Legitimacy, Hate Speech, and Viewpoint Discrimination

One of the most powerful arguments against state regulation of expression has, in recent years, been presented in a reinvigorated and developed form. The argument in question maintains that state regulation of expression undercuts the legitimacy of the law because it involves the suppression of a source of democratic contestation. The paper distinguishes between three importantly different versions of this legitimacy argument that existing work fails to clearly separate. Doing so is important because different forms of the legitimacy argument are supported by different considerations, vulnerable to different objections, and have different implications. Further, the paper levels two serious objections to legitimacy arguments against hate speech regulation. Firstly, it offers a consolidated defence of an extant rejoinder to the legitimacy argument, based on the claim that some person's speech can 'silence' the expression of others. Secondly, the paper challenges the claim that the regulation of hate speech is necessarily viewpoint discriminatory.