Liberal Democracy and the Limits of Tolerance: Essays in Honor and Memory of Yitzhak Rabin

Should Hate Speech Be Free Speech? John Stuart Mill and the Limits of Tolerance

Should Hate Speech Be Free Speech? John Stuart Mill and the Limits of Tolerance L. W Sumner Hate literature is a hard case for liberals, since it exposes a conflict between the two values-liberty and equality-that are most central to their political morality. Though liberals are committed to a wide-ranging freedom of political expression, it is particularly difficult for them to defend anyone's right to threaten the very ideals of tolerance and mutual respect that are for them the cornerstones of a free and civil society. The response to this dilemma on the part of most contemporary liberal theorists has been to come down, however reluctantly, on the side of free expression, thereby opposing any form of legal restriction on, or regulation of, hate literature. This civil libertarian orthodoxy has been especially strong in the United States, which remains the sole jurisdiction to offer near absolute legal protection to racist speech. I do not intend here to challenge this orthodoxy directly, though I have questioned it elsewhere.I Instead, I want to explore a different perspective on the issue by turning the clock back from contemporary to classicalliberal theory. The differences between the two genres lie primarily in the fact that classical liberals were less reluctant than their modern counterparts to ground their political theory in (what Rawls has come to call) a "comprehensive moral theory" and were therefore more willing to endorse one particular conception of the good life. As the advocate of both a utilitarian moral theory and a "theory of life" that assigned a high value to individuality and self-development, J. S. Mill is the paradigmatic classical theorist in both respects. The question I intend to ask, therefore, is how the issue of legal restraints on hate literature would (or should) have been treated within the version ofliberalism he defended. Since Mill's liberalism remains of interest to this day for more than merely historical reasons, there is some reason to think that its treatment of the problems raised by hate speech might be instructive. The question of how Mill's principles might apply to pornography in its current forms has recently been the subject of some debate among l33 134 Liberal Democracy and the Limits ofTolerance philosophers.2 Less attention has been given to the same issue concerning hate speech.3 This asymmetry may result from the conviction, or perhaps just the assumption, that the latter question admits of a much more obvious answer than the former. While it may be possible to make out some sort of case that Mill would, or should, favor censorship of pornography, the prospects of a similar case for hate speech seem slim. The reasons for thinking that Mill would extend legal protection to hate speech and literature are very strong, perhaps even overwhelming. These reasons include the following: I. Hate literature expresses opinions. Hate literature communicates derogatory views about target groups identified by such features as race, ethnicity, religion, gender, and sexual orientation. This is enough for Mill to locate it squarely within the domain of "the liberty of expressing and publishing opinions" (225).4 In this respect, hate literature is a much clearer case for protection than is pornography. While the latter has come to be included, in most legal jurisdictions, within the broad range of "expression" and thus has been sheltered under the umbrella offreedom of expression, it is at least doubtful whether most pornography expresses opinions of any sort. However, as Richard Vernon has pointed out,5 what Mill has in mind by "expression" is strictly the expression of opinions. Indeed, he rarely uses the term expression at all, more frequently referring to speaking, writing, or discussion.6 2. The opinions expressed in hate literature are political. Hate literature typically addresses genuine social or political issues: immigration policies, the civil status of visible minorities, the desirability of an ethnoculturally homogeneous (usually white Christian) society, and so on. The kinds of opinions whose circulation Mill was particularly anxious to protect were those concerning "morals, religion, politics, social relations and the business of life" (244--45). He therefore clearly regarded political speech, of which hate literature is one particular example, as lying in the heartland of the protected domain of liberty. 3. Mill's liberties are absolute. Mill's aim in On Liberty is to define "a limit to the legitimate interference of collective opinion with individual independence" (220). He regards the principle of liberty he defends "as entitled to govern absolutely the...