Should Hate Speech Be Included in Free Speech?

In the United States and other nations that advocate free speech and freedom of expression, one of the most important questions is where to set the parameters on unacceptable speech and expression. This is a particularly difficult dilemma for me. I am an extremely strong advocate for free speech and expression, even though I have been subjected to hate speech because of my ethnicity, culture and religion. I don’t think I am alone with this dilemma and I think it is a difficult area for many people. The principles of free speech and expression are relatively recent concepts, emerging only during the “Age of Reason and Enlightenment”.

During the Renaissance the issue of free speech and free expression became an issue of concern as scientific discover and inquiry conflicted with the chauvinism of the established European powers of monarchy and the Catholic Church. What immediately come to mind is the punishment of Copernicus and Galileo. As the Age of Reason began to bloom out of the soil of the Renaissance; freedom of inquiry and the sharing of information and discovery became a highly contentious issue. In the west, the Guttenberg Press effectively pulled the “cork out of the bottle” making it possible to share information more freely and quickly than ever before.

It was the English philosopher John Milton who effectively began the movement toward our modern notion of free speech and freedom of expression. The impetus for Milton was the Protestant Reformation and the right to investigate, interpret and publish religious thought and to make the bible available to all Englishmen. By the time of the American Revolution and the French Revolution shortly thereafter, freedom of speech and expression was one of the primary principles adopted by both the Americans and French. Probably the best-known defense of free speech and freedom of expression was from John Stuart Mill in his piece titled On Liberty published in 1859.

Mill specifically introduced a limitation on speech. “For Mill, the only instance in which speech can be justifiably suppressed is in order to prevent harm from a clear and direct threat. Neither economic or moral implications, nor the speakers own well-being would justify suppression of speech.” (Warburton-2009) Mill sets the bar very high with his harm principle and it would allow virtually allow all speech except that which leads directly to violence, such as yelling fire in a crowded theater. 

Joel Fienberg in 1985 introduced the “offense principle” which stated that Mill’s “harm principle” was insufficient in describing all conditions where speech should be limited. Fienberg maintains that free speech and expression can be limited when it becomes overly offensive in regards to the community and violates the accepted standards. Here are the two extremes; Mill supporting almost all speech except for direct enticement and Fienberg supporting all speech except that which the community finds offensive.  

The problem of Mills “harm principle” is that one must establish a direct connection to the speech or expression and a harmful act. In the case of hate speech; does it always result in harmful action, most of the time, or only occasionally? The answer is that it only occurs occasionally and the speech can’t be classified or isolated as the only independent variable resulting in the harmful action. So by Mill’s standard hardly any hate speech would meet the test of causing harm and would not be restricted.

Fienberg, on the other hand, sets the standard so low that any speech or expression; hate or otherwise, could be restricted based on the public perception of that which is offensive. Prime examples come in the form of pornography, the fine arts and the performing arts. Fienberg’s limitations are set by public sensitivity and perceived offense, which doesn’t appear to be free speech at all.

Now we come to the question of whether or not we can limit hate speech. If we follow Fienberg; since it is overwhelmingly offensive and violates community standards, then we can limit it. However, if we follow Mill, then it doesn’t always result in harm and we cannot limit it.

Following Mill for a moment, to limit hate speech would require an overriding causal connection between the speech and harm. Therefore, Mill would allow hate speech as free speech.

The solution to our dilemma has to be found somewhere between Mill and Fienberg. The test comes in the form of what constitutes harm. Does speech that advocates discrimination, isolation and dehumanization constitute harm? The Southern Poverty Law Center has been quite successful in winning cases where proof of nonviolent harm has been established. The ACLU has also been successful in defending all types of free speech and expression, even that of hate speech. Clearly the battle is to be found in the proving or disproving harm.

Libelous and slanderous speech pretty well follows Mill’s principles of harm. Those who claim defamation must prove that the speech caused harm and in the U.S. the speech must be based on untrue or misleading facts and/or allegations. In practice, libel and slander are difficult to prove. Public figures are more subject to negative speech, but it is hardly ever seen as slanderous or libelous; since defamation is accepted as part of the political process and/or that of being a celebrity.  

With the introduction of the Internet and its growth has resulted in a whole new arena of battle over free speech and expression. Generally there has been resistance to censure content on the Internet and other social media services, child pornography being the exception. As the Internet and social media develop, it is possible that our censorship will develop, but in general there hasn’t been overwhelming public will to do so.

As I close this piece, I think we must tolerate hate speech if we want to preserve other aspects of free speech and expression. Various forms of hate speech only survive as long as there is a willing audience for consumption of such. To control hate speech comes down to accepting personal responsibility and resisting the temptation to engage or promote hate toward an individual, group or nation. It’s up to us to control or to allow it to proliferate.  

 Warburton, Nigel (2009). Free Speech: A Very Short Introduction. Oxford. pp. 24–29. ISBN 978-0-19-923235-2.