Hate Speech Laws: Expressive Power is Not the Answer

Legal Theory 25 (4):272-296 (2019)
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Abstract

According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed.

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Maxime C. Lepoutre
University of Reading

Citations of this work

Law as Counterspeech.Anjalee de Silva & Robert Mark Simpson - 2023 - Ethical Theory and Moral Practice 26 (4):493-510.
The eradication of hate speech on social media: a systematic review.Javier Gracia-Calandín & Leonardo Suárez-Montoya - 2023 - Journal of Information, Communication and Ethics in Society 21 (4):406-421. Translated by Jeremy Roe.
A Republican Conception of Counterspeech.Suzanne Whitten - 2023 - Ethical Theory and Moral Practice 26 (4):555-575.

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References found in this work

Speech acts and unspeakable acts.Rae Langton - 1993 - Philosophy and Public Affairs 22 (4):293-330.
The Expressive Function of Punishment.Joel Feinberg - 1965 - The Monist 49 (3):397-423.
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Punishment, Communication, and Community.R. A. Duff - 2003 - Philosophical Quarterly 53 (211):310-313.
The autonomy defense of free speech.Susan Brison - 1998 - Ethics 108 (2):312-339.

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