Hate Speech

Hate speech is expression that attacks or demeans people on the basis of group characteristics such as race, religion, ethnicity, or sex. The term carries no settled legal meaning, and what counts as hate speech shifts with the political temperature, which is precisely why conservatives treat efforts to ban it with caution.

Most conservatives accept that bigoted expression is repugnant. They part with progressives over the remedy. The American constitutional tradition protects offensive speech short of incitement, and conservatives argue that handing the state power to police opinion does more lasting damage than the speech it suppresses.

Key Takeaways

• “Hate speech” is a contested category, not a fixed legal one; its boundaries move with prevailing opinion.
• The United States protects offensive and even hateful expression, drawing the line at incitement to imminent lawless action under Brandenburg v. Ohio (1969).
• Canada and much of Europe criminalise hate speech directly, as Canada does under section 319 of the Criminal Code, upheld in R v Keegstra (1990).
• Conservatives favour countering bad speech with more speech rather than empowering the state to define and punish forbidden views.

History And Context

The modern argument for free expression runs through John Stuart Mill, whose 1859 essay On Liberty made the case that even false or offensive opinions serve truth by forcing received views to be tested and defended.¹ Mill was a liberal, not a conservative, but his reasoning entered the broader Anglo-American suspicion of censorship that conservatives later drew on.

After 1945, two paths diverged. The United States, through a line of First Amendment rulings, settled on near-absolute protection for speech, criminalising only incitement and true threats. Canada and Western Europe, marked by the memory of fascist propaganda, wrote hate-speech provisions into law. The Canadian Supreme Court in R v Keegstra upheld the criminal prohibition against a Holocaust-denying schoolteacher, accepting limits on expression that the American framework would reject.

The Conservative Position

Conservatives argue that the power to ban hate speech is the power to define it, and that this power will be turned against whoever currently holds unpopular views. Roger Scruton warned that censorship in the name of compassion tends to silence legitimate dissent and entrench an official orthodoxy.² Because the category is elastic, statutes drafted to punish racists are later stretched to cover religious conviction, political argument, and satire.

The conservative remedy is social rather than legal: rebuttal, ostracism, and the slow work of persuasion. On this view a free society tolerates ugly speech not because it is harmless but because the cure of state control is worse than the disease, and because confidence in one’s own position should not require the silencing of opponents.

Differing Positions

The strongest case for hate-speech law comes from Jeremy Waldron, who argues that such expression assaults the dignity and standing of vulnerable groups, denying them assurance of equal membership in society.³ On this account the harm is real and ongoing, not merely offensive, and a decent legal order may protect citizens from it. Defenders of the Canadian and European models add that unrestricted speech allowed twentieth-century demagogues to flourish, and that liberal democracies are entitled to defend themselves against the propaganda of their own destruction.

References

1. John Stuart Mill, On Liberty (John W. Parker and Son, 1859).
2. Roger Scruton, How to Be a Conservative (Bloomsbury, 2014).
3. Jeremy Waldron, The Harm in Hate Speech (Harvard University Press, 2012).
4. R v Keegstra, [1990] 3 S.C.R. 697 (Supreme Court of Canada).