In Political Liberalism, John Rawls asserts that no society can include within it all forms of life. He explains that intolerant religions will cease to exist in well-ordered societies. Coercive religions that demand the suppression of other religions, that insist upon constitutional establishment, or that demand the adoption of a certain comprehensive conception of the good by all will die out. Rawls speaks of reasonable pluralism, a just basic structure within which permissible forms of life have a fair opportunity to maintain themselves while securing equal basic liberties and mutual toleration.
Building on Rawls’ theory, Waldron explains that a well-ordered society that is consistent with democratic values cannot be racist or encounter the hate speech dilemma. There is no need for hate speech legislation in such a society because its citizens have no motivation to express themselves in such a way. Furthermore, Waldron argues in The Harm in Hate Speech that hate speech legislation should aim to protect people’s dignity against assault. It is there to protect the targets’ equal status in the community, their entitlement to basic justice and to the fundamentals of their reputation (p. 106).
Waldron maintains that there is a sort of public good of inclusiveness that our society sponsors and that it is committed to. Hate speech undermines this public good, or it makes the task of sustaining it much more difficult than it would otherwise be. Hate speech creates an environmental threat to social peace, a “sort of slow-acting poison, accumulating here and there, word by word, so that eventually it becomes harder and less natural for even the good-hearted members of the society to play their part in maintaining this public good” (p. 4). Waldron argues that hate speech seeks to establish a rival public good as “the wolves call to one another across the peace of a decent society” (p. 94).
Waldron emphasizes the notion of dignity, arguing that hate speech undermines the dignity of the person. A person’s dignity is not just some Kantian aura. It relates to people’s social standing, the fundamentals of basic reputation that entitle them to be treated as equals in the ordinary operations of society. Hate speech aims “to besmirch the basics of their reputation, by associating ascriptive characteristics like ethnicity, or race, or religion with conduct or attributes that should disqualify someone from being treated as a member of society in good standing” (p. 5). Hate messages undermine the targets’ equal status in the community, their entitlement to basic justice and to the fundamentals of their reputation.
One of the champions of freedom of expression in its widest possible form that includes toleration of the bigot is Ed Baker. Baker advances the autonomy concept in defense of the agent’s freedom of expression. He argues that respect for personhood, for agency, for autonomy, requires that each person be permitted to be herself and to present herself. The government’s role, according to Baker, is to ensure that each person could present herself and her values to others. The content of expression is immaterial. Racist hate speech is as legitimate as respectful speech. Both types of speech embody the speaker’s view of the world and express her values. As the government is to take the speaker’s autonomy and her self-development very seriously, all forms of speech should be protected. Legal restrictions on racist or hate speech are prohibited because they violate the speaker’s formal autonomy. Thus, Baker pushes to the other extreme: in his view, the interests of the audience, of the bystander and of the society at large do not really matter. Only the speaker’s autonomy matters and the government should provide her with all the possibilities to cultivate her ideas and to promote her values, even if those values are vile and come at the expense of the values of other members of society. Baker’s view is striking in its indifference to vulnerable minorities in society. Somehow Baker assumes that capacities to speak in society are equal, and people, as speakers, are always able to promote their values and ideas. People, according to Baker, choose whether they are to be offended by hate speech.
In his critique of Ed Baker’s view, Waldron (p. 165) rightly notes that it remains the case that hate speech damages the dignity and reputation of individuals in vulnerable groups; it undermines the public good of socially furnished assurance with which the dignity of ordinary people is supported; it remains the case that the hateful disclosure of racist attitudes through public speech defaces and pollutes the environment in which members of vulnerable groups have to live their lives and bring up their children. Waldron explains: “To the extent that the message conveyed by the racist already puts them on the defensive, and distracts them from the ordinary business of life… to that extent, the racist speech has already succeeded in one of its destructive aims” (p. 171). Baker gives no convincing reason why society should not pay attention to the harm that is wrought at this stage. Furthermore, I may add that Baker fails to understand that the issue is not merely of strong-willed individuals who are capable of choosing the right response: to be offended, to suffer psychological harm, to ignore, to take something positive from the hateful slur, to learn from it etc. Baker fails to understand that sometime the pain is so strong, so immediate, so penetrating, so instant, that this luxury of choosing a response is absent. It is in the mind of strong-willed liberals like Baker. It is not a mental process readily available to targeted minorities who wish to have equal standing in society and feel that they need to fight for it, still.
American liberals argue for freedom of speech, saying that suppression of speech would only drive the controversial views underground. Waldron is not impressed. For him it is unclear what is less damaging: to have bigotry freely aired in public, or driving it to the underground. Waldron rightly argues that we actually want to isolate the bigots rather than permit them contact and coordination. Waldron acknowledges that there is a cost involved as transparency is lost but it is not at all clear that driving the hateful message underground is altogether a bad thing (pp. 95-96). Indeed, when bigots and racist are forced to go underground, they are denied the oxygen of publicity and acceptability. This makes their operations more difficult and complicates their attempts to link up with other bigots and recruit new members.
In his critique of the American First Amendment position, Waldron notes (p. 185) that Britain has laws that prohibit racial and religious hatred (Public Order Act 1986) and racial discrimination (Race Relations Act 1976). Hate speech laws aim to protect the public good of dignity-based assurance, and to block the construction of the rival public good that the racists and Islamophobes are seeking to construct among themselves (p. 95). Are these laws illegitimate? Was their enactment inappropriate and their enforcement morally wrong? Furthermore, almost all democracies have hate speech laws. Are they all wrong and only the United States, which protects hate speech, is right?
The Harm in Hate Speech is the best comprehensive book from a liberal perspective, written by legal philosopher, endorsing hate speech legislation. Waldron makes a powerful argument that surely promotes exchange and debate.
Some of Waldron’s American colleagues might now tag him as pseudo-liberal and quasi-fascist. Some of them might drop the ‘quasi’ qualification. Many of the American First Amendment scholars are not interested in what other countries think about racism and hate speech, are not aware of hate speech legislation, or both. But if they are interested to engage in debate about this highly contentious issue, Waldron provides plenty of discussion points. In the spirit of John Stuart Mill, they have nothing to lose: either they would affirm their own viewpoint, or be convinced that protecting hate speech is false. As nobody would wish to live with falsehood, they would then accommodate their view. Most non-American liberal scholars will find Waldron sensible and applaud his careful reasoning.
Suggested Citation: Raphael Cohen-Almagor, Book Review, The Harm in Hate Speech (Jeremy Waldron, 2012), February 25, 2013, available at: http://www.iconnectblog.com/2013/02/book-review-jeremy-waldrons-the-harm-in-hate-speech.
 John Rawls, Political Liberalism (NY; Columbia University Press, 1993): 196-198.
 See, e.g., C. Edwin Baker, “Harm, Liberty and Free Speech,” Southern California Law Review, Vol. 70 (1997); “Autonomy and Hate Speech,” in Ivan Hare and James Weinstein (eds.), Extreme Speech and Democracy (Oxford: Oxford University Press, 2009).