Hate Speech Laws: Expressive Power Is Not the Answer

Hate speech is widespread in contemporary democracies. Because such speech has significant potential for harm, many advocate enacting laws that prohibit it. According to an increasingly influential argument, an essential part of what justifies such hate speech laws is their expressive power: their ability to publicly communicate profound disapproval of hate speakers and their worldview. By emphasising hate speech bans’ expressive dimension, rather than their ability to deter hate speech, this argument promises to sidestep the daunting empirical difficulties that continue to plague the ‘deterrence’ justification for bans. Yet the expressive argument faces a challenge: if we wish to communicate opposition to hate speech, why not do so via more speech (or ‘counterspeech’), rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Drawing on recent work in the philosophy of language, I examine three types of considerations that purport to explain the expressive distinctiveness of bans: considerations of expressive strength; considerations of expressive directness; and considerations of expressive complicity. These considerations, I demonstrate, either fail to establish that bans are expressively distinctive compared to counterspeech, or presuppose that bans successfully deter hate speech. The upshot is that the expressive argument offers no independent support for hate speech laws. To the extent that bans do not play a distinctive expressive role, the expressive argument gives us no reason to supplement counterspeech with bans. And even insofar as bans may have a distinctive expressive role, this gives us a reason to adopt bans only if the elusive deterrence argument can first be vindicated. Thus, even in the best case, the expressive argument encounters two problems: it does not actually circumvent empirical controversies regarding bans’ effectiveness as deterrents; and it appears redundant, as bans are expressively distinctive only insofar as hate speech is already suppressed.