When the Law Takes Sides: Autonomously Weighing Reasons for Expression

Abstract

Law-making requires the legislator to take sides. This encroaches upon individual autonomy. As a result, the law must tread carefully while regulating expression. This includes hate speech. Despite this, the United States stands alone in its expansive tolerance of hate speech. By examining Scanlonian autonomy and Razian authority, this essay argues that America got it right- proscribing hate speech impermissibly erodes autonomy. Laws that prohibit expressive harm, when limited in scope to harm that targets protected classes like race, presume an answer to a normative debate where that debate is the reason the expression is proscribed. As a consequence, the law interferes with the process of internalization by excluding first-order reasons for action from deliberation.