FREE SPEECH AND HATE SPEECH.

THE PRESENCE of racial hate propaganda in our community and on the internet discomfits free speech advocates and severely tests the principle of free speech and expression. This underscores a dramatic change of social values that took place in the twentieth century, from a time when many other forms of speech and expression were constrained by law or popular sentiment but, as described by Samuel Walker in respect of 1920s America (Hate Speecb, 1994), "unabashed racist thinking" was acceptable and frequently expressed "even among the most educated members of society". Now, by contrast, redress is demanded confidently for every insult or offence to members of racial and other minorities that have come under the protection of anti-discrimination law.

In its overall spirit, this revaluation was justified, but its manifestations include new kinds of moral rigidity and illiberalism. With its exacting standards of politeness and inoffensiveness, contemporary human rights law often conflicts with basic individual liberties such as freedom of thought, conscience, speech and expression (all of which I'll refer to loosely as "free speech"). Both the new standards and the older liberal values have something to recommend them; when they clash the intellectual and practical problems are genuinely difficult, suggesting that compromise may be necessary.

What should be done about the evil of racial hate propaganda without abandoning a commitment to free speech? A starting point is to identify the deeper considerations that underlie freedom of speech as a political principle. In part, the justification for free speech is the general libertarian presumption against coercing individuals from living how they please and doing what they want. However, a number of justifications are commonly put forward for free speech, in particular. In her judgment in R v Keegstra, a 1990 Canadian Supreme Court case on hate propaganda, Justice McLachlan provided an accessible and concise synopsis: (1) free speech promotes "the free flow of ideas essential to political democracy and democratic institutions" and limits the ability of the state to subvert other rights and freedoms; (2) it promotes a marketplace of ideas, which includes, but is not limited to, the search for truth; (3) it is intrinsically valuable as part of the self-actualisation of speakers and listeners; and (4) it is justified by the dangers for good government of allowing its suppression.

Though other justifications are sometimes adduced, such as the need to obtain information about products and services to make enlightened choices in a consumer society, those stated by Justice McLachlan cover the most persuasive considerations. She has described a complex of well-known reasons, distinguishable but overlapping, why free speech should be recognised as a basic liberty, even if, as she puts the point, "free expression may put other values at risk".

Each of these justifications can be elaborated in a variety of ways and some may need to be qualified. The first and fourth can be bracketed together as democratic justifications. They relate to aspects of free speech's political role in a liberal democracy. The third relates most closely to general libertarian values but stresses the particular importance of language, symbolism and representation for our lives and autonomy. It can be developed further by referring to the importance for individuals of communicating deeply held religious and similar beliefs and the value of creativity as expressed in literature, art and many other ways, including personal presentation or "style".

The issue here is how we should treat other individuals as moral and psychological beings. We might refer to this as the "moral" justification, if we want to distinguish between political principles and principles that relate to the moral rights of individuals and our intuitions about how people should be treated. However, it also highlights the fact that we are beings with psychological needs that involve self-expression and self-actualisation. With this in mind, and with some misgivings about the expressions, I will refer to the "psychological" justification of free speech.

Alan Haworth (Free Speech, 1998), has suggested that the metaphor of a marketplace of ideas, the second justification mentioned by Justice McLachlan, is misleading. As Haworth explains, John Stuart Mill's classic defence of free speech, in On Liberty (1859), is actually phrased as a defence of "the Liberty of Thought and Discussion". Mill did not express this idea in terms of a "marketplace" and his conception was essentially that of freedom to develop and discuss ideas in the search for truth or understanding. Mill pictured society not as a marketplace of ideas, but as something like a large-scale academic seminar. A seminar, of course, is an effective forum for refining and testing ideas only because its participants can rely upon tacit standards of conduct and interaction, including some degree of mutual respect.