The Philosophical Case for Hate Speech Laws

Free speech absolutism has become something of a secular religion in contemporary liberal democracies. The proposition that government should never restrict expression, no matter how harmful, is treated not as a debatable policy position but as an axiomatic truth. Yet this absolutism rests on philosophical foundations far shakier than its proponents acknowledge. A careful examination of liberal political theory, speech act philosophy, and democratic legitimacy reveals that hate speech laws are not an unfortunate compromise with free expression principles, but rather their logical extension and protection.

Equality as a Precondition for Free Speech

The standard liberal defence of unrestricted speech assumes a level playing field: a marketplace of ideas where the best arguments prevail through rational deliberation among equals. This assumption is not merely optimistic but fundamentally mistaken. Meaningful free speech requires rough equality of standing among speakers. When systematic hatred degrades certain groups' capacity to participate in public discourse, it corrupts our discursive ecosystem.

Consider the position of transgender people in Aotearoa today. When prominent commentators repeatedly misgender trans people, question their existence, or advocate for their exclusion from public spaces, this is not simply robust debate. It is an assault on the basic preconditions that enable trans people to speak and be heard as equals. A trans person entering a public forum already poisoned by dehumanising rhetoric does not do so on equal terms. Their credibility is pre-emptively undermined, their safety potentially threatened, their psychological resources depleted before they utter a word.

Hate speech silences not through direct censorship but by shaping the conditions under which targeted groups' speech is received and interpreted. It does not simply add one more voice to the democratic chorus—it systematically diminishes the voices of its targets. When authoritative speakers repeatedly characterise trans women as predators or mentally ill men, this shapes how trans women's testimony is received. Their accounts of discrimination are dismissed as delusion, their advocacy reframed as unreasonable demand, their very presence constructed as threat.

This is the crucial inversion that free speech absolutists miss: unrestricted hate speech does not maximise freedom of expression but concentrates it. It creates a hierarchy where some voices resound with amplified authority while others are structurally muted. Hate speech laws, properly conceived, recognise that formal rights to speak mean little when informal conditions make certain speakers unhearable.

The Dignity-Autonomy Tension in Liberal Theory

Liberal political philosophy has long grappled with tensions between competing values. One such tension lies between individual autonomy—the freedom to think, speak, and act according to one's own judgement—and human dignity—the recognition of each person's inherent worth and equal moral status. Free speech absolutism resolves this tension by privileging autonomy absolutely. But this is a choice, not a necessity, and it is a choice many liberal democracies have rejected.

The German Basic Law, forged in the shadow of Nazism, explicitly grounds human rights in the inviolability of human dignity. Article 1 declares that human dignity is inviolable, and this principle constrains even free expression rights. The German Constitutional Court has consistently held that speech denying the Holocaust or inciting hatred against minorities violates human dignity and may be prohibited. This is not an abandonment of liberal democracy but a considered judgement about which liberal values take priority.

Canadian jurisprudence offers another model. Section 1 of the Canadian Charter of Rights and Freedoms guarantees free expression, but subject to "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Canadian courts have upheld hate speech prohibitions on the grounds that they protect the dignity and equality of targeted groups. The Supreme Court of Canada in Saskatchewan (Human Rights Commission) v Whatcott recognised that hate speech "causes serious discord between various cultural groups, erodes the tolerance and open-mindedness that must flourish in a multicultural society, and impedes the target group members' ability to find self-fulfilment."

Aotearoa's constitutional framework, particularly when understood through the principles of Te Tiriti o Waitangi, offers resources for a similar approach. The principle of mana recognises the inherent dignity and authority of each person. The principle of whanaungatanga emphasises relationships of mutual responsibility and care. These principles sit uneasily with a framework that privileges the speaker's autonomy to demean over the target's dignity to be recognised as fully human.

The question is not whether we will balance dignity against autonomy, but how. Free speech absolutism makes a choice to subordinate dignity entirely. A more defensible liberal position recognises that both values matter and that in cases of irreconcilable conflict, the systematic degradation of human dignity through hate speech cannot be tolerated in a society genuinely committed to equality.

Speech Acts and Performative Harm

Much opposition to hate speech laws rests on a fundamental misunderstanding of what speech does. The "sticks and stones" defence treats speech as merely descriptive—as representing the world rather than acting upon it. But speech act theory, developed by philosophers like J.L. Austin and subsequently refined by many others, demonstrates that speech is often performative. It does not merely describe reality but constitutes it.

When a minister pronounces a couple married, they do not describe a pre-existing state of marriage—they enact it. When a judge sentences a defendant, they do not report a fact but create a legal reality. These are paradigm cases of performative utterances, but the category extends far beyond official pronouncements. Speech can enact subordination just as effectively as it enacts marriage.

Consider misgendering. When authoritative speakers consistently refer to a trans woman as "he" or "him," they are not simply making a descriptive error. They are performatively denying her gender, enacting her exclusion from the category "woman," and thereby subordinating her. This is not a matter of hurt feelings. It is a speech act that materially constitutes discrimination.

The philosopher Mary Kate McGowan has argued that hate speech exercises "covert exercitive authority"—it changes the permissibility facts about what actions are socially licensed. When slurs and dehumanising rhetoric become normalised, harassment and discrimination become permissible in ways they were not before. Speech that says "these people are not fully human" or "these people are dangerous predators" does not simply report alleged facts. It licenses action based on those characterisations.

This is why hate speech cannot be met simply with counter-speech, as the classic liberal remedy suggests. You cannot merely argue against a performative utterance that has already reconstituted the social world. A trans person cannot simply counter-speak their way out of a discursive environment that has already constituted them as suspect. The harm has been done in the very act of hateful speech.

Recognising the performative dimension of hate speech reveals why prohibition can be justified even within a broadly liberal framework. We do not permit speech that is defamatory or incitement to immediate violence. These prohibitions are justified because such speech does not merely express ideas but performs harmful acts. Hate speech that systematically subordinates and silences belongs in the same category.

Democratic Legitimacy and Inclusive Deliberation

Democracy is commonly defended as government by discussion—a system where political decisions emerge from inclusive deliberation among free and equal citizens. On this account, free speech is not merely instrumentally useful but constitutive of democratic legitimacy. Laws are legitimate only when all those subject to them have had a meaningful opportunity to participate in the deliberative processes that produce them.

But hate speech corrodes the very foundations of democratic deliberation. It does so in at least three ways.

First, it excludes voices. When public discourse becomes hostile to certain groups, members of those groups withdraw from participation. They do so not because they lack arguments but because the psychological, emotional, and sometimes physical costs of participation become unsustainable. A deliberative forum poisoned by transphobic rhetoric is one from which trans people are effectively excluded. Their withdrawal does not reflect the weakness of their arguments but the toxicity of the environment. Democratic legitimacy is thereby compromised—decisions affecting trans people are made in forums from which they have been driven.

Second, hate speech spreads disinformation that degrades deliberative quality. Much contemporary hate speech against trans people consists of demonstrable falsehoods: that trans women retain male physical advantages in all circumstances, that gender-affirming healthcare is experimental and irreversible, that children are being transitioned on a whim. These claims persist not because they survive rational scrutiny—they do not—but because they are repeated frequently by authoritative sources. When disinformation becomes entrenched, deliberation becomes impossible. Citizens cannot reason together toward sound policy when the factual ground beneath them has been deliberately poisoned.

Third, hate speech shifts the Overton window toward eliminationist positions. Political theorists have long recognised that public discourse shapes the boundaries of acceptable policy debate. When hateful rhetoric becomes normalised, previously unthinkable policies enter the realm of serious consideration. We see this process unfolding globally: proposals to ban gender-affirming healthcare for minors, to prohibit trans people from using facilities matching their gender, to erase legal recognition of gender identity altogether. These policies were fringe positions a decade ago. Sustained hate speech has made them mainstream.

A deliberative democracy cannot function when some citizens are systematically excluded, when disinformation displaces fact, and when the window of acceptable policy is shifted through hatred rather than reason. Protecting democratic legitimacy therefore requires protecting the conditions of inclusive deliberation. This does not mean shielding people from disagreement or criticism. It means preventing the kind of systematic dehumanisation that makes genuine deliberation among equals impossible.

International Human Rights Obligations

The philosophical case for hate speech laws converges with Aotearoa's binding legal obligations under international human rights law. Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR) requires that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) similarly obliges States to prohibit incitement to racial discrimination and hatred.

These are not aspirational suggestions but mandatory obligations. Aotearoa has ratified both treaties without reservation on these provisions. Our failure to enact comprehensive hate speech legislation therefore constitutes not merely a policy shortcoming but a breach of international law.

The UN Human Rights Committee has interpreted Article 20(2) broadly, emphasising that prohibition is required not only for direct incitement to violence but for advocacy of hatred that incites discrimination or hostility. The Committee has noted with concern instances where States have failed to prohibit hate speech against LGBTIQ+ people, recognising that such speech falls within the scope of protected grounds even where not explicitly enumerated in the treaty text.

International human rights law thus provides an external anchor for philosophical arguments. The international community has reached consensus, forged from the ashes of genocide and atrocity, that hate speech cannot be tolerated. This consensus reflects hard-won wisdom about the relationship between speech and violence, between rhetoric and discrimination, between ideas and atrocity.

Conclusion

The philosophical case for hate speech laws does not rest on paternalism, censorship, or the suppression of inconvenient truths. It rests on a clear-eyed understanding of what makes free speech valuable and what makes democracy legitimate.

Free speech matters because it enables citizens to participate as equals in collective self-governance. But when speech systematically silences certain voices, it betrays rather than serves this value. Human dignity matters because it recognises our equal moral worth. But when speech performatively enacts subordination, it degrades dignity into empty formalism. Democracy matters because it makes power accountable to reason. But when hate speech poisons deliberation, excludes citizens, and normalises eliminationist politics, it corrupts democracy at its root.

Aotearoa faces a choice. We can cling to a free speech absolutism that privileges the comfort of the powerful over the equality of the vulnerable. Or we can recognise that protecting free speech sometimes requires constraining hate speech, that valuing autonomy need not mean abandoning dignity, and that democratic legitimacy depends on inclusive deliberation.

The philosophical arguments point clearly in one direction. So do our international legal obligations. The question is whether we have the courage to act on them.