'Should We Protect Animals from Hate Speech?' by Josh Milburn and Alasdair Cochrane in (2021) Oxford Journal of Legal Studies comments
Laws against hate speech protect members of certain human groups. However, they do not offer protection to nonhuman animals. Using racist hate speech as our primary example, we explore the discrepancy between the legal response to hate speech targeting human groups and what might be called anti-animal or speciesist hate speech. We explore two sets of possible defences of this legal discrepancy drawn from the philosophical literature on hate speech—non-consequentialist and harm-based—and find both wanting. We thus conclude that, absent a compelling alternative argument, there is no in-principle reason to support the censure of racist hate speech but not the censure of speciesist hate speech.
The authors argue
Imagine a group—let us call them the ‘White Defence League’ (WDL)—who distribute leaflets in a residential area. In their leaflets, the WDL decry the ‘propaganda’ spread by anti-racists and argue that white people are morally superior to those of other races. They further argue that white people should prioritise other white people—even if that means ignoring the exploitation, suffering and death of non-white people. If the WDL were operating in a liberal state with laws against ‘hate speech’, it is not hard to imagine that its members would face criminal prosecution for distributing the leaflets.1 In the UK, for example, members of the WDL might face prosecution for the distribution of ‘written material which is threatening, abusive or insulting’, that, regardless of the intent of the distributors, is likely to stir up ‘racial hatred’.
But now imagine a different group, which we could call the ‘Human Defence League’ (HDL). The HDL also distribute leaflets in that same residential area. In their leaflets, they decry the ‘propaganda’ spread by animal-rights and vegan activists, and argue that humans are morally superior to other animals. They further argue that humans should prioritise other humans—even if that means ignoring the exploitation, suffering and death of non-human animals. While the claims and arguments of the HDL are very similar to the claims and arguments of the WDL—except, of course, that they are decrying animals, rather than non-white people—the HDL would not be subject to censure under hate-speech laws in the UK or any other liberal state.
There is thus a discrepancy between the legal response we could expect to the WDL’s and HDL’s respective leafleting campaigns. Our question is whether such a discrepancy is justified in criminal law. As such, we put to one side the related but separate questions concerning, first, whether hate-speech laws are justified at all (more on this shortly); second, the morality of engaging in hateful speech (ie engaging in hate speech may involve many wrongs whether or not it is the law’s business); and, third, the possibility of non-criminal legal means for challenging hate speech. In this article, we will explore several potential justifications for the discrepancy, ultimately concluding that none of them are successful. This leads to the conclusion that, in principle, there is no reason to believe that members of the WDL should face criminal sanction while members of the HDL should not. Unless a better justification for the discrepancy can be identified, either both (in principle) should face sanction or neither should.
Before exploring reasons for endorsing the discrepancy in earnest, we want to note two things. First, we acknowledge that, for some readers, even asking this question is distasteful, given historical and contemporary uses of animalising and dehumanising insults against non-white people. In response, we first note that the purpose of this article is absolutely not to equate the moral worth of non-white people with that of animals. We acknowledge that there are important differences between humans (of all races) and animals, and the nature and kind of injustices they face. We are interested only in the narrow question of what relevant differences there might be between the two for the purposes of hate-speech law, including differences in the impact that hate speech directed at these respective groups might have. We further note that the power of animalising language rests upon the fact that animals are themselves marginalised. If animals were afforded the respect that we (the authors) believe they are due, these insults would lose their rhetorical strength. We finally note that this comparison is intended to be a starting point to explore comparisons between hate speech targeting human minorities—racial, gender, sexual, religious and so on—and what we might call anti-animal or ‘speciesist’ hate speech. The specific comparison is not an end in itself.
The second consideration that we want to acknowledge is that there is already controversy about how, if at all, states can justify laws against hate speech, as well as what constitutes hate speech. To reiterate, the purpose of this article is not to take a stance on the question of justification. And yet, in exploring possible rationales for the discrepancy outlined, we will naturally examine a range of possible justifications for hate-speech laws. And though we acknowledge that there are difficult questions about the line between ‘merely’ hurtful speech and speech that could fairly be called hate speech, we wish to put that question aside. We are here focusing on the core question of whether one can distinguish paradigmatic forms of hate speech—racist, sexist, homophobic, ableist, etc—from what we might call anti-animal or ‘speciesist’ hate speech. Thus, we are not going to attempt to offer a definition or conception of hate speech, speciesist or otherwise, beyond noting that ‘hate speech’ is often thought to include material that is neither (in the colloquial sense) hateful nor speech. For now, we simply ask that readers allow that the WDL’s actions would typically be viewed as hate speech, while the HDL’s—though structurally identical—would not.
But while a precise definition of hate speech is not to be offered, it is reasonable to ask what kinds of anti-animal speech are motivating this enquiry. Some current practices that strike us as potential examples of speciesist hate speech include the following. First—and this is the kind of case that inspired the HDL vignette—pro-animal-agriculture organisations (including governmental organisations) publishing literature or films claiming that great harms inflicted on animals should be tolerated or ignored for the sake of seemingly less weighty human interests. Second, articles written by avowedly speciesist critics of animal protectionism claiming that animals’ interests do not matter simply because they belong to animals. Third, the public campaigning of conservationists built upon explicit declarations that the lives and suffering of members of certain non-native animal species matter less than the lives and suffering of members of native animal species. While each of these instances has a clear analogy in the case of hate speech targeting humans, each also brings with it its own particular conceptual and normative puzzles, which there is not space to explore fully here. Though these examples help motivate the enquiry, it might be the case that not all do (or should) constitute ‘hate speech’ proper.
This article advances by examining a variety of different ways in which the legal discrepancy in responses to the WDL’s and HDL’s leafleting might be justified. We split these into two groups. The first section explores what we refer to as ‘non-consequentialist’ defences of the discrepancy—in that they justify the differential treatment in terms unrelated to the impact that the speech has (or is likely to have). The second addresses defences of the discrepancy grounded in claims about harm resulting from hateful speech. Our conclusion will be that none of the reasons to defend the discrepancy canvassed are satisfactory, leading to the conclusion that either both the WDL and the HDL should be open to censure or neither should.
