Toward a Legal Concept of Hatred
Eric Heinze · Oxford University Press eBooks · 2018
Antidiscrimination law focuses on material conduct. A legal concept of hatred, by contrast, focuses on attitudes, as manifest notably through hate speech bans. Democracies by definition assign higher-law status to expression within public discourse. Such expression can, in principle, be legally curtailed only through a showing that it would likely cause some legally cognizable harm. Defenders of bans, struggling with standard empirical claims, have overtly or tacitly applied “anti-Cartesian” phenomenological and sociolinguistic theories to challenge dominant norms that largely limit such harm to demonstrable material causation. Such notions of harm cannot, however, be reconciled with higher-law norms barring viewpoint-selective penalties on expression. Still, a democracy retains alternative means of combating hateful attitudes, including formal and public educational policy, and codes of professional practice in the public and private sectors.