IVR World Congress, The 31st World Congress of the International Àssociation for Philosophy of Law and Social Philosophy,
The Rule of Law, Justice and the Future of Democracy
Workshop “FREE SPEECH AND IDENTITIES: BALANCING EXPRESSION AND RESPECT IN A DIVERSE WORLD“
Covenor:
Oscar Pérez de la Fuente
Carlos III University of Madrid, Spain
IVR Congress Workshop link: https://ivr2024.org/html_file.php?file=sw_016.html&file2=sub_default.html
In an era of heightened social awareness and digital interconnectedness, the dynamics of free speech and its impact on various identity groups—defined by race, gender, religion, and sexual orientation, among other characteristics—have become crucial. The workshop addresses this contemporary issue, offering insights into how free speech can both challenge and support diverse identities and how these identities, in turn, influence the discourse on free speech.
The interplay between hate speech, political correctness, and cancel culture is a multifaceted and contentious issue in contemporary society.
Hate speech, fundamentally, involves communication that disparages a person or a group based on their social or demographic characteristics. This can include speech that incites violence, discrimination, or hostility towards individuals based on race, religion, gender, or sexual orientation, among other identities. The impact of hate speech is profound, contributing to societal divisions, reinforcing stereotypes, and often resulting in psychological harm to the targeted groups. It challenges the boundaries of free expression, raising questions about where to draw the line between permissible speech and that which causes real-world harm.
Political correctness (PC) emerged as a response to mitigate the harms of hate speech. It advocates for language and practices that aim to avoid offence, particularly concerning historically marginalized or disadvantaged groups. While proponents of PC argue that it promotes inclusivity, respect, and social harmony, critics claim it can lead to over-censorship and suppression of free speech. This dichotomy presents a balancing act between fostering a respectful discourse and maintaining the fundamental right to free expression.
Cancel culture, a relatively recent phenomenon involves publicly calling out individuals or entities for perceived offensive behaviour or speech, often leading to widespread criticism or boycotts. While it can be seen as a form of social accountability, empowering people to challenge harmful narratives and behaviours, it also has its pitfalls. Critics argue that cancel culture can lead to unjust mob justice, where individuals are condemned without a fair assessment or a chance to respond, potentially leading to disproportionate consequences.
The interplay of these three elements reflects the complexities of managing speech in a diverse society. It underscores the ongoing debate about protecting freedom of expression while ensuring that this freedom does not perpetuate, harm or marginalize vulnerable groups. The challenge lies in finding a middle ground that respects both individual rights and communal responsibilities.
Call for papers
This workshop is open to those scholars interested in free speech and identities from different perspectives. Please write an email to oscar.perez@uc3m.es with a title and an abstract (300-400 words) of your paper, your affiliation and a short bio by 1 March 2023.
We expect to publish all presented papers in a collective book for a prominent editorial, such as Routledge, or the special issue of a well-indexed Journal.
Accepted abstracts
COUNTER-LIES, DISINFORMATION, AND THE MARKETPLACE OF IDEAS
Enrique Armijo*
Elon University School of Law, USA
The First Amendment to the United States Constitution’s main theoretical account has been as consistent as it has been influential. As John Stuart Mill wrote in On Liberty in 1859, and as First Amendment theory and doctrine, following Mill, have maintained since, the truth-finding process requires that truth and falsity collide in an open marketplace of ideas. Because false speech clarifies truth, and government cannot be trusted to decide for knowledge-seekers what is true, counterspeech is the proper—indeed in most cases the only—remedy for correcting falsity. However, this account itself relies on several false premises. Participants in knowledge production environments are often not motivated by accuracy. False facts and those who spread them are not easily corrected. And some participants, through the dissemination of knowingly false information, seek to frustrate not just the process by which others seek to justify their beliefs, but also their faith that belief justification is even possible.
This Article offers a novel but needed corrective to First Amendment theory by taking a social epistemology approach to considering actors’ motivations in the knowledge production system. In so doing, it introduces and theorizes the concept of counter-lies: disinformation concerning verifiable facts that is shared with the intent to deceive one into believing their mistaken beliefs are true. Despite counterspeech theory, counter-lies do not contribute to the search for truth, nor are they amenable to correction through collision with other ideas. The result of this disconnect is the overvaluation of knowing lies.
Like Mill, its progenitor, the marketplace theory of the First Amendment has failed to take seriously the epistemic duties that an effective truth-seeking process requires, and what happens when those duties are breached. The question is what role knowing and demonstrably false statements should play in a First Amendment theory that keeps those issues properly in view.
* Professor of Law, Elon University School of Law; Faculty Affiliate, Yale Law School Information Society Project and the UNC-Chapel Hill Center for Information, Technology, and Public Life. This research is supported by the John S. and James L. Knight Foundation through a grant to the Institute for Data, Democracy & Politics at the George Washington University, where I am a Research Fellow.
DEMOCRACY, IDENTITY, AND RESENTMENT
REFLECTIONS ON A SUPPOSED CONFLICT BETWEEN SOCIAL PHILOSOPHY AND JURISPRUDENCE
Max Erdmann
LMU Munich, Germany
In his study on the connection between capitalism and a socio-psychological form of “resentment”, Joseph Vogl used the term “structural populism” to describe a characteristic of digitalized public spheres: Far from any romantic notion of an understanding unhindered by hierarchies, these occurred in spaces that prompted structurally populist discourses and thus ultimately produced authoritarian social structures.1 The first part of the article to be presented here is dedicated to Vogl’s philosophical analysis of the connection between the digitalized public sphere in platform economies and the development of authoritarian social structures. It examines the extent to which Vogl’s reference to Nietzsche’s concept of ressentiment is tenable for a socio-philosophical approach to platform economy. More recent philosophical statements that see resentment as a threat to democracy are also discussed in this context. 2
In view of the traditional liberal interpretation of the guarantee of freedom of opinion to a large extent, especially for critical political minorities, the socio-philosophical tendency to identify a form of counter-democracy in resentment seems contradictory: the expression of opinion by critical minorities in particular appears to be worthy of protection in legal scholarship. German constitutional discourse, for example, traditionally excludes a “special right” that restricts resentment. The aim of the second part of this article is to undertake a constitutional-theoretical treatment of a ‘right to resentment’ and at the same time to sound out the limits that a free political order must set for the resentment of those subject to rule. It will also consider limitations of free speech that are rooted in conceptions of respect in a pluralist society.
DISINFORMATION AND THE LAW: THE AMERICAN AND EUROPEAN APPROACHES
Oscar Pérez de la Fuente
Carlos III University of Madrid, Spain
Post-truth, disinformation, and fake news are familiar concepts usually linked with epistemic and philosophical controversies, but actually, they are related to political manipulation. This obscure intent is combined with the authority devoted to feelings and opinions over actual facts. The resulting panorama is less than clear, and an exercise in clarifying concepts is recommended.
The American approach to disinformation could be associated with the ‘marketplace of ideas’ Supreme Court doctrine and Stuart Mill’s precedent approach against censorship and the -possible- epistemic value of errors. The leading case, New York Times v Sullivan, established the ‘actual malice’ standard and can still be helpful in the Post-Truth era. However, disinformation is a great challenge and would need new interpretations of constitutional values.
The European Commission has defined disinformation as “verifiably false or misleading information that is created, presented and disseminated for economic gain or to deceive the public intentionally, and may cause public harm.” From the European perspective, some regulations aim to prohibit the so-called illegal content. Some legal and philosophical issues arise on the interpretation of vague terms, the role of the platforms, and the limited scope of the law in light of the globality of the net. Legal cultures can provide different solutions to disinformation, and learning from and analysing them is good. Still, the Internet is unique and global and may require an effort to think globally.
TWO WRONGS DON’T MAKE ONE RIGHT
Memory, History and the Challenge of Cancel Culture through the lens of a Restorative(-Ethics) Approach
Federico Reggio
University of Padova
The following presentation seeks to bridge the issues and challenges related to cancel culture and the proposals of a restorative(-ethics) approach.
Cancel culture often appears as a reaction to imbalances or to situations of discrimination, or even to alleged violations of fundamental rights: therefore, it is also related to the promotion of renewed civic attention to the protection of a set values, acknowledged by a certain community. Still, actions inspired by cancel culture often rely, on the one hand, on forms of informal sanctioning, including shaming measures, which challenge themselves the protection of (other) fundamental rights (including right to defense, to a fair trial, to freedom of opinion). On the other hand, actions inspired by cancel culture also tend to ‘rebalance’ past injustice through measures which embody deleting memories or destroying symbols. The ‘punitive’ and ‘informal’ character of some of those actions – and their relation to a form of ‘community justice’ – as well as the high symbolic value of other measures (mostly when labelled as forms of ‘reparation’), critically suggest a question: “do two wrongs make one right?”
The provocative question is a conceptual cornerstone for suggesting a critical confrontation between this complex phenomenon and the proposals of restorative justice, whose conceptual core is strongly related with the issue of how to deal with past injustice in a constructive and relational way, which may involve also informal and symbolic measures, in which reparation plays a central role. Among restorative justice’s fundamental principles there is the core-idea that justice is not an ‘automatism’, neither it should ‘imitate’ the violent logic which underlies wrongdoing. If injustice, also metaphorically, embodies ‘some kind of imbalance’, the restorative way of ‘rebalancing things’ cannot happen in a way that violates values and orienting criteria that are vital within a restorative approach, such as, for example, dialogue, empowerment, active responsibility, mutuality and respect.
The overall question is how deal restoratively with situations of (also structural) imbalance which belong to the past and may even be part of history (e.g. related to colonialism or to various forms of discrimination and inequality) and which today are commonly considered also as forms of injustice that need to be rebalanced through a variety of measures. History, memory, equity, and a sheer sense of justice are at stake here, and the key question of this presentation is whether a restorative lens can positively affect a constructive approach on how to ‘correct’ past mistakes and violations.
FAKE NEWS AND HATE SPEECH AS
CHALLENGES TO THE INTEGRITY OF DEMOCRATIC ELECTIONS
Prof Dr Matthias Friehe,
EBS University Wiesbaden
Elections are the first link in the democratic chain of legitimacy. Without proper elections, following the principles of free and equal vote, there is no democracy. However, democratic legitimacy would remain weak if it was limited to a technical principle that was only about counting votes correctly. In contrast, deliberative democracy suggests a highly sophisticated approach to the democratic decision-making process. Proponents of deliberative democracy shape the focus from the decision itself to the decision-making process. They argue that it is not the decision that generates democratic legitimacy, but the inclusion of participants and the soundness of honest argument. At first glance, the digital revolution and the new digitized public seemed to be highly promising for democratic inclusion. Nevertheless, these high expectations turned into disappointment and even frustration when it became clear how successfully some politicians use social media to spread fake news to gain support. In light of this development, it becomes challenging to argue against critics who contend that deliberative democracy is an unrealistic concept. On the other hand, there is a broad consensus that fake news and hate speech constitute real threats to the integrity of democratic decision-making. There is a clear awareness of politicians worldwide that elections could be manipulated by AI-driven hate speech campaigns or by clandestine state propaganda from regimes that want to sabotage democracy.
This presentation seeks to link the discussion on the appropriate balance between freedom of expression on the one hand and the due respect to personal rights and the principle of non-discrimination on the other hand with an underdeveloped but increasingly important legal issue: the legal framework for post-election audits. Based on the thesis that the requirements for the integrity of elections are not limited to formal aspects such as counting votes correctly, the question arises whether the competent courts may declare elections invalid due to manipulations during the election campaigns. The German Constitutional Court has considered that the validity of elections may be challenged by legal action if the voters had been coerced or pressured or if the pre-voting decision-making has been manipulated by similar means. The presentation will conclude that following this line, elections may be declared invalid in case of massive fake news or hate speech campaigns that intimidate or deceive the voters in a manner inconsistent with the legitimizing function of elections.
IS THERE SUCH A THING AS POLITICALLY CORRECT ANTI-SEMITISM? ‘ANTI-SIOMITISM’ AFTER OCTOBER 7TH.
Rafael Rodríguez Prieto.
Professor, Legal Theory and Political Philosophy
Universidad Pablo de Olavide, Sevilla
After the massacre of October 7, 2024, French writer Michel Houellebecq expected that there would be a wave of sympathy and solidarity towards the Jews, but the opposite happened. France recorded more than a thousand anti-Semitic acts since the terrorist attacks. In Spain, the impact of Hamas attacks on Israel went from a certain indifference, with some exceptions, to a wave of statements explicitly censuring Israel and maintaining an implicit understanding of Hamas terrorism, even by members of the Spanish government. This situation led to diplomatic tension between both governments, something anomalous in the European Union context, where similar tension only took place between the EU High Representative for Foreign Policy and the Israeli government. In the streets and in institutions, such as universities, demonstrations for and against Israel have been held throughout Europe. However, pro-Palestine demonstrations faced restrictions in some countries, such as France or UK. Waving a Palestinian flag may be illegal such as when intend to praise acts of terrorism. A campaign against Israel was also carried out in academic institutions. It was tied to BDS Movement -Boycott, Divestment and Sanctions.
The OSCE, in a practical guide to understand hate crimes in the framework of security needs of Jewish communities in Europe, stated threatening or attacking a person because of his or her real or perceived Jewish identity is an anti-Semitic act. In addition to this, threatening or attacking a person because of his or her Israeli identity could also constitute an anti-Semitic act. The anti-Semitic slogans and insults that go with these types of criminal offences can be considered evidence of anti-Semitism. One of the most chanted slogans at the pro-Palestinian demonstrations was “from the river to the sea, Palestine will be free”. This chant concretizes one of the ideological pillars of Hamas terrorism: the destruction of Israel.
The paper focusses on the development of the so-called “new anti-Semitism” and its development. The triangle between hate speech, political correctness, and cancel culture in this issue, especially in social networks, will be analyzed to provide a detailed framework for the ant-Semitism after October 7th. The hypothesis of this paper is that the strong development of the internet and the consolidation of a poststructuralist or populist belief, crystallized in the Woke Movement, has generated a mutation in the new anti-Semitism that we could be conceptualized as anti-Siiomitism; a politically correct anti-Semitism.
BETWEEN LANGUAGE AND SOCIO-POLITICS: A NEW APPROACH TO THE NOTION OF FIGLEAVES
Marek Uszyński
Jagiellonian University in Cracow
The basic medium of politics is language, and that relationship has been a source of great inspiration in the field of philosophy of language. There’s much research being done on the topic of language being used a political tool, especially regarding public figures and social norms. This has led to large advancements in the field of pragmatics in the ways of conveying meaning, that is controversial, unacceptable or in any other way infringing on social norms, without bearing the associated conversational costs.
This presentation concerns one such method of communication called figleaves and it proposes a change in the dominant approach to study on the topic, represented mainly by Jennifer Saul who’s done the most comprehensive research on the phenomenon. In her view, figleaves involve an addition of an utterance to a previous utterance that breaks social norms of linguistic conduct, primarily regarding the norm of racial equality, which simply prohibits being racist, to block the recipient from recognising the violation of said norm by the speaker. So, a figleaf is supposed to obscure the fact, that what a speaker just said was racist by making the audience believe the speaker isn’t racist and thus his or her utterance cannot be racist as well. An example of the simplest figleaf is an utterance: “I’m not racist, but…”.
That approach, however, is entirely focused on the problem of racist and to a lesser extent sexist figleaves exclusively in their socio-political aspect. It is a valid concern, based especially on the phenomenon of the shifting standards of acceptance of racist utterances, by which some racist speech is blocked from being regarded as such with figleaves, thus becoming acceptable without the speaker being deemed racist. On the other hand, that narrow view of the issue limits the research on this topic, I argue that figleaves should be regarded as a general phenomenon of speech not being tied to racism only. That issue is crucial because the racism-central approach focusing on social and political sides of the problem demands exclusion of the aspect of speaker’s intentionality, which the academic, objective view of racist utterances demands. While it serves its function in that important slice of the study of figleaves, it also excludes the perspective of the speaker as a competent user of language prioritising socio-political approach over purely linguistic matters thus narrowing our understanding of the phenomenon itself and excluding promising areas of research.
CENTRING DIGNITY TO REDRESS THE OVER-DETERMINATION OF IDENTITIES IN HATE SPEECH (LAW)
Jen Neller
Manchester Metropolitan University
In debates on whether hate speech should be regulated by law, and on how freedom of expression can be upheld alongside such law, it is widely assumed that the purpose of hate speech law is to protect minority groups from harm. However, my research into the ‘stirring up hatred’ offences of England and Wales undermines this premise. Discourse analysis of parliamentary debates during the passage of these offences and their amendments illuminated the biases and alternative agendas of this hate speech law. Firstly, concern for minorities did not prompt a legislative response until it converged with a concern for public order. Secondly, the ‘balancing’ of values was always weighted by preconceptions of who the law should protect and who it should protect them from, by the persistent myth of a ‘clash of civilisations’ and by attitudes of British exceptionalism and moral superiority. The ‘balance’ between freedom of expression and freedom from vilification was therefore always populated with ideas about identity.
This paper explores the possibility of using a relational concept of dignity as a lynchpin for challenging and moving away from the over-determination of identities in hate speech law. This works in two main ways. Firstly, dignity is conceptualised as a value that is not amenable to zero-sum ‘balancing’ and for which there is always already interest convergence – the promotion of dignity is always in everybody’s interest. Secondly, a focus on dignity shifts attention from the ontology of identity group membership (e.g. are they a ‘racial group’?) to how people are treated. Crucially, this enables power dynamics to be accounted for in assessments of which speech should be protected and which should be prohibited: dignity entails freedom of speech to challenge oppression and disadvantage (punching up) but is violated by speech that oppresses and reinscribes disadvantage (punching down).
