
45 Fiss, note 27; Brink, note 9.
46 Mari Matsuda, Charles Lawrence, Richard Delgado and Kimberley Crenshaw, Words that
Wound: CriticalRace Theory, Assaultive Speech, and the FirstAmendment (New Perspectives
on Law, Culture and Society) (Westview Press Inc, 1993).
47 House of Commons Radical Attacks and Harassment(3 rd Report: Session 1985-6) HC 409
at para. 1.
48 Delgado, note 22, at 135-136.
2011] Hate Speech Bans 91

shaping their identity and standing within society. This ultimately brings
into existence a reality moulded by intolerance and hate for succeeding
generations to inherit.
It could be argued that these harms justify the prohibition of the
public dissemination of hate speech and the hateful attitudes they endorse.
Upon closer examination, however, it would seem that the weight placed
on the psychological harm inflicted upon victims of hate speech is
somewhat misplaced. As Weinstein points out there is not yet any
conclusive evidence to suggest that the degree of psychological injury
caused by hate speech is any more severe than that caused by other forms
of controversial speech. 49 To nevertheless implement such a broadly
inclusive rationale for the suppression of not only hate speech but any
speech which inflicts psychological harm upon its victims, would impinge
upon free speech principles to such an unreasonable degree that it would
ride roughshod over the very essence of a democratic society. Nonetheless,
hate speech does inflict undeniable harm - some would argue a
qualitatively distinct order of harm.so The problem is hardly insignificant
and one that cannot easily be ignored.
It is argued, however, that hate speech bans are concerned with the
protection of only the most vulnerable members of society. Pursuant to this
goal, attempts to confine the scope of regulation have focused on hate
speech which attacks an individual's immutable characteristics." There can
be little doubt that humiliating a person for a characteristic which they have
no control over and which is central to their personal identity is particularly
unfair. Prohibitionists would argue that it is this gross unfairness which
makes hate speech all the more injurious and deplorable, distinguishing the
harm it brings upon its victims from other forms of psychological injury
that may occur in the "rough and tumble" of public discourse.5 2 Such
intuitive notions about the relative evil of an act can be recognised as a
legitimate consideration when determining the corresponding degree of
punishment, and indeed the legitimate scope for regulation.
The concept of immutability, however, fails in its present day
application to provide a principled means of confining the breadth of this
psychological harm rationale. One problem is that the large number of
immutable characteristics susceptible to attack by hate speech suggests that
49 Weinstein, note 26, at 210.
5o Hare, note 22, at 417. This distinct form of harm could include the intuitive feelings of
retribution hate speech causes alongside its impact on its immediate victims and society as a
whole.
51 James Weinstein, "First Amendment Challenges to Hate Crime Legislation: Where's the
Speech?" (1992) 11 CriminalJustice Ethics 6, at 9.
52 Weinstein, note 26, at 209.
92 Trinity College Law Review [Vol. 14

the limitation may not be so confining. It is arguable that: intelligence,

mental illness, various physical characteristics (including obesity and
ugliness), alcoholism and antisocial inclinations, are all immutable
characteristics, vulnerable to the particular type of harm hate speech
inflicts upon its victims. But far from identifying the most vulnerable,
which would certainly have to include many of the physically or mentally
handicapped, the prohibitionists instead focus on interest groups that have
already achieved meaningful levels of media attention and political
protection.13 This disjunctive incoherence in protection inevitably
promulgates discrimination and inequality, the very ends hate speech bans
are supposed to mitigate, not promote.
Furthermore, the use of immutability as a qualifying criterion for
protection in itself creates an inherently discriminatory two-tiered system.
It divides society into those who may, and may not, be protected against
the harms of hate speech. Thus, although hate speech bans are purposed to
combat the evils of discrimination, it would seem to tacitly promote it
instead.
The use of immutability as a principled criterion for distinguishing
the qualitatively distinct order of harm hate speech can inflict upon its
victim has its merits. In reality, however, hate speech bans merely
encourage the pretence of the prohibitionist cause. The discriminatory
nature of the selection of certain immutable characteristics for protection,
over others with equal claim, is a point in hand. Hate speech bans which
garner their legitimacy in this way should be rendered null and void. After
all, discrimination represents an attack on the virtues of tolerance, equality
and democratic citizenship, and this remains true of the discriminatory and
contradictory character of hate speech bans also.

LibertarianBlindness

From a libertarian perspective, society's strengths lie not in its

unwillingness to interfere with fundamental rights, but in its commitment
to protecting the rights which provide the foundations for societal unity and
cohesion. As one of the most vocal academics advancing the
prohibitionist's cause in America, Mari Matsuda is, unsurprisingly a stern
critic of the strict libertarian position which besets the American

53 The exclusion of sex/gender from the protection currently offered by hate speech bans in
the UK is a notable exception. This is particularly notable given the persuasive and weighty
arguments for considering some forms of pornography to be a category of hate speech,
perceived by a number of academics such as Susan Brownmiller to be "the undiluted essence
of anti-female propaganda." See Susan Brownmiller, Against Our Will: Men, Women and
Rape (Bantam, 1975), at 443.
2011] Hate Speech Bans 93

experience.54 Matsuda contends that libertarian arguments reflect a clear

failure to appropriately weigh the real importance of equality against the
virtues of liberty. She states that the tolerance of bigoted expression for the
sake of maintaining societal tolerance of unpopular expression generally
places an unfair burden upon targeted, disempowered groups for the
benefit of the rest of society; this state of affairs is fundamentally
incongruent with the notions of equality that libertarians hold dear. She
goes on to argue that the libertarian approach represents "a blindness that
prevents lawmakers from seeing that [hate] speech is a serious threat,"5 5
which has a deleterious effect on society beyond its immediate victim(s).
However, one should caution against any over-exuberance in
advancing the prohibitionist's antidote to the poison of hate speech. As
Gellman states, bans on hate speech merely let us feel that we are doing
something. They offer a "quick simple fix for an extremely complex social
ill" but in reality can often prove to be self-defeating. 6 Indeed, hate speech
bans can be seen to be "diversionary" and in so being, may undermine the
impetus to adopt alternative, non-coercive measures which may be just as
effective, if not more so, in combating the prejudices and intolerances that
hate speech expresses. After all, it is questionable whether hate speech
bans do much more than mitigate hateful expression.
As John Morley puts it, "[y]ou have not converted a man because
you have silenced him."58 In a similar vein of thought, we must recognise
that hate speech bans are "no panacea" for the ills of discrimination.59 Hate
speech bans merely tackle the symptoms of society's prejudices and should
by no means be considered a cure. Indeed, one would be most na've to
expect anything more determinative.
The fact that there is no conclusive evidence for the proposition that
hate speech is a significant cause of violence or discrimination, nor any
evidence to show that hate speech bans reduce incidents of intolerance in
society, mean that it is imperative that alternatives to hate speech bans are
considered.
Much could be done to improve the situation, short of the enactment
of specific hate speech bans; for example, media campaigns and
educational initiatives are amongst the most popular non-coercive, grass-
root measures advanced towards promoting the values of tolerance in

54 Matsuda, note 22.

5 Ibid., at 2375.
56 Gellman, note 30, at 393.
5 Strossen, note 44, at 309.
John Morley, Rousseau, Volume ] (BiblioBazaar, 2008).
59 Brink, note 9, at 154.
94 Trinity College Law Review [Vol. 14

society. They avoid incurring the added expense of infringing free speech
principles, whilst also representing a more progressive and purposeful
means of combating the root causes of discrimination in society. It is not
clear, however, that these long-term, soft measures meet the immediate
needs of society today. It is not clear whether they would provide an
adequate deterrent to or a sufficient denunciation of a rising tide of
prejudice, discrimination and intolerance within society.
One alternative that may better address this predicament is the
adoption of, or a concerted emphasis on, hate crime laws, 60 which directly
legislate against criminal acts motivated by bigoted intolerance. It is
arguable that these legislative measures may prove more adept at tackling
the symptoms of societal prejudices, without compromising free speech
principles. 6 1 These measures are not purposed to suppress intolerant ideas,
or their expression, rather they are designed to deter and punish criminal
acts committed in the execution of these bigoted ideas, opinions, and
attitudes, which specifically target victims for primarily discriminatory
reasons. These provisions underscore the distinction between punishing a
person merely for holding an abstract belief and expressing it, and
punishing him for acting on those beliefs in such a way as to endanger
public order. Hate crime laws represent an explicit condemnation of the
conduct in question, acting as a symbolic, yet meaningful, denunciation of
crimes motivated by prejudicial animus. They positively address the most
reprehensible manifestations of intolerance in society and represent a
direct, purposive and contemporaneous means of suppressing the most
pernicious symptoms of intolerance within society. In contrast to hate
speech bans these measures can be seen to better meet society's needs, in
discouraging truly pernicious acts of intolerance without compromising
free speech principles which might best be left uninhibited pursuant to a
means of cultivating a tolerance ethic in society, and in so doing, propagate
a more robust and sustainable degree of peace, harmony and public order
within society.

Concluding Remarks

60 Hate crime laws can take one of two forms. The first is a distinctly separate offence (the
hate crime proper) which carries with it a more condign punishment than the predicate offence
alone. The second form, acknowledges bias/prejudicial motivation as a relevant aggravating
factor in determining sentence for the predicate crime. See Hare, note 22, at 416.
61 For a more in-depth commentary, with regards to First Amendment challenges to hate crime
laws, see Weinstein, note 51. For a more general overview see Hare, note 22.
2011] Hate Speech Bans 95

Hate speech bans are preventative measures which suppress views and
opinions that rub so strongly against the status quo, and the sensitivities of
society, it is feared civic unrest would result should they enter the public
sphere. In suppressing the symptoms, views, opinions and attitudes which
develop out of society's underlying prejudices, hate speech bans seek to
mitigate the escalation of intolerance in society and the harms that might
result. As a consequence, hate speech bans may be seen as a means of
preserving social peace and harmony in a modern era typified by
increasingly diverse pluralist societies.
Whilst hate speech bans are purposed to fulfil these ends, the above
discussion sheds some light on the false reality of hate speech bans in
practice. As has been shown, the resulting effects of hate speech bans are
often opposed to the very ends they are designed to achieve. The main
reason for this incongruence boils down to the fact that hate speech bans
are intrinsically indeterminate and contradictory in their nature.
It is clear that hate speech bans are aimed at helping to cultivate a
more tolerant society. However the very definition of a tolerant society is
one that is innately intolerant, but instead chooses to endure these
intolerances for the benefit of society, of equality and of democracy. The
problem with hate speech bans is that they are inherently contradictory to
such notions of tolerance. Hate speech bans are themselves a form of
intolerance, suppressing and subsequently excluding specific views and
opinions from public discussion which are no longer tolerated by society.
Censorship has traditionally been the tool of people who seek to
discriminate and subordinate, not those who seek to soothe intolerances.
Hate speech bans, seen in this light, perpetuate intolerance in society and
thus can be seen from the outset to be self-defeating; they are inherently
destined to fall short of the goals they are purposed to achieve and in so
doing tacitly promote the very ends they are purposed to mitigate.
As Gellman concludes, "hate speech bans do at once too much and
too little,"62 too much in the sense that they intrude upon free speech
principles and too little in justifying this intrusion. It would appear in the
end that the most resonant reason for avoiding the use of hate speech bans
resides in the fact that they represent a false and, most importantly, an
unnecessary choice between our sensitivities and our principles, a choice
we should now reconsider. It is time to look to measures which tackle more
than the mere symptoms of intolerance, measures which encompass a more
progressive means through which to cultivate and maintain tolerance in

62 Gellman, note 30, at 393.

96 Trinity College Law Review [Vol. 14

society. This objective is best pursued by affording free speech the respect
it deserves.