Limits on Free Speech in Pursuit of Liberal Toleration

Many toleration theorists believe that toleration lies at the heart of a “good society” in a world marked by diversity and multiple religions of faith. And its scope is to be decided by looking at the fundamental ideas of the good that underlie the liberal principles of freedom and liberty. As a principle, it appeals to the liberal tradition for recognition of various groups and minority, and the paper here discusses the implications of such a tolerant society with liberal ideals of freedom of expression even to the extent of hate speech, in particular. In matters of tolerating such hate speech, as liberal as it may seem, but the implications of such a wide principle of toleration weakens the foundational liberal pillars upon which the principle of toleration thus thrives. I will begin with a brief account of hate speech and the advocates of it on grounds of free expression as a core liberal value, post which I will present the arguments to expose how their stand does not hold true of the liberal values and finally face the most apparent and common objections towards such a provocative stand of prohibiting such speech while still in the interest and pursuit of Liberal Toleration.

Hate Speech as commonly understood contains in it the feeling and emotion of hate and even if the function of it may just be expressive, the negative emotion aims to denigrate those at whom it is targeted. The particular act of Hate Speech in isolation by itself may not be intolerable but it is surely an instrument for intolerance. Many people question if it can be persecutory and preventative, both in its intent and effect, and since there is much evidence to support just the former persecutory intent, there has been hesitance to out rightly prohibit such speech. But slowly such messages become part of the permanent visible fabric of the society and it compromises the dignity of people. This limits their capacity for social exchange, interaction and functioning in the society, if not directly, but, indirectly. It is not the case where you merely dislike or disapprove of one’s words or actions and it is insufficient to count for intolerance. For instance, one may profoundly criticize one’s religious faith until that criticism leads to an action in terms of causing someone suffering or inaction in terms of preventing one from going about their normal lives as independent agents of a pluralistic society. The said criticism becomes valid to be represented as persecution when the intention is to cause pain and suffering to the targeted people. When someone voices their criticism with the intent of causing pain and harm, and the effect of their voice does lead to the said suffering, it is plausible to hold it intolerable.

Such expression of hatred becomes a threat to the character and viability of a tolerant society. It conveys a terrible defamation and threatens public order. For isn’t a tolerant society one where people live with each other in a civil and respectable manner despite their differences? And toleration imposes duties on everyone be it the ordinary members of society as well and they must refrain from acts of violence against people who do not share their faith or worship. That’s the core of toleration. And refraining from violence which turns out to be the consequence of hate speech is a significant aspect of this toleration. Public exacerbation is a type of an intolerant society while in a tolerant one people have a specific obligation to refrain from using words to harm people you disagree with.

To come to those who refrain from prohibiting hate speech even though ideologically they may despise such acts is an apt phrase that sums up their state, 'I hate what you say but I will defend to the death your right to say it.' The right here is the freedom of expression. But what of the basic right of the people whose work and life turns to shambles because of the so-called right of free expression of dissenters or those who disagree? Why is one person's right to free expression superior to the right to live and move freely in a society of few others? Shouldn’t each group in a society accept that the society is not just for them; but rather it is for them too along with all the others.

Those who defend hate speech on such grounds have a few arguments for its justification like the existence of such cases “makes the rest of the people aware of the depth and intensity of terrible beliefs and strengthens the people’s resolve to deal and combat such negative racist beliefs” [2]. This appeals to the negative character of people’s intelligence. Do we have to allow for the practices to exist just for the awareness of them by others around? This questions the morality and intelligent capacity of moral agents to distinguish what is right from wrong. Such an argument only brings out the necessity of awareness of the terribleness of such acts but doesn’t still justify their presence. And if the awareness is to be able to resolve them, why shouldn’t we limit and restrain such acts before when we know of their terrible nature. Some others like Dworkin think that restricting hate speech will have a negative effect on the legitimacy of other laws that a society may want to enforce. The fear, in this case, is that by denying people the right to oppose the laws, the value of these laws like anti-discriminatory laws will be undermined to a huge extent. [G7] [G8] But in cases of hate speech, it isn’t a matter of people opposing laws, but targeting few minorities or religious groups within a society in attempts to make them a social pariah.

Argument of Liberal Archipelago and the right to exit

If we extend and widen the principle of toleration then there can be disagreement towards certain norms or beliefs, and if that disagreement becomes dissent then each person has the right to exit from such a society or place. We can be tolerant of things and systems we disapprove of on the basis that if it is something intolerable, then we can choose to leave. This has been advocated by Chandran Kukathas in his book ‘Liberal Archipelago’ as well. It follows from this then, that foundationally Hate Speech has no grounds to be existing in the first place. When people have an issue with a section or group of the society, rather than taking their hatred to a public forum, they can exit where they feel they cannot live together with people whose belief systems are so fundamentally different from their own. For they need to understand and realize that the society is not just for them, but it is for others including them as well.

Hate speech takes a public stand in the form of demonstrations and protests demanding the forceful exclusion of a specific group of people. Whatever may be the cause of their hatred, but the intention and aim are for the targeted people to be unable to live and work peacefully until they leave.[G10] [G11] Even if the cause of their hate maybe just to an extent owing to the wrongful act committed by the one member of the targeted group but it still doesn't justify taking their hatred to a level of public condemnation subjecting other innocent members of the group too. It seems to take the form of retribution for certain crimes that too from innocent victims, while that should be the role of legislators and judiciary. [G12]

Argument of wrongful intention (from intentionality for violence and force)

Almost all cases of hate speech don’t just voice disagreement but call for action in terms of violence that will make people fear for their lives and run away. So strong is the hate and the will to spread fear that people who indulge in such speeches don't even back down from the complete wipeout from the society of the people who they are targeting. This attacks the people’s basic right to life and security. Are such extreme cases of religious vituperation the cost to be borne for letting people oppose and disagree? It seems implausible, that we should bear heavy consequences for the right to free expression when there can be disagreement and opposition in a respectable manner that doesn’t become a tool for public violence.

An indirect corollary of this is also, when a particular religious group or section is attacked, the suffering is borne by their generations to come in the form of minimal job avenues, work-place harassment and denial of property and housing acquisitions which are the basic common rights of the other people in the society. People are and should be free to express themselves and their opinions so long as it does not disable others from doing so as well. Publicized hate speeches do not fit this test of not disabling others from doing the same and hence should, in fact, be prohibited. [G13] [G14] Hate Speech is wrongly understood as a case for freedom of expression but is rather a tool for prohibiting others for their freedom to life and work.

Now, there will be some common criticism and objections that we may expose ourselves to by taking such a stand. One of them being, if the principle of toleration is wide enough then why not tolerate and accept Hate Speech however much we may despise it. To uphold the principal and ideal of toleration why not tolerate the intolerable as well? In response to this, as mentioned before, the act of Hate Speech is not necessarily intolerable but the intent of it which seems to be inconsistent with toleration and values of liberty and freedom. When the intent is to wish such harm for people so as to make their lives a living hell, that is what must not be tolerated, and it also clashes with the principle of toleration.

Another objection may be that even though we may prohibit Hate Speech, it cannot wipe out the hate that the people actually feel. It will just be a futile attempt at curbing their emotions of hate which may then come out in other silent, yet denigrating ways as well. It’s true that the restrictions on hate speech may not have any effect on the feelings and emotions of the people who indulge in it. Nevertheless, we cannot allow for acts that publicly shame people and make them lose their respect. It may curb their strong feelings of hatred now, but over time with such restrictions, they will learn to express their feelings in a respectable fashion.

I have proposed here a conception of Hate Speech that is fundamentally at odds with a tolerant society, both in its content and intent. It is because of this very reason that such cases of hate speech should be restricted and prohibited so that everybody gets a clear message that such acts will not be tolerated in a free and just society. The argument for liberal archipelago highlights the individual’s right to exit in context of disagreement that can breed hatred. To promote the values of a free and liberal society, those who disagree may do so in a formal, acceptable manner and if it is beyond that they may wish to leave themselves, but they cannot publicly shame or expect others to leave to satisfy their own hatred for them. And the argument of wrongful intention describes the aim of hate speech and how it incites wrongful action and violence. And finally, I deal with the objections that such a theory may open itself up to. Things and acts which are inherently aimed to spread violence and hatred cannot be let to survive under the mask of free expression as it limits others right to the same expression and thus cannot be the mark of a tolerant society.