Abstract

There is much in Weinstein’s article to contemplate, but I shall limit myself to making the following four main points. First, I believe that debates concerning the normative standing of hate speech law are always improved by heeding the internal variety of such law, and although I can see something of that same care in Weinstein’s article, such as when he distinguishes between different forms of hate speech law based on relative detriment to the legitimacy of so-called downstream laws, in some instances this care is lacking. Second, Weinstein plays up the importance of collective authorization or democratic legitimacy of downstream laws vis-à-vis “(a) the obligation of those restrained by the speech restriction to obey a downstream antidiscrimination law; and (b) the morality of enforcing the downstream measure against those whose participatory rights have been impaired by the upstream speech restriction.” These may be important aspects of what it means to detract from the legitimacy of downstream laws, but they do not exhaust the relevant aspects. Third, I think that Weinstein’s article ignores some important nuances in what I have argued about hate speech laws and political legitimacy, and ignores something that might be true of the relationship between political and democratic legitimacy, namely, it might be that political legitimacy takes lexical priority over and, therefore, cannot be traded off against, the collective authorization or democratic legitimacy of downstream laws. Finally, I believe that in describing my use of the precautionary principle as “plainly indefensible” Weinstein has done justice neither to the raw plausibility of that principle nor to how I applied it to the special silencing effects of hate speech.