CULTURAL SPECIFICITY

Yet another way in which cultural diversity can figure in arguments about free speech and its limits is through variations in the ways different cultural communities understand and valorize normatively relevant features such as liberty, health, autonomy, security, and dignity. Some multiculturalists maintain that in the context of culturally diverse societies, what majority cultural communities owe to minority cultures is an acknowledgment that the way the latter interpret the meaning and importance of minimum uni-versal values can be as valid , and certainly deserve to receive as much careful consideration , as the interpretations favored by the majority cultural com-munity. For example, Parekh argues that much of the disagreement between sponsors and critics of hate speech law emanates not from disagreement about which human values are at stake but from divergent beliefs about

the content and relative importance of these values, where people’s beliefs, and their sense of epistemic surety in holding their beliefs, is rooted in the particulars of their own cultural communities (i.e., histories, experiences, sensitivities, institutions, practices, authorities). As Parekh puts it, in recent controversies over putative Islamophobic and anti-Islamic speech, a belief that free speech values have absolute priority in comparison to other values

‘came naturally to philosophers, creative writers and others with an under-standable occupational bias in favour of free speech’ (Parekh 2006: 353).

In contrast, a belief in the preeminence of the values of dignity and reputa-tion came naturally to the tradireputa-tional, religious cultural communities who believed themselves to be under attack (2009: 63–66). ¹¹

I wish to explore this line of thought more fully using the example of dig-nity. Parekh highlights two kinds of dignity that could be (re-)interpreted by particular cultural communities to support their case for legal protection from hate speech. The first is human dignity . Parekh suggests that having a sense of human identity and with it a sense of human dignity is partly a realization

‘of the fact that human beings differ from the rest of the natural world in their physical and mental constitution, can do things and form relationships that are beyond the reach of even the most developed animals’ (Parekh 2008:

26). In other words, human dignity is a ‘hierarchical concept and describes a privileged status’ (2006: 130). ‘This is why every discussion of human dignity directly or indirectly contrasts humans with animals, emphasizes their superi-ority, and insists that they may not be treated as if they were animals’ (ibid.).

What is more, Parekh points to human dignity as one of several ‘important values’ that might justify limits on free speech (2005–2006: 216). The logic of this argument is that hate speech can be an affront to human identity/dignity when it denies or challenges the humanity of the intended group of persons.

Among the few concrete examples of hate speech cited by Parekh (215) the one that comes closest to an affront to human identity/dignity in the afore-mentioned sense is the example of football fans making monkey noises and chanting racist slogans at black football players (ibid.).

At this stage, it might be wondered what an acknowledgment of cul-tural specificity brings to the table since the aforementioned argument from human dignity would appear to be transcultural. However, Parekh is at pains to point out the close relationship between human dignity and culture. For starters, it is relatively clear from Parekh’s description of the capacities that underpin human identity/dignity—‘the ability to think, rea-son, use language, form visions of the good life, enter into moral relations with one another, be self-critical and achieve increasingly higher levels of excellence’ (Parekh 2006: 129)—that many of these capacities are oriented toward the acquisition of culture. More importantly, Parekh maintains that human identity/dignity ‘is not inherent in human beings, but is a status they confer on themselves’ through the various beliefs and values of the cultural communities to which they belong (130; see also 2008: 27). Parekh cites the example of religious beliefs. ‘Since the concept of human dignity is based

on a sharp distinction between humans and non-humans, it is central to those traditions of thought such as the Greek, the Christian and the Islamic which set much store by that distinction’ (2006: 131). In that sense, it is through the lenses of our different cultural communities that we come to give detailed substance to our latent sense of human identity/dignity and to our expectations of dignified treatment from others, including the expecta-tion not to be targeted by hate speech that reduces us to animals.

Parekh believes that a second kind of dignity is also ‘central to the good life and deserve[s] to be safeguarded’ (Parekh 2005–2006: 216). This is social dignity or the ‘protection of one’s good name and honour’ (ibid.). At the heart of this kind of dignity stands ‘social identity.’ All individuals identify themselves, and are in turn identified by others, with a variety of relation-ships and with various occupations, roles, and memberrelation-ships in a multitude of organizations, groups, and communities (2008: 15). Parekh claims that social identity weighs heavily on some individuals, as a cross they bear or something they would rather forget, whereas other individuals actively seek it out and embrace it (17–21). For example, some British Muslims (accord-ing to Parekh) have turned toward faithful Islamic practice in order to give themselves ‘a sense of dignity and identity, a particularly noticeable trend among college and university students’ (2009: 77). Parekh suggests that one of the key ways in which social identity/dignity can be safeguarded is through libel law. Libel is an offense, according to Parekh, ‘not because it causes pain to or offends the feelings of the individual concerned [. . .] but because they [sic] lower him in the eyes of others , lower his social standing, and harm his reputation ’ (2006: 313). For Parekh, this explains why ‘[m]any Muslim, Jewish and other minority spokesmen in Britain, the USA and else-where have argued that [the offense of libel which is generally restricted to individuals] should cover racial, religious, ethnic and other communities as well’ (ibid.). ¹² ‘Like individuals, communities too can be objects of libel, for one can make public, untruthful and damaging remarks about them which lower them in their own and others’ eyes, harm their reputation and social standing, and go beyond fair comment’ (ibid.). Parekh cites the example a poster of a woman wearing a Burka with the accompanying text: ‘Who knows what they have under their sinister and ugly looking clothes: stolen goods, guns, bombs even?’ (2005–2006: 215). He claims that such hate speech ‘damages their sense of dignity’ (223).

In what sense is this an argument about cultural specificity? For one thing, every cultural community will have its own ideas about which social identities merit protection from damaging hate speech. It is no accident, for example, that in the UK just a few years after religious groups (including Muslims) were granted legal protection against incitement to hatred on the grounds of religious affiliation, gays and lesbians were given the same pro-tection against incitement to hatred on the grounds of sexual orientation.

This is because in the UK gay and lesbian identity/dignity was recognized as something valuable and equally deserving of legal protection, alongside

racial and religious identity/dignity. This may not be true of other cultural communities. In Russia, for instance, Art. 282 of the Criminal Code pro-hibits incitement to hatred on the grounds of religion, national, or racial affiliation only. Neither gender nor sexual orientation are recognized. ¹³ In addition to this, Parekh’s observations about group libel diverge from those of Waldron, and they do so partly because of the space that Parekh leaves for culture. As discussed in Ch. 5 , Waldron views social dignity, at least the sort that justifies criminal laws proscribing group defamation, as essentially a matter of civic dignity. Civic dignity has to do with one’s place in the political community, meaning that citizens who enjoy civic dignity have a right to the protection of their reputation as members of the community in good standing. However, as discussed in Ch. 5 [5.3], eligibility for a high and equal sociolegal status might be thought to depend on whether or not persons have contributed or will contribute to the civic life of the commu-nity, and, if so, this narrows the range of characteristics that qualify persons as being entitled to legal protections. For Parekh, in contrast, social identity, of the sort that merits protection, can be based around membership of cul-tural communities (Parekh 2008: 24–25).

Nevertheless, Parekh also fails to disambiguate the different clusters of laws/regulations/codes that might be used to deal with attacks on human and social dignity, and this has unforeseen consequences for the plausibil-ity of the aforementioned culturally sensitive arguments in favor of hate speech law. As already mentioned, Parekh cites the example of football fans making monkey noises and chanting racist slogans at black football play-ers. In the context of the UK, this example would come under s. 3(1) of the Football (Offences) Act 1991 (‘It is an offence to engage or take part in chanting of an indecent or racialist nature at a designated football match’).

Then again, laws/regulations/codes that disallow the public expression of hatred, including through the use of insults, slurs, or derogatory epithets, are among the hardest to justify within the cannon of hate speech law. They are set on a collision course with some important free speech principles, including the Principle of Self-Realization (see Ch. 4 [4.3]) and the Principle of Democracy (see Ch. 7 [7.1]). This is because even racist chanting at foot-ball matches cannot be automatically dismissed as being wholly inarticulate or having no ideational content, even if it can be dismissed on the grounds of weighing its costs and benefits (cf. Posner 2002: 145–146). Indeed, if, as seems likely, football fans form their own cultural communities with their own stadium patois, then even the Principle of Culture might rule out legal restrictions that threaten the survival of this culture.

Furthermore, Parekh presents as an argument for law proscribing ‘com-munal libel or group defamation’ (Parekh 2006: 313) the fact that such speech can damage social identity/dignity. But he conflates the two differ-ent uses of the term ‘group libel law’ that I distinguished in Ch. 2 [2.1]. He defines ‘libel’ as making ‘public, untruthful and damaging remarks about an individual that go beyond fair comment’ (ibid.) and draws a direct parallel

between libel law and group libel law. This implies that he has in mind law proscribing group libel ( sensu stricto ). But then this makes it hard to accept his claim that ‘[t]o say that “all Jews are secretive, greedy, vindictive and conspiratorial”, that “all blacks are stupid, unruly, licentious and unreli-able”, or that “all Indians are devious, cheats, manipulative and undepend-able” is clearly to libel these communities in the sense defined earlier’ (ibid.).

In order to count as group libel ( sensu stricto ) statements must amount to false statements that can be falsified on issues of fact. The expression of opinion, judgment, or hyperbole does not count, and the examples Parekh offers would all seem to be instances of opinion in that sense. Indeed, they point not in the direction of criminal group defamation law ( sensu stricto ) but toward laws/regulations/codes that constrain uses of hate speech when it amounts to negative stereotyping or stigmatization. This is further sup-ported by Parekh’s claim that ‘[g]iven the deep streak of anti-Semitism and anti-black racism in western societies, (as indeed in many others), and given the need to counter the malicious stereotypes to which they have both been subjected over centuries with disastrous results, Jews and blacks would seem to qualify for anti-libel laws in most western countries’

(2006: 316). ¹⁴

Further grounds for thinking that the aforementioned culturally sensitive arguments are really arguments for laws/regulations/codes that constrain negative stereotyping or stigmatization comes from Parekh’s 2009 article on Muslims in Europe. Here he asserts that ‘[t]he twelve Danish cartoons that lampooned the Prophet Muhammad [. . .] and the commentaries that accom-panied them led Muslims to conclude that their community and religion were regarded as backward and unfit to be part of civilized Europe’ (2009:

55). Specifically, he describes the article, ‘Something Rotten in Denmark?’, published in the Danish magazine National Post as an attempt ‘to demonize Muslims and generate powerful feelings against them’ (58). Among other things, the article included the statement, ‘Muslims are only 4 percent of the Denmark’s 5.4 million but make up a majority of the country’s convicted rapists.’ If, as Parekh seems to think, Muslims had a valid reason to request legal action against the publication of this article, what cluster of hate speech law would have been useful? Although s. 266b(1) of the Danish Penal Code prohibits forms of expression ‘by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin, religion, or sexual inclination’, public prosecutors in Denmark elected not to bring charges against the authors of the article under this law. They viewed it as being unlikely that a court would deem its content to have reached the requisite level of threat, insult, or degradation. Moving from actual Danish law to possible law, perhaps the statement could have constituted incitement to religious hatred. ¹⁵ Then again, it might be hard to prove intent to incite hatred. Finally, it seems unlikely that a conviction for an offense of group defamation ( sensu stricto ) would have been possible. Its authors might have been able to use a truth defense (either that the statistic was true or that they

had cited the statistic in good faith and in reasonable belief that it was true).

It seems far more plausible to say that this sort of statement could fall under the remit of media regulators whose rules and guidelines require newspa-pers, magazine, TV production companies, and so on, to place reasonable limits on uses of hate speech when it amounts to negative stereotyping or stigmatization. The statement counts as negative stereotyping and stigma-tization because it depicts Muslims in a wholly adverse light and presents only a narrow or one-sided picture of reality, such as by failing to point out the fact that only a tiny minority of Muslims are convicted rapists and omitting to mention other possible explanations besides religious affiliation as to why conviction rates for rape might be higher for Muslims than for non-Muslims in Denmark.

Indeed, Parekh himself insists that from the mere fact that some uses of hate speech are morally unacceptable under culturally sensitive interpreta-tions of minimum universal values such as dignity, it does not follow that criminalizing hate speech is warranted all principles considered. He argues that the overall warrant of using the criminal law to deal with the problem depends on the wider options open to targeted groups and on the general level of development of the society. Wherever possible a cultural commu-nity targeted by hate speech should ‘rely on other forms of pressure, such as a powerful press council, organized disapproval by enlightened public opinion, social or economic sanctions against individuals and organizations shown to be guilty of communal libel, and a declarative and non-punitive law’ (Parekh 2006: 316–317). This reference to ‘a powerful press council’

speaks to the sorts of media regulations limiting the use of negative stereo-typing and stigmatization that can be found in media law and regulation in many parts of the world.

Interestingly, Parekh also draws a distinction between, on the one hand, developed Western societies that enjoy ‘several mechanisms to cope with hate speech and its consequences, such as an open and competitive economy, a vibrant civil society, a reasonably cohesive and integrated society, a varied media representing a wide spectrum of views, and a plural and self-limiting public culture’, and, on the other hand, developing countries that ‘are com-posed of ethnic, religious and racial groups with little experience of working together and a long legacy of mistrust, ignorance, misunderstanding and hostility’ and where ‘[e]xtralegal mechanisms on which the developed soci-eties rely are not yet strong enough to cope with the consequences of hate speech’ (Parekh 2005–2006: 223). In the latter case, ‘law [is] the only reli-able means of introducing a measure of civility and buying time until the society acquires reasonable cohesion and stability’ (ibid.). ¹⁶ Unfortunately, Parekh does not specify here what he means by ‘law’, but it seems as though he is equating law with criminal law, including group defamation law ( sensu stricto ) and law banning incitement to hatred, viewed only as a last resort.

For all of these reasons, it seems appropriate to read Parekh as accepting, other things remaining equal, the need not for criminal law but for other

measures, such as media laws and regulations, to limit the use of nega-tive stereotyping or stigmatization of cultural communities. However, this reading creates its own potential banana skin for Parekh. For, it is hard to square his assertion that negative stereotyping and stigmatization is objec-tionable because it has exacerbated the anger felt by ‘[a] small but deeply alienated group of young Muslims’ (Parekh 2009: 77) with his own portray-als of this particular subgroup of Muslims. He describes them as ‘boys and young men’, ‘rioters’, as showing ‘active disloyalty to their country of settle-ment’, ‘among the poorest’, who ‘underachieve educationally’, have ‘limited emotional intimacy’ with their parents, ‘loud, rigid, and uncompromising in their religiosity’, for whom ‘Islam is the sole basis of their personal and public identity’, ‘a sulking Muslim underclass’, ‘available for mobilization by militant groups’, and ‘a legitimate source of concern’ (60, 77–79). If negatively stereotyping and stigmatizing entire groups of individuals based on their religious beliefs, gender, age, and various other ascribed character-istics counts as hate speech, then Parekh’s own words are hate speech or dangerously close to it.