(There is no question that India’s “hate speech” laws – S. 153A and 295A IPC, S. 66 IT Act et al. – are problematic. Recall, however, that hate speech legislation as such is a staple feature of constitutional liberal democracies. Indeed, in prohibiting all regulation of hate speech, the United States is an outlier; hate speech laws, of some sort, are envisioned in the ICCPR and the ECHR, and provided for in the laws of South Africa, Canada, England, Australia and other western European nations. The problem in India, therefore, is not the existence of hate speech laws per se, but their infelicitously broad wording (sometimes, but by no means always, a colonial legacy), and their rampant abuse. Two things follow: first, even if – through legislation or through the Courts – S. 295A and the rest are repealed or struck down, they will almost certainly be replaced with something else. And secondly, until that time, it becomes even more important to carve out a legal/judicial hate speech doctrine that comports with the legislation on the statute books, and is consistent with basic liberal principles. One way of doing that is by engaging with the work of prominent liberal defenders of hate speech laws, and perhaps amongst the most famous of them writing today is Jeremy Waldron, who published his book, The Harm in Hate Speech, in 2012).
Jeremy Waldron’s The Harm in Hate Speech is a liberal defence of hate speech laws. It asks whether it is morally consistent for a polity based upon principles of political liberalism – that is, committed to upholding individual autonomy, personal freedoms and according equal respect and concern to all – to place restrictions upon the speech of its citizens. Waldron answers that it is.
According to him, there are two related values that hate speech damages. The first is the public good of inclusiveness. In modern pluralist democracies, there is a diversity of ethnicities, races, religions and ways of life. The public good of inclusiveness entails a general assurance each person, qua person and qua member of any particular group, can lead a regular life in the polity without facing “hostility, violence, discrimination or exclusion by others.” In essence, it is a “sense of security in the space that we all inhabit” – and naturally, by that reason, it is something we all work towards building and sustaining through our daily conduct.
The second value is that of dignity. Waldron defines dignity as the confirmation of equal membership in a society, or one’s “basic social standing… as a proper object of society’s protection and concern” (or, in Dworkin’s language, democratic legitimacy springs from the community according “equal respect and concern to each of its members).
In order to grasp how precisely hate speech harms these values, Waldron asks to understand it as a form of group defamation. In the American case of Beauharnais v. Illinois, for instance, it was prohibited to portray the “depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion.” The defendant’s criminal conviction for distributing pamphlets calling upon white people to resist the “encroachments of… the Negro” was upheld by the United States Supreme Court on the ground that libel deserved no free speech protection. Waldon argues that this, precisely, is the best conceptual frame for understanding the issue.
At the heart of Waldron’s arguments is his vision of “public order” in a liberal society: a state of affairs in which each person’s social status, as a citizen of equal moral worth and the possessor of inalienable dignity – is protected. The point of group defamation laws, then (drawing an analogy to individual defamation laws) is to “uphold against attack a shared sense of the basic elements of each person’s status, dignity, and reputation as a citizen or member of society in good standing – particularly against attacks predicated upon the characteristics of some particular social group.”
It is hardly surprising, then, that Waldron draws much of this theoretical ammunition from feminist arguments against pornography, in particular, the work of Catherine MacKinnon. Like MacKinnon, Waldron believes that speech is, in some sense, constitutive of social reality. Words don’t merely express states of affairs, they do things. In particular, he argues, it is the permanence of certain forms of expression – the written word, in particular – whose “apparently ineradicable presence makes a massive difference to the environment in which [we] live our lives.” In an environment rife with hate speech, therefore, the message that is conveyed to its targets – the message of exclusion and insult – becomes part of the very look of that society, and thus breaks down the assurance of inclusiveness that Waldron considers to be a basic public good.
Having established, then, that hate speech violates individual dignity, the problem of the slippery slope looms large – how do you cut off “dignity” from all the other ways in which free speech might affect people? Waldron’s answer is to draw a sharp distinction between “dignity” and “offence”. Being offended refers to subjective feelings of hurt, shock or anger, whereas a person’s dignity depends upon their objective standing vis-a-vis society. There is thus a conceptual difference between protecting someone from a certain kind of “effect on their feelings” (impermissible), and protecting “the assurance of their decent treatment in society” (permissible and warranted). In the context of religion, for instance – and this is something reflected in the religious hate speech codes of liberal democracies – the distinction is between attacking a system or a set of beliefs (e.g., questioning or ridiculing Christ’s resurrection), and attacking the civic status of a religious group qua religious group (“all Christians are scum”).
In essence, then, hate speech codes are about protecting an environment in which the equal citizenship of all individuals – and especially those belonging to unpopular minority groups – is respected, or at least, preserved. It is an intuitively powerful argument, narrowly tailored, and seems justified by the history of communal, ethnic and race-based strife throughout the last two hundred years, much of which has been stoked by incendiary expression (see, for instance, Prosecutor v. Nahimana, on the incitement to genocide in Rwanda).
It is in addressing counter-arguments, however, that some of the possible weaknesses in Waldron’s architecture are revealed. He responds to Edwin Baker’s argument from autonomy by performing a simple balancing task – balancing the autonomy concerns of stifling a racist’s self-expression with the harms described above. He fails to acknowledge, however, that the autonomy claims in this case are not just of the speaker, but also of the listeners. As Scanlon has argued, for instance, our fundamental intuitions of individual responsibility hold persons accountable for their actions, unless coerced. Consequently, what causes the dignity and inclusiveness harms – in the sense of moral and legal responsibility – is not hate speech, but all the individuals who listen to it and – as autonomous persons – allow themselves to be convinced by it.
Equally, it is no answer for Waldron to reply to Dworkin’s argument that the legitimacy of non-discrimination laws depends upon letting racists (for instance) have the full opportunity of rebutting them, by pointing out that racists can object to anti-discrimination laws through non-racist speech. Dworkin’s legitimacy argument, indeed, has a simpler response, and one that has repeatedly been made by feminists in the context of pornography: if the whole point of pornography and hate speech is to systematically distort the free speech of certain participants (women, minorities), then obviously, legislation that emerges out of such a distorted public sphere itself can lay no claim to legitimacy. The argument can then be turned against Dworkin by contending that free speech codes remedy the expressive inequalities created by hate speech (as one element in a system of structural inequality and hierarchy), and thus bolster the legitimacy of laws that arise out of a more equal and fair public sphere.
Somewhat unsatisfactory, as well, is Waldron’s response to Mill’s argument, that the truth needs constant opposition if it is to survive in a living and vibrant manner, as opposed to sinking into runic, doctrinaire formalism. Waldron responds by arguing that, whereas at some point the “race question” was a point of contestation in the framing of social policy, when racist arguments were a part of public discourse, “it would be fatuous to suggest that it is the importance of our continuing engagement in a debate of this kind that requires us to endure the ugly invective of racial defamation in the marketplace of ideas. In fact, the fundamental debate about race is over – won, finished“. I find this argument problematic because it accords to government the power to decide what debates are finished and what debates are live, what argument is on the wall and what argument is off the wall – and that is an extremely dangerous proposition. As the American Smith Act trials show – indeed, as Arthur Miller’s Crucible shows more eloquently than anything else – it is in the interest of momentary majorities to declare as many debates possible as finished, and then write their convictions into law.
Lastly, Waldron responds to Robert Post’s argument that the very meaning of democracy entails that “even the most cherished norms of our community to be challenged democratically in a contest in which it is possible that they might be denigrated and even rejected.” Here again, Waldron’s reply that you can challenge laws (norms) against discrimination and hate speech without engaging in hate speech simply will not do – because one of the very norms under challenge is precisely the norm that objections to existing norms are not permitted to be expressed through hate speech (the specter of infinite regress loom here, but we can stop at this point). And the challenge to this norm, logically, can only be made through hate speech.
Despite these objections, Waldron’s account remains a powerful and important account of justifying hate speech codes within the rubric of political liberalism. In particular, his distinction between causing offence and undermining dignity is particularly crucial for India, because of our over-broad speech statutes. s. 295A IPC, for instance, criminalizes “insulting” the religion or religious beliefs of a particular class. One possible argument, I suggest, is to focus on the word “insulting”, that has been preferred to “offending”, and argue that it clearly signifies objective content. We can then argue, for instance, that “to insult” must necessarily mean to invoke those social conventions that have been historically used to subordinate, or deny the equal status of, particular groups (e.g., calling a community “dogs”) – and nothing less. This, then, provides a clear conceptual distinction, grounded in liberalism, that can allow us to distinguish, statutorily and constitutionally, mere “offence” (without the causing of which free speech can hardly exist), and attacks on equal citizenship and dignity, which there are strong reasons to protect.
It is also an elegant way of making sense of the Constitution. Naturally, S. 153A, 295A, 66A and the rest must be consistent with Article 19(2), if they are to remain constitutional. On this blog, we have argued before that the best interpretation of the “morality” restriction under Article 19(2) is to understand it neither as personal nor as public morality, but as constitutional morality – morality that is grounded in constitutional principles. One of the principles of the constitution – as evidenced from Articles 14, 15, 21 and 25 – is the principle of equal concern and respect. That is precisely what the Waldronian conception of hate speech laws seeks to protect. In this way, therefore, S. 295A et al – or some other avatar – would remain both constitutional and fundamentally liberal in their interpretation and application.