Freedom of political speech, hate speech and the argument from democracy: The transformative contribution of capabilities theory

Much of the most influential free speech scholarship emphasises that ‘political speech’ warrants the very highest standards of protection because of its centrality to self-governance. This central idea mitigates against efforts to justify the regulation of political speech and renders some egregiously offensive or harmful speech worthy of protection from a theoretical perspective. Yet paradoxically, in practice, in many liberal democracies such speech is routinely restricted. In this paper, I develop an argument that is compatible with both the argument from democracy and the notion of political speech, and that can justify the regulation of hate speech, by joining an understanding of the constitutive role of speech in individuals’ lives derived from Nussbaum's capabilities theory with ideas of democratic deliberation and legitimation drawn from a Habermasian framework. This approach attends to the conditions required at an individual level for democratic legitimation to occur at a social level. It permits the development of a robust theoretical justification for the protection of a broad range of speech. It simultaneously provides a guiding framework for regulatory policy designed to ameliorate the effects of, and inhibit the expression of, that speech, which could imperil the conditions required for individuals to develop their own capabilities and which instantiates anti-democratic practice, and thus discourse, preventing the very communications required to perform democracy from being uttered. Thus, my argument also strengthens and transforms the argument from democracy as a justification for free speech protection more generally.