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1 Khan Muhammad Khan (Student ID: 260958548) Professor Levy POLI 367 Fall 2022 Tuesday, October 18, 2022 The Freedom of Speech and its Limitations: The Weighing of Damages Within the parameters of Western liberal societies, the designation and subsequent entail- ments of the term “hate speech”, lacks veracious characterization, even by legitimized institu- tions such as the United Nations, which asserts the following: “There is no formal definition of “hate speech” in International Human Rights Law and, therefore, most United Nations instru- ments refer to “incitement to discrimination, hostility or violence”. In pursuing reconciliatory discourse of the apparent social issues of division, such as racism, sexism, and xenophobia, the absence of definitive classification and scope of the term “hate speech”, produces the abundance of ineffectual discourse that fails to foster notions of liberty, equality, and justice, often attributed as cornerstone tenets of liberal societies. The aforementioned principles also epitomize the foun- dational elements of the concept of human rights; these rights, inherent and universal, in their ap- plication, attempt to provide individuals protection from infringements on their liberties. It be- comes an intrinsic obligation of the liberal state to interdict, deter, and diminish the existence of infringements that target the individual liberties of each of its citizens, whether by private per- sons or the state itself. With this, one can acknowledge the apparent plausibility of limiting the occurrence of any speech or discourse that is discerned as discriminatory or derogatory, in nature and connotation. An individual’s protection from libellous, slanderous, or “hateful” speech, be- comes the responsibility of their duty-bearer, ultimately established as the state, which is deemed as the biggest protector of its citizen's rights. The dichotomy that one can evidently address, is

2 Khan the weight of damages that “hate speech” disposes to the individual liberties of a state’s citizens, which would warrant and require the political and legal apparatus of the state in prohibiting its occurrence, in relation to the simultaneous upholding of liberty that is constituted as freedom of thought, expression, and conscience. The state’s act of intervention through the implementation of the statutory prohibition on individual or collective speech becomes a violation of one’s lib- erty to free expression, as the infringement on this essential liberty constitutes illiberal damages that outweigh the supposed harm in the propagation of “hate speech”, due to the absence of cate- gorical characterization that explicitly deduces its implications. In this paper, I will present an argument that attempts to corroborate this thesis by initially addressing the weight of damages notion attributed to this dichotomy. I will then highlight any relevant objections and outline a counterargument as maintained by Jeremy Waldron, in his, The Harm in Hate Speech. I will conclude by providing further substantiation for the claims of my thesis, by focusing on the conclusions laid out in, The Liberty of Ancients Compared with that of Moderns , in which Benjamin Constant discusses the predominance of individual freedoms and rights attributed to the political frameworks of the moderns. It becomes relevant to characterize definitively the implications and scope of the terms, “freedom of speech” and “freedom of expression”, which will be used in application to refer to these terms, throughout the course of this paper. The Merriam-Webster dictionary describes free- dom of speech/expression as “the right to express one’s opinion freely” (Merriam-Webster, Incor- porated). This characterization denotes an individual’s right to state their opinions and express themselves, according to those opinions, freely , without interference. The notion of freedom of speech allows one the ability and opportunity to have their opinions acknowledged while dis- cerning their value with equal distribution. It intends to promote the concept of inclusion and di-

3 Khan versity, by refraining from the evident historical exclusion of oppressed members of society whose exclusionary opinions were shunned, censored, or suppressed. Within the outline of the applied definition, the words right and freely act as an agent of protection, designed to defend the sanctity of the notion from semantical manipulation. Right , in the linguistic view, is utilized to establish how “freedom of speech” is a sacrosanct entitlement that everyone is owed naturally, it is not a prerogative for some; there exists no exclusivity for the bearers of this right. The use of freely, is intended to denote protection from interference or infraction, the free nature of free- dom of speech has within it, reinforcements against the potential of restrictions. Freedom of speech and expression has maintained a symbiotic relationship with the notion and elements of liberty. The term liberty often depicts themes of autonomy and freedom, it promotes the suste- nance of self-deliberation that everyone is endowed, and it emphasizes the individual’s monop- oly over their own affairs; however, an idealist view of liberty also stretches the bonds of liberty that are not foreseeable in practical terms. Implementing a pragmatic view of liberty allows one to highlight concretely, the manner in which liberties must be exercised, and the manners in which, the practical implementation of that exercise is plausible in society. Conjoining the two now, the theme of liberty and the notion of freedom of speech, “speech” and “expression” are both forms and sets of communication that one utilizes to dictate one’s question, command, di- rective, opinion, thought, belief, etc. Within liberal societies, those forms and sets of communica- tion, are protected from restriction in the practical application that an individual cannot be barred or censored from speaking. An individual has the right to profess one’s opinion, critique the per- spective of another, engage in relevant discourse and express their beliefs, without stringent forces of suppression, though one must acknowledge the existence of certain practical realities regarding social climates. Freedom of speech does not warrant freedom and protection from the

4 Khan impact, influence, or possibly the ramifications of that speech. An individual is duly responsible for their utterances; the implementation of freedom of speech in society is meant to promote tenets of liberty, so that individuals and citizens are not oppressed in matters concerning their so- cial involvement. However, the existence of social forums in which participation is voluntary and speech remains protected does not neglect that one’s speech and expression are accounted for, every individual must obligate themselves to the potential consequences of their speech, which ultimately manifests itself as the social pressure that often acts as a check and balance for one’s expression. Though the application of freedom of speech is uniquely associated with that of soci- ety as a whole, its pertinence is also evident and perhaps even more so, within the implications of human rights and the role of the individual. Human rights, which are composed of natural law, intrinsic principles that dictate moral guidelines and legal positivism, moral guidelines that are agreed upon based on their merits, both offer insight into the polemic nature of freedom of speech laws. Within legal positivism, individuals consent themselves into adopting a subjugator role with a duty-bearer or body of duty-bearers. These actors actively facilitate the upholding and fulfilling of the preservation of human rights for their right-bearers. The state, which is the pre- sumed duty-bearer of most civilized societies, is attributed with being the greatest protector of human rights for its citizens, while simultaneously being the greatest violator, due to the power it is able to exert legislatively, judicially, and bureaucratically. This presents a predicament to the facilitation of the citizen's liberty, as the agent capable of the greatest violations has the ability to control the limitations of speech, an arrangement that presents the possibility of the arbitrary abuse of power and oppression. Allowing the systematic body of protection from violation, that being the state, to regulate limitations on fundamental human rights, creates an imbalance for any notion of the citizens of a state to express their grievances, critiques, and judgements of that au-

5 Khan thorizing body. This is when one can address the conflict between the protection of freedom of speech and the proliferation of “hate speech”. The concept for the prohibition of “hate speech” arises from the notion that individuals or groups of individuals belonging to certain disenfran- chised groups become increasingly subjugated to beliefs of exclusion from society as messages of “hate” and discrimination can be targeted to them, without the fear of ramification. The lack of prohibition on speech fosters an environment in which individuals neglect degrees of deco- rum, respectability, and equality, ultimately conveying a social endorsement of those sentiments of exclusion. Freedom of speech, though an inherent human right, can become an infringement of the right to security and peace by those targeted victims of that speech. That is where the phrase “hate speech” comes into implementation, as the voicing of opinions and beliefs that aim to facilitate exclusion and ostracism, to individuals who already endure that form of exclusion and “hatred”. This leads to the issue of what constitutes “hatefulness”, as a lack of definitive at- tributions to the semantical connotations of “hate”, results in a subjective method of discerning what is deemed hateful and what is not. “Hate speech” can describe an array of sentiments, not all of which are unequivocally derogatory, discriminatory, or exclusionary, in intent or delivery. For instance, suppose the following hypothetical: an individual, after studying the Holy Quran, wishes to critique Islam’s exclusion and explicit discrimination of members of the LGBTQ+ community, and deems Islam as an “intolerant” faith, members of the Muslim faith or others, may discern this critique as “hateful” or even “intolerant”. The individual critiquing the Islamic faith, could argue that his critique of the faith is intended to promote notions of inclusion to Mus- lims into accepting members of the LGBTQ+ community; however, given that Muslims are clas- sified as a minority in most Western liberal countries, this critique is further promoting exclu- sionary sentiments to an already disenfranchised group. This hypothetical is not intended to de-

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