From Sisyphus’s Dilemma to Sisyphus’s Duty? A Meditation on the Regulation of Hate Propaganda in Relation to Hate Crimes and Genocide
Article [Accepted Manuscript]
Publisher(s)McGill Law Journal
The author examines central legal and philosophical issues pertaining to the regulation of hate speech. In particular, he evaluates the competing perspectives of the "causationist" approach, which requires a direct causal link between the expression it purports to regulate and the harm it allegedly causes, and the "correlationist" approach, which would regulate hate expression based on a relational correlation between the expression and the harm. In contrast, the correlationist approach adopts a preventive logic that seeks to structure attitudes by enforcing positive norms. After examining the theoretical underpinnings of these views, and reviewing their legal and philosophical pitfalls - particulary in their extreme forms - the author ultimately favours the correlationnist approach to hate speech regulation. Civil society and a democratic tradition will prevent this type of regulation from leading down a slippery slope ta state censorship. To avoid undue limitations to freedom of expression, however, only extreme hate expression should be regulated, that is, abusive expression, which is distinct from offensive expression in that it targets persons rather than ideas. There is no optimal way to balance equality and freedom of expression, nor to address the challenges that the enforcement of hate speech regulation entails. Analogizing with the myth of Sisyphus, the author refers to these challenges as the dilemma of the "Sisyphus state", concluding that this dilemma becomes a duty to regulate against abusive forms of expression, because a constitutional democracy cannot tolerate radical denials of the humanity of some its citizens.
GAUDREAULT-DESBIENS Jean-François, « From Sisyphus’s Dilemma to Sisyphus’s Duty? A Meditation on the Regulation of Hate Propaganda in Relation to Hate Crimes and Genocide », (2001) 46, McGill Law Journal, 1117-1137.