Tolerating Hate in the Name of Democracy
| Author | Amanda R. Greene,Robert Mark Simpson |
| Date | 01 July 2017 |
| DOI | http://doi.org/10.1111/1468-2230.12283 |
| Published date | 01 July 2017 |
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REVIEW ARTICLE
Tolerating Hate in the Name of Democracy
Amanda R. Greene and Robert Mark Simpson∗
Eric Heinze,Hate Speech and Democratic Citizenship, Oxford: Oxford
University Press, 2016, 272pp, hb £60.00.
INTRODUCTION
Free speech theory has been entwined with theories of democracy since at least
the mid-20th century. American free speech jurisprudence has been shaped by
Alexander Meiklejohn’s view that democracy requires an informed electorate
and an unrestricted flow of information and, building on this, scholars like
Robert Post and James Weinstein have developed theories of the Fir st Amend-
ment grounded in ideals of democratic discourse and participation.1The links
between democracy and free speech are strongest in American legal theory,
but they do important work elsewhere too. In Australia, for instance, free
speech isn’t explicitly asserted in the constitution, but courts have found an
implied right to free political communication in the constitution’s guarantee of
a democratic government.2
Ronald Dworkin spells out the link between democracy and free speech in
terms of state legitimacy.3The state’s enforcement of the law ‘downstream’, he
argues, is only democratically legitimate if it allows unfettered debate ‘upstream’
over the ideals being enforced. In Hate Speech and Democratic Citizenship,Eric
Heinze defends a novel version of this kind of view, arguing that the freedom
to express our views – including views that would qualify as hate speech –
must be ‘safeguarded not only as an individual right, but as an essential attribute
of democratic citizenship’(4).
4He sees robust free speech protections as ‘mate-
rially constitutive’ of democracy (5), so a society that prohibits hate speech
isn’t fully democratic. Part of what distinguishes Heinze’s view is that he thinks
we shouldn’t use a r ights framework to articulate a democratic theory of free
∗Thanks to Eric Heinze, Gavin Phillipson, and an anonymous reviewer for detailed and helpful
comments on an earlier draft.
1 A. Meiklejohn, Free Speech and its Relation to Self-government (New York: Harper & Brothers,
1948); R. C. Post, ‘Racist speech, democracy, and the First Amendment’ (1990) 32 William and
Mary Law Review 267; J. Weinstein, ‘Participatory democracy as the central value of American
free speech doctrine’ (2011) 97 Virginia Law Review 491.
2 See G. Williams, Human Rights under the Australian Constitution (Oxford: OUP, 2002).
3 R. Dworkin, ‘Foreword’ in I. Hare and J. Weinstein (eds), Extreme Speech and Democracy (Oxford:
OUP, 2009) v-ix.
4 E. Heinze, Hate Speech and Democratic Citizenship (Oxford: OUP, 2016) (emphasis in original).
Note: subsequent page citations will be presented in-text as numbers in brackets.
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(4) MLR 746–765
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Amanda R. Greene and Robert Mark Simpson
speech. Whereas liberals see rights as ‘shields against outright legislative . . .
balancing of conflicting social interests’, Heinze thinks this doesn’t give due
priority to free speech, because r ights have become ‘entrenched within balanc-
ing processes’, in a way that makes it too easy to override them (9). It’s true that
in most jurisdictions speech rights don’t categorically constrain policy, and it
isn’t difficult to see why. Hate speech creates a conflict between some people’s
speech rights, and other people’s right to be free from verbal abuse. In order
to defend hard-line protections for free speech in the face of such conflict, the
options are either to say that speech rights are infinitely stringent, or that there
isn’t in fact a right to be free from verbal abuse. Heinze offers us a way out of this
dilemma. Free speech should be categorically protected, not because speech
rights are infinitely stringent, but because we have an overr iding commitment
to living in a democracy, and free speech is an uncompromisable element of
this. This view about the demands of democracy primarily applies to what
Heinze calls Longstanding, Stable, and Prosperous Democracies (or LSPDs), as
contrasted with fragile democracies and non-democratic states. This distinc-
tion represents an intriguing methodological innovation– an attempt to think
abstractly about what democracy as such calls for (13), but without completely
reverting to utopian ideal theory.
After presenting a synopsis of Heinze’s view in the next section, we explore
three main lines of criticism against it. In the third section we explain how
Heinze partitions the concept of legitimacy in order to isolate a notion of
democratic legitimacy, and we argue that this unduly emphasises free public
discourse as the defining feature of a democracy. In part four we raise some
concerns with Heinze’s reliance on the idea that the demands of democracy
are hypothetically binding rather than categorically binding. While Heinze
needs to say that democratic requirements are a merely hypothetical imperative,
we show that this is a hard case to make. We also suggest some problems
with Heinze’s historical inductive argument that LSPDs are uniquely equipped
to counter the negative consequences of hate speech. In the fifth part we
suggest that, given Heinze’s view of democratic legitimacy, an LSPD that is
responding to hate speech’s targets must say that upholding democracy matters
more than relieving these people’s suffering. We raise some concerns about an
understanding of democracy that has this implication.
SYNOPSIS
Heinze’s aim is to argue against hate speech bans, by which he means le-
gal restrictions ‘on hateful (both verbal and non-verbal) expression’ (19). He
thinks a state cannot restrict hate speech without thwarting its legitimacy as a
democracy, because the prerogatives of free speech are an essential attr ibute of
democratic citizenship.
This differs from a standard liberal view of expressive liberty, spelled out
in terms of a right to free speech. And Heinze is critical of the methods
liberals use in trying to identify the scope of speech rights. International human
rights treaties are of little help, because they don’t really mean what they say.
For instance, the ICCPR says ‘everyone shall have the right to freedom of
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(4) MLR 746–765 747
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