Hate Speech and Animals, by Josh Milburn

Here in the UK, as in many liberal democracies, there are laws against hate speech. The Public Order Act of 1986, for example, makes it a criminal offence to publish or distribute ‘written material which is threatening, abusive or insulting’, when intending ‘thereby to stir up racial hatred’ or ‘having regard to all the circumstances racial hatred is likely to be stirred up thereby’. Across many states, laws protect people from speech targeting their racial or ethnic origin; sexuality, sex, or gender; disability status; and so on.

No such law protects individuals targeted because they are members of a disfavoured species. Take, for example, the claims of those who campaign (or even litigate!) against the expansion of legal protections of animals: they will argue that animal suffering is inconsequential, or that even trivial human benefit justifies the violation of animals’ most basic interests. If speech like this was targeted at members of human groups – say, members of racial minorities – it would represent the worst excesses of hate speech, and would be, in many places, subject to criminal sanction. However, because it targets animals, it faces no criminal sanction. There is thus a discrepancy between the treatment of those who engage in racist hate speech and those who engage in (what we might want to call) speciesist hate speech.

With Alasdair Cochrane, I have explored what, if anything, might justify this discrepancy. Our paper on the subject, ‘Should we protect animals from hate speech?’, is now forthcoming in the Oxford Journal of Legal Studies. We explore a range of theoretical justifications for laws against hate speech, as well as range of ways that a line is drawn between those groups warranting protection from hate speech and those not. What we found was that, granting a few plausible assumptions about our relationships with animals, there is no good justification for this discrepancy. And what this means is that either (in principle) both racist and speciesist hate speech warrant legal censure, or (in principle) neither racist nor speciesist hate speech warrant legal censure.

Let’s take a look at some reasons we might want to reject that conclusion.

We might think that race and species are very different kinds of things, and so we should not generalise claims about racism and speciesism like this. Race and species certainly are different things, and racism and speciesism certainly do operate in different ways. And it is decidedly not our aim to equate the worth of members of racial minorities with the worth of animals – clumsy comparisons like this can do a great deal more harm than good, for members of racial minorities and for animals. We are instead interested in the narrow and specific question of what differences and similarities may exist between these categories for the purposes of hate speech law.

So-called ‘formal’ specifications can be used to differentiate between those groups warranting the protection of hate-speech law and those not. The thought is that while it is right to protect people from hate speech targeting their (say) race, it is not right to protect people from hate speech targeting their (say) profession. But – to summarise – these formal criteria are not useful for differentiating race and species. Race, unlike profession, is unchosen. But so is species. And race, unlike profession, is unchanging. But so, again, is species.

Let’s try a different approach. Surely, we might think, our reasons for banning hate speech apply to hate speech against humans, rather than ‘hate speech’ against animals? A recent and widely discussed case for banning hate speech comes from the philosopher Jeremy Waldron. He holds that the harm in hate speech consists in something objective: hate speech denies an individual’s equal status or civic ‘dignity’. This is harmful because it undermines the recognition of these individuals as equal members of the community.

It would be easy to say that this justification of hate-speech law shows why there is a difference between racist hate speech and ‘speciesist hate speech’. Members of racial minorities are members of our political community, while non-human animals are not, we might think. Consequently, members of racial minorities have a civic dignity that can be undermined, while nonhuman animals do not.

But we think that this response is too hasty. One of the great insights of the recent ‘political turn in animal ethics’ – the emergence of scholarly work on human/animal relationships using the language and resources of political theory – has been that animals are members of our political community. This, for example, is the one of the core arguments of  Zoopolis, by Sue Donaldson and Will Kymlicka. (Donaldson and Kymlicka are advocates of animal rights, but we don’t need to adopt such a strong conception of our duties towards animals to accept the central idea.) So, if animals are members of our political community, it seems like they do have something like a civic dignity (in Waldron’s sense) that could be undermined by hate speech.

There is an obvious response: Even if animals should be conceived as members of our political communities, they are not. No state or community (so might say a critic) actually recognises animals as possessing the civic dignity that states and communities do afford to (many or most) humans. But Waldron himself probably wouldn’t make this argument. ‘Societies do not become well-ordered by magic’, he says. ‘The expressive and disciplinary work of law may be necessary as an ingredient in the change of heart within its racist citizens that a well-ordered society presupposes’. This means that hate speech law doesn’t only kick in once the rights of minorities are recognised – it helps us on the path towards the society in which the rights of minorities are recognised. And if that logic works in the case of racist hate speech, perhaps it will work in the case of speciesist hate speech, too.

We aren’t necessarily committed to that conclusion, though, as we’re not necessarily committed to Waldron’s wider theory. Our conclusion is simply that there is no in-principle justification for the discrepancy between racist hate speech and speciesist hate speech, and this is a relatively theoretical one. It’s consistent with several possible courses of action. We thus hope that our position is not misunderstood. We are not arguing, for example, that anyone engaging in speciesist hate speech should go to prison. Indeed, we haven’t offered any clear account of what would even count as speciesist hate speech. But we do think that there are lots of interesting questions to ask in this area. What would count as speciesist hate speech? Should speciesist hate speech be banned in the future? Should speciesist hate speech be banned today?

We hope that we have shown that these (surprising, perhaps even bizarre-sounding) questions are worth asking. Perhaps debates about hate speech in moral, legal, and political discourse are yet another place where questions about animals have been absent for too long. As we start to take animals more and more seriously – in the academy, in law, in politics – we are going to find plenty of places where animals have been unjustifiably ignored, calling on us to transform our political practices in all sorts of surprising ways.