Proposals to ban hate speech are sometimes met with the objection that therestrictions on free speech that they envisage will undermine the legitimacyof the political system that imposes them. I have defended the idea of suchrestrictions elsewhere, and in this chapter I consider whether this worryabout legitimacy constitutes a serious objection.

There are a number of arguments in the literature that link the protection offree expression to the flourishing of self-government in a democracy. Somesay little more than that, though they say it sonorously and at greatlength. In a few of these arguments, however, the position is advancedbeyond a general concern for the democratic process. It is sometimes saidthat a free and unrestricted public discourse is a sine quanon for political legitimacy in a democracy. Robert Post makesthis argument. Some sharpen the point yet further, arguing that thepolitical legitimacy of certain specific legal provisions and institutionalarrangements may be imperiled by the enactment and enforcement of hatespeech laws.

DWORKIN ON LEGITIMACY

The most powerful argument of this kind is presented by Ronald Dworkin, in a “Foreword” he contributed to a large, recent, and valuable volume entitled Extreme Speech and Democracy, edited by James Weinstein and Ivan Hare. According to Professor Dworkin, freedom for hate speech or group defamation is the price we pay for enforcing the laws that the haters and defamers oppose (for example, laws forbidding discrimination). Here is how the argument goes.