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Monday, October 28, 2013

The Normativity of Using Prison to Control Hate Speech: The Hollowness of Waldron's Harm Theory

The title of this post comes from this recent article arguing that imposing prison sentences for hate speech is disproportionate to the harm stemming from such speech, and as a result is an injustice to the speaker. Here is the abstract:

We question the justice of using prison sentences to control hate speech. It is argued that prison sentences should be used only to deter offensive and hateful speech that harms others. However, the harm requirement cannot be satisfied merely by demonstrating theoretical harm in the abstract, as Jeremy Waldron does in his recent book. Instead, factual harm has to be demonstrated because prison is in fact very harmful for the expresser of the offensive and hateful speech. There is noting wrong with penal measures being used to deter this kind of speech, but harmful prison sentences should not be used to deter harmless speech. Waldron asserts that the United States should follow the British model, among others, of using prison to control and chill free (hate) speech. Waldron wants a model of unfree speech for some. We aim to show that the United States should resist enacting hate speech laws similar to the unjust laws found in Britain, where people have received long prison sentences for uttering offensive and hateful thoughts. To use prison sentences is to use a sledgehammer to crack a walnut: it is a grossly disproportionate and unjust penal response. Particular issue is taken with Waldron’s harm theory. The core element of the paper is the Waldron debate, because the type of vacuous harm theory he puts forward has the potential to be used by lawmakers to justify unjust penal responses such as harmful prison sentences for harmless (even though grossly offensive) speech.

 

http://lawprofessors.typepad.com/civil_rights/2013/10/the-normativity-of-using-prison-to-control-hate-speech-the-hollowness-of-waldrons-harm-theory.html

First Amendment, Freedom of Speech, Prisons and Prisoners, Theories of Punishment | Permalink

Comments

I HATE IT when lawmakers threaten my right to free speech.

Posted by: Liberty1st | Oct 29, 2013 6:16:08 PM

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