Damned If You Do, Damned If You Don’t

Hate speech and human rights violations.

Posted Mar 31, 2019

In The Harm in Hate Speech law professor Jeremy Waldron argues that hate speech isn’t just harming the public but also the individual members of the targeted group by violating their right to dignity. But the question is whether his notion of dignity can do all the work we want a notion of dignity to do.

Any suitable notion of dignity, it seems, should be able to account for the way exploitative battery, such as rape, torture or non-consensual medical experimentation, violates dignity. Yet it is not clear to me that Waldron’s concept of dignity is able to do so. He equates a person’s dignity with the social standing fellow citizens regard her as having. While this concept may be able to explain the harm in hate speech, it’s not suitable for explaining the dignity taken from victims of exploitative violence. Even if fellow citizens were to look down on the victims of violent crimes, the victim’s diminished social recognition cannot account for the way in which their dignity had been violated.

I acknowledge, of course, that exploitative battery also violates the victim’s right to autonomy, the right to be free from coercion and physical restraint. However, the heinous nature of exploitative battery cannot fully be accounted for by noting that the crime has infringed upon the victim’s right to autonomy. Certainly, it isn’t a rights violation of this kind that we refer to when we say of, say, a rape victim that she has been stripped of her dignity.

Part of the reason for the widespread support for enhanced penalties in cases of rape, torture and non-consensual medical experimentation is the callous for the victim’s bodily and psychological integrity. It’s also the right to the integrity of one’s own body and psychology we think should be protected when we speak of a person having a right to die with dignity.

Violating bodily integrity is not the same as causing physical damage or disruption to the body. In fact, like rape, torture and non-consensual medical experimentation need not cause any physical damage to the body. Rather, when we say that a person’s bodily integrity has been violated, we are referring to the fact that her body was used as a mere means to the perpetrator’s own end, whether that end is a scientific or religious goal or the perpetrator’s own gratification.

Exploiting a person’s psychological state as a mere means to one’s own end also vitiate the right to dignity. For example, a military person who tortures a prisoner of war by showing him emotionally distressing pictures with the aim of making him reveal sensitive information is exploiting his mental vulnerability as a mere means to an end, namely that of retrieving the sensitive information. For example, threatening hate speech exploits the target’s fear of consequences in the service of the hate speaker’s goal.

The proposed notion of dignity can accommodate the way both physical violence and defamatory speech vitiate the right to dignity. But when cashed out as suggested, defamatory hate speech doesn’t always violate dignity.

But defamation arguably invade privacy (like false-light invasions of privacy). This may seem odd, especially if the right to privacy is taken to be the right to be left alone. However, the right to privacy is probably to be understood more broadly as the right to control access to one's own property and information.

Other kinds of hate speech violate other basic rights. Threats, for example, violate the right to autonomy, which is the right to be free from coercion and physical restraint. But restrictions on speech are also said to violate the right to autonomy. This gives rise to an interesting dilemma:

Threats vs. Speech Dilemma

First horn: Restrictions of speech violate the right to autonomy. So, if we prohibit threats, then we prohibit speech. So, we infringe on the right to autonomy.

Second horn: But threats also vitiate the right to autonomy. So, if we don’t prohibit threats, then we  infringe on the right to autonomy.

so, we are damned if we do, and damned if we don’t.

How we choose to solve this dilemma depends on the case at hand. In the case of true threats (threats of violence) and blackmail, we solve the dilemma by restricting speech by prohibiting the threat.

But as the landmark Supreme Court case NAACP v. Claiborne Hardware Co. 458 U.S. 886 (1982) attests to, when the threats occurs in the context of a political protest, then the Court will rule that they are constitutionally protected speech. If you threaten to socially embarrass people unless they  participate in the political boycott you organized (e.g., by ridiculing them in church), then your threat is constitutionally protected, but if you threaten to embarrass a person (e.g., by telling his wife about an affair he once had), unless he works for you for free twice a week, then the threat is a crime. 

But as Eugene Volokh notes, it's not always this simple where to draw the line between blackmail, on the one hand, and threats that are constitutionally protected, on the other.

The two first posts in this three-part mini-series on hate speech can be found here and here.