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FROM HARM TO OFFENSE: REFLECTIONS ON THE CONSTRUCTION OF SPEECH NORMS...
impactful speech is that it is inconvenient. Life is a tough place, especially when
people are hunting for signs of disrespect. But for Waldron, the message of hate
speech is that “[t]he time for your degradation and your exclusion by the society
that presently shelters you is fast approaching””’ and hence, it is harmful. In
this approach, the meaning of harm is extended and causation is replaced with
speculation to condemn speech that is considered to be “incorrect” (equivalent to
“the destruction of the moral fabric of society” in past sexually prudish times).”*
The reason for such extension of harm is that the speech denies the equality of the
group’s members, bringing them into harm’s way. This consideration resonates well
with a basic assumption of constitutional democracies, namely, that all citizens are
equal (and have an equal right to respect). However, notwithstanding this natural
inclination to support the fundamental assumption of democratic government,
it does not follow that a position contrary to this fundamental assumption of
equality causes any specific harm and is grounds to apply criminal sanctions — as
it happened in Féret, mentioned above. Waldron would most probably not insist
on punishing hate speech if it is not addressed to a victim group. Meanwhile,
for other scholars it suffices that an offense causes a feeling of degradation and
exclusion (by perpetuating feelings of inferiority), and therefore the expression of
such ideas shall be criminalized in all circumstances.
The direct harm principle is subject to social criticism. In view of its arguably
narrow scope, there were serious shortcomings in the application of the principle,
partly because certain socially important interests and concerns were not
Jeremy Waldron, The Harm in Hate Speech, Cambridge, MA, Harvard University Press,
2012, 96.
According to David Leebron, President of Rice University, “The deliberate use of such terms
as ‘the China virus” foster bigotry that played a significant role in the increase of attacks
against Americans of Asian origins, https://boniuk.rice.edu/, accessed 14 May 2021. The
statement was made in the context of a series of murders that many people claimed that
were racially motivated with no conclusive evidence at the time of the statement. Of course,
President Leebron’s position is not the position of the law, but this train of thought illustrates
how legal concepts change. With the increasing world-wide endorsement of criminalizing
“hate speech” speech that allegedly promotes bigotry will on the long run be proscribed as
harmful (in the current legal categories as being inciting). The cultural shift occurs in an
environment where victim groups compete and where it is believed (perhaps rightly) that
the winning argument is the pain of any given community and the assumption that offensive
and disrespectful speech is harmful because it ‘takes the voice away from the community”,
given that the speech offensive to a group (a minority, or even majority) is frightening and
demeaning to the extent of silencing (members of the group being afraid or humiliated to
the extent that the member will not express their views.) I mention this only to illustrate
how far ordinary speech codes or social construction of appropriate speech moved from
Mill’s harm principle. It is possible that the prevailing First Amendment understanding of
judges in the US will resist this change but certainly there will be and already is a cost on
the legitimacy of the law that resists social self-perceptions of vulnerability.
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