Viewpoint Absolutism and Hate Speech
| Date | 01 July 2006 |
| Published date | 01 July 2006 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00599.x |
Viewpoint Absolutism and Hate Speech
Eric Heinze
n
All Western European states currently prohibit various forms of racist, sexist,
anti-religious, homophobic, or other intolerant speech. Yet hate speech bans gen-
erate pervasive indeterminacy and contradiction. It might be assumed that they
are no di¡erent in that respect from other laws that are subject to vagueness, but
are nonetheless socially necessary. This article, however, rejects that assumption. It
is argued that hate speech bans’ internal contradictions are not merely‘penumbral’,
but are pervasive, and cannot be re-drafted to eliminate that defect. In contrast to
traditional marketplace, peacekeeping or deontological theories, a coherence the-
ory is proposed to suggest that Western European hatespeech bans are inherently
discriminatory, and should be abolished. It is further argued that post-World War
II models of a European social welfare state, sometimes invoked to justify limits
on unbridled liberalism, do not plausibly justify hate speech bans, and indeed
provide grounds for expanding, rather than constraining, free speech.
Die innerliche Erregung, die wahre Leidenschaft, ¢ndet ihre eigentˇmliche Sprache
in dem Augenblicke, wosie, nachVersa
ºtndnis ringend,zur Mitteilung sich anla
ºt: der
. . . Jude hat keine wahre Leidenschaft, am allerwenigsten eine Leidenschaft, welche
ihn zum Kunstscha¡en aus sich dra
ºngte.[. . .] Wasso der Vornahme der Juden, Kunst
zu scha¡en, entsprie
t, mu
daher notwendig die Eigenschaft der Ka
ºlte, der Gleich-
gˇltigkeit, bis zur Trivialita
ºtundLa
ºcherlichkeit an sich haben . . .
RichardWagner
1
What he really deserves most is ridicule.
Ernest Hemingway on Ezra Pound’s anti-Semitism
2
n
Readerin Law,Queen Mary,Universityof London.This article bene¢ted greatly from the comments
of Evert Alkema, Eric Barendt, Charles Calleros, Carolyn Evans, Jonathan Gri⁄ths, Peter Molnar,
Michael Salter, David Seymour, PatrickThornberry, James Weinstein and Tony Wood. Thanks also to
the anonymousreviewersof the originalsubmission. Ideas in this paper were ¢rst presentedat a confer-
ence entitled‘Mainstreaming Diversity’, sponsored by the LuxembourgGovernment Commission for
Foreignersand Ministry for Family andIntegration, 27^28June 2005 at Mondorf-les-Bains, and a con-
ferenceentitled ‘HateSpeech fromthe Street to Cyber-space’,31March^1April 2006, in Budapest,Hun-
gary, sponsored byTheFloersheimer Center forConstitutional Democracy at the Benjamin N.Cardozo
School of Lawand the Center for Media and Communications Studies (CMCS) at the Central Eur-
opean University,Budapest.Thanks also for an invitation to presentparts of this paper at a Law Faculty
seminarof the Universityof Warwick,and for livelyexchangeswith myown colleagues at Queen Mary.
1 R.Wagner,‘Das Judentum in der Musik’ in J. Malte Fischer, Richard Wagners ‘DasJudentum in der
Musik’ (Frankfurt a.M: Insel, 2000) 162 [‘Deep excitement, true passion ¢nds its own voice at
the moment when, striving to be u nderstood, it seeks expression . . . [T]he Jew has no true pas-
sion, least of all the kind of passion that could driveh imtowards artistic creation. [. . .] Anything
that £ows fromJewish artistic pretension must necessarily have an element of coldness, indi¡er-
ence, even triviality and foolishness. . . .’(my translation)].
2 BBC News World Edition, ‘Faces of the Week: Ezra Pound’ 13 August 2004, http://news.
bbc.co.uk/2/hi/uk_news/magazine/3559924.stm (last visited 05/04/2006).
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(4) MLR 543^582
‘Any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.’That pronounce-
ment of the International Covenanton Civil and PoliticalRights
3
(ICCPR), arti-
cle 20(2), counts among the strongest condemnations of hate speech. It has been in
force now for thirty years, alongside other international norms, and alongside
nationalprohibitions across the globe.
4
It may well represent a norm of customary
law,
5
which would mean that states would be responsible in international law for
banning at least some forms of hate speech even if they are not parties to the
ICCPRor other instruments containing similar norms.
Western European states have alwayscounted among the mostdiligent adher-
ents to the ICCPR, and have all adopted domestic hate speech bans. Albeit in a
non-binding resolution, the Committee of Ministers of the Council of Europe
(COM-COE) re£ects the trend towards expanding the scope of hate speech bans
in calling upon membe r states to combat,
Statements .. . which may reasonably be understood as hate speech, or as speech
likely to produce the e¡ect of legitimising, spreading or promoting racial hatred,
xenophobia, anti-Semitism or other for ms of discrimination or hatred based on intol-
erance.
6
That ‘other forms’ clause could plausibly be extended to any numberof character-
istics that have long been targets of abuse, such as sex
7
or sexual orientation.
8
For
example, a member of the French National Assembly has been convicted of
homophobia (injures homophobes) for claiming that heterosexuality is morally
superior to homosexual ity.
9
Against that global and European trend, the United States stands as a ¢erce
dissenter. Under the First Amendment to the US Constitution, the Supreme
Court has struck down
10
preciselythe kinds of hate speech bans thati nternational
norms require.
11
As in so manyareas, theUnited States can be seen as aberrantç
parochially, even wilfully, defying an international consensus founded on a
powerful humanitarian concern.
12
From the death penalty to armed invasions to
3 993 UNTS 3, entered into force3 January 1976.
4 See, eg, K. Boyle, ‘Hate Speech:The United States versus the Rest of the World?’ 53 Maine Law
Review 487 (2001); J. and R. Delgado,‘A Shifting Balance: Freedom of Expression and Hate
Speech Regulation’ (1992) 78 Iowa Law Rev 737; D. Kretzmer,‘Freedom of Speech and Racism’
(1987) 8 Cardozo L Rev 445,464.
5See,eg,Boyle,ibid, 495^496.
6 Recommendation No R (97) 20E (1997), Principle 1 (my emphasis).
sible ground of discrimination). Cf,eg, Boyle, above n 4, 489. Cf also, eg, C. MacKinnon, Only
Wor d s (Cambridge: HarvardUniversity Press, 1993).
8See,eg,Salgueiro da SilvaMoutavPor tug al, [1999] ECHR 176 (con¢rming sexual orientation as an
9 ‘Lede
Łpute
ŁUMPC hristianVanneste condamne
Łpour injures homophobes’, Le Monde,25 Jan 200 6,
http://www.lemonde.fr/web/article/0,1- 0@2-3224,36-734288,0.html (last visited 05/04/2006).
10 See, eg, R.A.V.vStPaul, 505US 377 (1992);Virg inia vBlack, 538 US 343 (2003).
11 See,eg,‘Conclusions and Recommendationsof the Committee on the Elimination of Racial Dis -
crimination, United States of America,’ UN Doc A/56/18 (2001), at para 391(criticis ingUS pro-
tection of hate speech).
12 Cf, eg, E. Heinze,‘Inside the Outsider:Cr iticalRace Theory against HumanRights?’ (forthcom-
ing).
Viewpoint Absolutismand Hate Speech
544 rThe Modern LawReview Limited 2006
(2006) 69(4)MLR 543^582
detention of ‘enemy combatants’, America’s respect for human rights has raised
serious concerns, and many would hesitate before turning to American law for
lessons on civil rights and liberties. I shall not, the n, undertake a thoroughgoing
defence of American approache s tohu man rights. I shall nevertheless argue that a
First Amendment approachto hate speech is not only preferable for stable, mature
and prosperous Western European democracies, but can in fact work better in
those states than it does in the UnitedStates.Western European states,by combin-
ing First Amendment protections of speechwith their traditional safeguards from
unbridled liberalism, are better situated than is the United States tocombat intol-
erance through non-coercive means. I shall therefore advocate the abolition of
hate speech bans inWestern Europe.
As there is already a substantial literature on hate speech, I shall try to avoid
themes that have already received much attention. Instead, I shall focus on two
ideas. First, I shall adopt a theoryof ‘viewpoint absolutism’çnot dissimilar from
well-known theories of ‘free speech absolutism’, but aimed at overcoming some
of the di⁄culties thelatter phrase can create. Secondly, I shall propose a‘coherence
theory’as an alternativeto the more familiar theories that have traditionally been
used to defend free speech, such as classical liberal, republican orconsequentialist
(eg, marketplace or peacekeeping) theories. I shall argue that Western European
hate speech bansi nvolve deep contradictions that promote hypocrisy, discrimina-
tion and disrespect for the rule of law. Those contradictions are not the usual
‘penumbral’ indeterminacies surrounding an otherwise straightforward ‘core’ of
clear and coherent norms. Rather, at their very heart, hate speech bans, despite
their task ofstrengthening equality, tolerance or democratic citizenship, do much
to underminethose values.More importantly,there is no waythey can be re-writ-
ten so as to eliminate or avoid those defects. I’ll concede from the outset that abo-
lition of hate sp eech bans inWestern Europe, although ful ly feasible, is unlikely to
occur any time soon. Many governmentswould hesitate before adopting contro-
versial positions on norms that are now well established in international and Eur-
opean human rights law, particularly when they are likely to see little political
advantage in doing so. Nevertheless, if hate speech bans are to remain, we should
understand their defects.
Why focus on Western Europe? Crucial to hate speech is its actual orperceived
relationship to action, possibly violent action. A state’s ability to prevent or com-
bat violence maydepend on its relative stability, wealth and democratic traditions.
This article will be limited to su⁄ciently stable, prosperous states, whose demo-
cratic institutions have endured long enough to become widely assimilated
within everyday attitudes and practices. Yes, criteria like ‘stable’, ‘prosperous’,
‘assimilated’, ‘attitudes’, ‘practices’ and indeed ‘democracy’ are hardly clear i n all
cases. For purposes of this article, however, I shall assume that Western European
states generally ful¢l them. I shall argue that it is incompatible with such democ-
racies that the state should coercively silence ideasthat are, in COM-COE’s words,
‘based on intolerance’. Western European states dispose of ample non-coercive
means of combating intolerance, without having to commit the injustices that, I
shall argue, arise under hate speech bans. By extension, my arguments couldalso
be said to apply to other su⁄ciently strong democracies, such as those of Australia,
Canada, Japan, New Zealand, or at least some Africa, Asian, Eastern European or
Eric Heinze
545
rThe Modern LawReview Limited 2006
(2006) 69(4)MLR 543^582
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