Hate speech bans, democracy and political legitimacy

Topic: Hate speech bans, democracy and political legitimacy

Presenter: Prof James Weinstein - Amelia Lewis Professor of Constitutional Law and Associate Fellow, Centre for Public Law, University of Cambridge

Laws prohibiting discrimination on the basis of characteristics such as race, ethnicity, religion, sex, or sexual orientation are an essential means by which modern liberal democracies promote equality and protect human dignity. Consistent with these laudable goals, most liberal democracies, with the notable exception of the United States, also prohibit hate speech, including expression that demeans people based on characteristics protected by antidiscrimination laws. Ironically, however, hate speech restrictions can undermine the legitimacy of antidiscrimination laws, both in terms of their popular acceptance but even more crucially with respect to the morality of enforcement. For instance, laws forbidding people from expressing the view, as is the case in several European jurisdictions, that homosexuality is immoral or disordered, can destroy the moral justification for enforcing laws against sexual-orientation discrimination against religious dissenters. Conversely, the ability of Americans to freely oppose antidiscrimination laws by publicly expressing bigoted ideas about groups protected by these laws strengthens the legitimacy of enforcing these provisions even when doing so infringes upon deeply-held religious convictions. In explicating this untoward effect of hate speech laws on the legitimacy of antidiscrimination measures, the article explores more generally the relationship between free speech and political legitimacy, thereby explaining and supporting the American free speech doctrine's exceptional antipathy to viewpoint-discriminatory laws of any variety. 

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