Hate speech laws: expressive power is not the answer

Lepoutre, M. ORCID: https://orcid.org/0000-0001-7573-8585 (2020) Hate speech laws: expressive power is not the answer. Legal Theory, 25 (4). pp. 272-296. ISSN 1469-8048 doi: 10.1017/S135232522000004X

Abstract/Summary

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.

Item Type	Article
URI	https://reading-clone.eprints-hosting.org/id/eprint/96658
Identification Number/DOI	10.1017/S135232522000004X
Refereed	Yes
Divisions	Arts, Humanities and Social Science > School of Politics, Economics and International Relations > Politics and International Relations
Publisher	Cambridge University Press
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