Principles of Civic Morality - Constrain Uses of Hate Speech

Constrain Uses of Hate Speech

5 Principles of Civic Morality

liberty.’ ² In his 2009 Tanner Lectures, ‘Dignity, Rank, and Rights’, however, Waldron claims that this Kantian definition of dignity (as the fundamental worth of every human being) ‘has had a deplorable influence on philosophi-cal discussions of dignity and it has led many lawyers, many of whom are slovenly anyway in these matters, lazily to assume that “dignity” in the law must convey this specific Kantian resonance’ (Waldron 2011: 221). Instead, Waldron insists that the sort of dignity that matters in the law, especially in the law dealing with reputation-damaging speech, is intimately connected with social rank or status, something which is an essential feature of the ancient concept of dignity or dignitas (225). As described by Marcus Cicero in the context of the Roman Republic, for example, ‘ dignitas est alicuius honesta et cultu et honore et verecundia digna auctoritas ’ (‘rank is the pos-session of a distinguished office which merits respect, honour, and rever-ence’) (Cicero [c. 84 bc] 1949: 333).

However, Waldron also argues that there is a key difference between the ancient use of the concept of dignity—with its emphasis on a person’s role ( personae ) in the republic and on a hierarchy of social ranks or statuses—

and the modern use of this concept. ‘[T]he modern notion of human dignity involves an upwards equalization of rank, so that we now try to accord to every human being something of the dignity, rank, and expectation of respect that was formerly accorded to nobility’ (Waldron 2011: 229). As evidence of this upward equalization of rank, he cites the fact the modern concepts of human dignity and human rights entail the sort of protection of the right to bodily integrity, the right to privacy, and the prohibition of humiliating or degrading treatment of prisoners that was once granted only to the nobility (230–231).

If the modern notion of dignity formally means a high and equal rank or status, what is the currency of this status or what forms does it take? At this stage, Waldron appeals to the idea of ‘social and legal status’ (Waldron 2010: 1612). When he speaks of ‘social status’, he has in mind such things as the esteem in which one is held by one’s fellow citizens and the various signs of respect received from them. In the case of ‘legal status’, he is referring to what it means to be a full rights-bearing member of society and to partake of the fundamental benefits and privileges of a system of law. As he puts it, ‘[i]f our modern conception of human dignity retains any scintilla of its ancient and historical connection with rank—and I think it does: I think it expresses the idea of the high and equal rank of every human person—then we should look first at the bodies of law that relate status to rank (and to right and privilege) and see what if anything is retained of these ancient and historical conceptions when dignity is put to work in a new and egalitarian environment’ (2011: 210). ³ Putting these two aspects together, Waldron is centrally concerned with the ways in which enjoying a high and equal socio-legal status furnishes citizens with a package of fundamental rights.

For Waldron, included among this package of fundamental rights is the right to protection against group libel (catchall). Consider the following passages.

[I]t helps to view hate speech laws as protecting vulnerable minorities against the evil of group defamation . These days we tend to think of defamation as a tort. But [. . .] historically the law of criminal libel has been used to support and express a collective commitment on the part of society to uphold the fundamentals of people’s reputations as members of society in good standing—vindicating, as I shall say, the rudiments of their civic dignity as a necessary ingredient of public order.

(2010: 1600)

The United States abolished titles of nobility in 1787, but it did not nec-essarily abolish that sort of concern for status. A democratic republic might equally be concerned with upholding and vindicating important aspects of legal and social status—only now it would be the elementary dignity of even its non-officials as citizens—and with protecting that status (as a matter of public order) from being undermined by various forms of obloquy. And that is what I think is the concern of laws regard-ing group defamation. (2010: 105)

In countries where hate speech and group libel are prohibited, people are required to refrain from the most egregious public attacks on one another’s basic social standing. A great many countries use their laws to protect ethnic and racial groups from threatening, abusive, or insulting publications calculated to bring them into public contempt. (2011: 234) These passages indicate Waldron’s implicit commitment to what I shall call the Principle of Civic Dignity, that legalistic constraints on uses of hate speech are (N-)warranted if they protect the rudiments of people’s civic dignity.

At the heart of Waldron’s argument is the claim that certain uses of hate speech are a threat to the esteem in which targeted groups are held by fellow citizens and the system of law. In itself, this is not a new claim, of course.

In the 1980s and 1990s critical race theorists such as Matsuda pointed to evidence showing that racist negative stereotyping and stigmatization (or

‘racist hate propaganda’) affects how a society views members of racial/

ethnic minorities, for the worse (e.g., Matsuda 1989b: 2339–2340; cf.

Gardner and Taylor 1968; Greenberg and Pyszczynski 1985). Research into this phenomenon has continued apace in the intervening years, and now also includes research on the impact of negative stereotyping and stigmati-zation on the grounds of gender, religion, and sexual orientation, to name only a few characteristics (e.g., MacRae et al. 1996; Schneider 2004).

So what is original in Waldron’s work? The answer, I think, rests in his accounts of protection and assurance of civic dignity. I shall return to assur-ance in the next section, but for now I shall focus on protection. When Wal-dron claims that it is helpful to think of hate speech law as protecting the high and equal sociolegal status of members of vulnerable groups, he means something that runs deeper than the brute fact that in a society where such law is effectively enforced, victims can expect the criminal justice system to

punish people who engage in group libel (catchall) against them. He also means, I think, that laws/regulations/codes that constrain uses of hate speech are at their best when they focus on forms of expression that deny possession by members of targeted groups of qualities or attributes that are prerequi-sites for their enjoying a high and equal social status or which deny their possession of legal rights that are the trappings of a high and equal legal status. This interpretation is supported by Waldron’s three concrete illustra-tions of ‘the ways in which a group might be libeled’ (Waldron 2010: 1609).

First, ‘the Beauharnais pamphlet, with its imputation that “rapes, robberies, knives, guns and marijuana” were somehow typical of “the negro”’ (ibid.).

Second, ‘the characterization of minority members as animals’ (ibid.). Third,

‘a group and its members can be libeled by signage associating group mem-bership with prohibition or exclusion: “No blacks allowed”’ (1610). ⁴ The first two examples do not involve false statements of fact and so do not amount to group libel ( sensu stricto ). Instead, they seem to be a matter of negative stereotyping or stigmatization, and so constitute group libel in the catchall sense of covering a range of types of hate speech. At first glance, the third example looks like the enactment of discrimination (e.g., Asquith 2009; McGowan 2009, 2012). But perhaps Waldron regards this speech as group libel (catchall) because the signage asserts or implies that “blacks”

lack some of the basic constitutional rights granted to other persons (i.e., the right not to be discriminated against). This is negative stereotyping and may even be group libel ( sensu stricto ). At any rate, what really matters is what all of these examples share in common, and that is a denial of the fact that members of certain groups possess qualities or attributes necessary for a high and equal social status or a denial of the fact that these people possess rights that suggest a high and equal legal status. And so part of the function of what Waldron calls ‘hate speech regulation’ is to protect vulnerable minori-ties against such group libel (catchall) (Waldron 2010: 1600, 1612, 1628).

In his words, ‘[t]he issue is publication and the harm done to individuals and groups through the disfiguring of our social environment by visible, public, and semi-permanent announcements to the effect that in the opinion of one group in the community, members of another group are not worthy of equal citizenship’ (1601). ⁵

Certainly Waldron’s way of thinking is plausibly applied to some Euro-pean hate speech law. Consider laws/regulations/codes that disallow the public expression of hatred against protected groups, such as Ch. 16, s. 8 of the Swedish Criminal Code (‘A person who, in a disseminated statement or communication, threatens or expresses contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin or religious belief shall, be sentenced for agitation against a national or ethnic group to imprisonment for at most two years or, if the crime is petty, to a fine’ [trans.]). It is not difficult to see how this law could do much to protect the rudiments of the civic dignity of members of protected groups.

Indeed, in Vejdeland and Others v. Sweden the ECtHR upheld the decision of the Swedish Supreme Court to sustain convictions for agitation against

a national or ethnic group in the case of a group of defendants who had circulated leaflets containing powerful expressions of homophobic beliefs, in a secondary school. The leaflets included the statements that homosexu-ality was a ‘deviant sexual proclivity,’ had ‘a morally destructive effect on the substance of society,’ was responsible for the ‘modern plague’ of HIV and AIDS, and was associated with those lobbying for the legalization of pedophilia. The Court declared that in its view ‘the interference served a legitimate aim, namely “the protection of the reputation and rights of oth-ers”, within the meaning of Article 10 § 2 of the Convention.’ ⁶ This would seem to be an example of restricting statements that deny that members of protected groups possess qualities or attributes necessary for a high and equal sociolegal status.

However, I believe that Waldron can be fairly criticized for overlooking other kinds of law that might also be said to protect the high and equal sociolegal status of members of vulnerable groups. I offer two illustrations.

The first is Holocaust denial law. It is not difficult to see how such law could protect the civic dignity of Jews—over and above protecting the dig-nitary rights of the dead (see Ch. 3 [3.6]). Consider the most famous Holo-caust denial case of all, Case of National Democratic Party of Germany (or ‘ Auschwitz Lie ’) (1994). ⁷ Here the Constitutional Court of Germany upheld a prior restraint on the National Democratic Party of Germany in relation to a public event it was planning to hold that included a lecture by David Irving. The Party was required to ensure that nothing would be said about the persecution of the Jews during the Third Reich that would deny or call into question that persecution and in contravention of ss. 130, 185, 189 and 194 of the German Criminal Code. In doing so the Court quoted with approval an earlier opinion of the Federal Court of Justice of Germany (1979) ⁸ in which the latter had stated the following.

Whoever seeks to deny these events denies vis-à-vis each individual the personal worth of [Jewish persons]. For the person concerned, this is continuing discrimination against the group to which he belongs and, as part of the group, against him. [trans.] (cited in Kommers 1997: 386) Surely part of what the Court is getting at here is precisely what Waldron seems to be concerned with in the case of the “No blacks allowed” sig-nage: namely, a denial of the fact that certain groups or classes of persons possess legal rights that are the trappings of a high and equal legal status.

Put in Waldronian terms, Holocaust denial is a threat to the rudiments of each Jewish person’s civic dignity. Interestingly, Waldron explicitly mentions the fact that statements claiming that the Holocaust is a hoax invented by Jewish people for nefarious purposes can be damaging to the ‘social and cultural reputation’ of Jews (Waldron 2012: 57–58). Yet he chooses to make this point not as a part of an additional justification for Holocaust denial law but as part of his discussion of R. v. Keegstra , a case involving

s. 319(2) of the Canadian Criminal Code, which makes it a punishable offense to willfully promote hatred against an identifiable group of per-sons. Interestingly, Waldron introduces his approach with the following declaration. ‘Mostly, what I want to do is offer a characterization of the laws we find in Europe and in the other advanced democracies of the world, and also as we have found them in America from time to time’

(2010: 1598). So it is unclear why he has not sought to defend Holocaust denial law as well .

Perhaps Waldron would say that when he uses the term ‘hate speech regu-lations’, he also has in mind Holocaust denial law (cf. Waldron 2008). But there is a second dimension to the present criticism that cannot be so eas-ily accommodated. In contrast to critical race theorists, Waldron focuses on criminal law and consciously places civil libel law outside of the frame of the argument. He claims that whereas civil defamation law is concerned with

‘the intricate detail of each person’s reputation and its movement up or down the scale of social estimation’ (Waldron 2010: 1607), criminal defamation law is ‘oriented to protecting the basic social standing [ . . . ] of members of vulnerable groups’ (1646). He also uses Beauharnais v. Illinois (1952) ⁹ to illustrate the distinction. In his dissenting opinion in that case Justice Black rejected the majority’s analogizing s. 224a of the Illinois Criminal Code with criminal libel law on the grounds that the latter ‘has provided for punish-ment of false, malicious, scurrilous charges against individuals, not against huge groups.’ ¹⁰ According to Waldron, Justice Black ‘neglects an important difference between the concern for personalized reputation in civil cases and a broader social concern for the fundamentals of anyone’s reputation or civic dignity as a member of society in good standing’ (Waldron 2010: 1607). ¹¹ However, the sorts of civil proceedings that might be used to protect vul-nerable groups against attacks on their civic dignity are not limited to the tort of libel. There is also the tort of intentional infliction of emotional dis-tress, and Delgado’s proposed tort for racial insult. Waldron acknowledges that a strong argument can be made for other regulatory approaches to hate speech, but he assumes that the relevant justificatory project is different from his civic dignity rationale (1614). But this assumption is premature, and for the simple reason that when critical race theorists have sought to justify such law, they too have sometimes made an explicit appeal to the way in which racist insults threaten people’s sociolegal status. In the words of Delgado,

‘[t]he wrong of this dignitary affront consists of the expression of a judgment that the victim of the racial slur is entitled to less than that to which all other citizens are entitled’ (Delgado 1982: 144). Indeed, in his review of Waldron’s The Harm in Hate Speech (2012) Delgado argues that although ‘nothing is wrong with focusing, as Waldron does, on monuments, writings, and other tangible symbols of hatred and contempt’, ‘face-to-face vituperation can pol-lute the environment in ways almost as damaging as billboards and monu-ments’ (Delgado 2013: 233). All of this suggests that Waldron is too hasty in de-emphasizing the role of civil proceedings in protecting the civic dignity of

vulnerable groups, especially given the fact that these proceedings have also been found in America from time to time, as several critical race theorists have pointed out (see Ch. 3 [3.1]).

5.2 ASSURANCE

A second claim to originality in Waldron’s approach rests in his account of assurance. Waldron insists that hate speech law functions not merely to pro-tect vulnerable minorities against group libel (catchall) and the concomitant public denials of their civic dignity, but also to provide an important public good : namely, the ‘assurance’ of civic dignity. As Waldron puts it, assurance is ‘a pervasive, diffuse, ubiquitous, general, sustained, and reliable under-pinning of people’s basic dignity and social standing, provided by all for all’

(Waldron 2010: 1630). The use of the word ‘underpinning’ is significant for two reasons. First, the word ‘underpinning’ indicates that the public good of assurance is a process or something we do . And so I read Waldron as using the word ‘assurance’ to mean the act of assuring . Second, Waldron argues that law has an important part to play in this process of underpin-ning (1623). What he means is that, although assurance is the responsibility of all citizens and this means that all citizens have a responsibility to refrain from doing anything to undermine the action of assuring, including the responsibility to refrain from engaging in group libel (catchall), law plays in important role in the collective action problem of ensuring that everyone does their fair share in contributing to the provision of this public good. In other words, hate speech law serves to enforce the responsibility to refrain from engaging in group libel (catchall) (1630). This line of argument might seem to support what I shall call the Principle of Assurance, that legalistic constraints on uses of hate speech are (N-)warranted if they provide the public good of assurance.

I take it that when Waldron describes assurance as a public good he does not mean to suggest that it is something that cannot be excluded from certain vulnerable groups once it has been afforded to other groups. After all, there are plenty of hate speech regulations, such as those found in Russia, that pro-vide protection to some groups (e.g., race, ethnicity, religion, nationality) but not to others (e.g., sexual orientation, gender, physical disability). Instead, he means to say that once it has been provided to some individual members of a protected group, it cannot be excluded from other members. Even so, what is the object of this action of assuring? What is it that beneficiaries of hate speech law are being assured of? Waldron says various things about this, ranging from the more abstract to the more concrete. First, beneficiaries of hate speech law are being assured that they are worthy of a high and equal sociolegal status; that they are members of society in good standing (Waldron 2010: 1601, 1605, 1626–1627). Second, they are being assured that because they are members of society in good standing, they enjoy fundamental rights;

that their high and equal sociolegal status will translate into entitlements to just treatment (1613, 1626–1627). Third, they are being assured that their fundamental rights include the right not to be subjected to group libel (catchall) (1599, 1627–1628). Waldron gives no guidance on the sequencing of these assurances. Is hate speech law supposed to give all three forms of

Im Dokument Hate Speech Law (Seite 159-177)