speech and respect - College of Social Sciences and International ...

3. The Excesses of State Regulation
If civil libertarianism can neither avoid politics nor maximise freedom,
the conventional alternative of state regulation inevitably
invites authoritarian excess. The history of laws against blasphemy,
defamation, pornography, obscenity, and hate speech hardly
inspires enthusiasm or encourages emulation. Law dichotomises
reality, rupturing continua and magnifying the importance of arbitrary
boundaries. Its pigeonholes strip events of the context and
history that give them meaning. Law cannot deal with the irreducible
ambiguity of symbolic expression. Art accentuates ambiguity;
indeed, unambiguous literature, drama, dance, painting, or sculpture
is not art but agit-prop. Yet the qualities that justify art's
immunity from state intrusion are extraordinarily elusive. Law has
great difficulty attending to the speaker's identity and motive,
audience perception, and the capricious cultural environment—all
of which can transform the harm and moral quality of speech. The
liberal state can exercise power only through formal law, but
formality inflicts heavy costs on partipants and the state, slows the
response, and fosters procedural fetishism. The severity of state
sanctions can be justified only by consequentialist reasoning—
speech is punished not for what it is but for the actions it provokes.
Consequentialism is empirically problematic, however, whether
pornography is blamed for rape or hate speech for racial attacks.
And if consequences are the rationale for state regulation, why focus
on aberrant extremes rather than the manifold harms of daily life?
Legal regulation of speech often encourages evasion; even when
effective it constructs deviance, valorises evil, attracts attention, and
confers martyrdom. I will address these arguments in turn.
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