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Speech and HarmControversies Over Free Speech$
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Ishani Maitra and Mary Kate McGowan

Print publication date: 2012

Print ISBN-13: 9780199236282

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199236282.001.0001

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‘Speaking Back’: The Likely Fate of Hate Speech Policy in the United States and Australia 1

‘Speaking Back’: The Likely Fate of Hate Speech Policy in the United States and Australia 1

(p.50) ‘Speaking Back’: The Likely Fate of Hate Speech Policy in the United States and Australia1
Speech and Harm

Katharine Gelber

Oxford University Press

A central idea within free speech arguments is that the most appropriate response to speech with which one disagrees, or which one finds intolerable, is to speak back. Some scholars have argued there may even be a basis for governmental or state support to assist some in speaking. This chapter develops this argument in relation to hate speech, arguing that because and to the extent to which hate speech may prevent its targets from speaking back, institutional, educational, and material support ought to be provided to enable the targets of hate speech to ‘speak back’. This would enable them both to contradict the messages contained within the hate speech and to counteract the effects of that speech on their ability to respond. The policy thus aims to ameliorate the potential effects of hate speech, and also to preserve and enhance speech opportunities. This chapter discusses the likely fortunes of a ‘speaking back’ policy in the United States and Australia; two jurisdictions with widely variant institutional mechanisms for the protection of free speech. It concludes that the speaking back policy is conceptually and practically useful in combating hate speech, and also potentially robust in differing constitutional environments.

Keywords:   speaking back, hate speech, counter-speech, capabilities theory, Nussbaum, Australia, First Amendment, policy, free speech, vilification

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