Brink, David. "Millian Principles, Freedom of Expression, and Hate Speech". Legal Theory, Vol.7, No.2 (2001): 119-157.

Brink, David. "Millian Principles, Freedom of Expression, and Hate Speech". Legal Theory, Vol.7, No.2 (2001): 119-157.

• Hate speech appropriately raises controversial issues and debates within society. Essentially debates around hate speech and appropriate responses towards it are so divisive because they force a separation of the egalitarian and libertarian trends within the broader liberal movement. Whereas generally civil rights has advanced both systems, through increased personal freedoms also equalizing society, hate speech requires either restricting fundamental personal freedoms to increase equality, or allowing some members of society to be attacked and belittled as a cost for broader personal freedoms (119).
• The author intends to address the questions and controversies raised by hate speech legislation by referencing Millian arguments as presented in On Liberty. This book should provide a substantial liberal defense of free speech from which the political morality of regulation can be evaluated, and serves as the background of modern laws like the First Amendment of the American constitution (120).
• Although an initial reading of Mill might indicate that his claim that "offense does not constitute harm" might be sufficient to justify libertarian interpretations of the issue, the underlying logic of this statement makes any such claim much more complex (120). Because free speech exists to promote discourse which could lead to innovation, the justification for allowing the silencing and belittling effects of hate speech is unclear, providing potential reasons for regulation (121). 
• Mill defines three potential reasons for intervention: paternalism, moralism, and the harm principle. Intervention is paternalistic if the state does it for the good of the citizen, it is moralistic if the state directs citizen actions as moral or immoral, and the harm principle is applied when the state intervenes to prevent a citizen from harming someone else. Mill believes that the only legitimate intervention is under the harm principle (121).
• For Mill 'harm' did not mean mere offense or inconvenience, it implied an action which violated the important interests of other citizens to which they have a right under his system of liberties (121).
• For Mill, free speech -- and by extension liberal freedoms in general -- are not valuable in themselves, but serve as means to accomplishing the goal of promoting society progress by prevent dogmatic adherence to ideas. He opposes censorship on four grounds: that the suppressed information might be true, might have a portion of truth, and even if false will challenge dominant beliefs thus preventing them from becoming dogma (122).
• Whereas the initial arguments against free speech depend only on the truth of the censor statement with a goal of increasing truth, the later arguments about the role of free speech in promoting discourse are a much strong defense. Free speech allows people to come to better conclusions and producing better work, making it valuable (123). Mill also believes that discourse is part of what makes us human, and is therefore important in achieving 'true' happiness (125).
• Mill provides a firm defense of liberty in his essays, by arguing that allowing for experimentation with different options and deliberation ends up resulting in a better population which is more capable of proper self-governance. However, this is only a defense of basic freedoms, which have a major effect on life decisions, not necessarily all actions. Furthermore, even these basic liberties are restricted by the harm principle (127).
• The legal framework for any kind of restriction on hate speech in America would be interference with a 'constitutional value', requiring that the legislation go under 'strict scrutiny' to determine whether it advances a compelling state interest in the least restrictive manner possible (127).
• This strict scrutiny form of review is in contrast to the standard 'rational basis review', for legislation not interfering with fundamental principles. This form of review only requires that the state be pursuing a legitimate interest in a reasonable manner (128).
• When determining levels of scrutiny, the Supreme Court general divides speech into 'content-neutral' restrictions and 'content-specific' restrictions. The content-specific restrictions, like hate speech laws, are subject to much higher levels of scrutiny, as they potentially close avenues of dialogue and discourse (128).
• The Supreme Court also makes a distinction between 'high-value' and 'low-value' speech. High-value is subject to high levels of scrutiny, whereas low-value speech is not. A definition of the two concepts is provided in the Champlinsky v. New Hampshire case:
• "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and the obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality" (129).
• The distinction made by the Supreme Court between high-value and low-value speech is justified along similar lines to Mill's defense of free speech in general. In other words, the Supreme Court respects speech not as a value unto itself but as a deliberative tool which provides societal welfare. Since the justification is the same, Millian reasoning can be used to look into the issue even without a broader framework of Supreme Court cases (130).
• This valuation of speech in terms of promoting deliberation allows for the justification of forbidding libelous statements. Although a false claim made in good faith can stimulate discussion and should be allowed, a knowingly false claim does not drive discourse towards truth, is not justified by societal progress, and can thus be restricted (130).
• In the United States the particular system of constitutional protections have made any national or state programs to regulate or ban hate speech extremely difficult to implement from a legal standpoint. Instead, the primary system of regulation is penalties for non-compliance by organizations, such as schools or businesses (132).
• Dr. Brink uses the hate speech code at Stanford University at the time of writing as an example of a limited regulation, which can then be judged according to Millian principles from page 133 to page 135: "Speech or other expression constitutes harassment by personal vilification if it: (a) is intended to insult or stigmatize an individual or a small number of individuals on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin; and (b) is addressed directly to the individual or individuals whom it insults or stigmatizes; and (c) makes use of insulting or “fighting” words or non-verbal symbols" (133).
• Mill accepts that in certain cases the use of language which belittles or silences opposing arguments or viewpoints, especially if those viewpoints are in the minority, is harmful to discourse and might therefore be restricted on those grounds (137).
• Looking at Mill's prohibition on selling oneself into slavery, the single exception to the inequity of paternalism, can provide insight into the importance of discourse in Mill's arguments. Mill prohibits this because it harms humanity in general by getting rid of an individual's capacity for free experimentation, thus damaging discourse as a whole. Presumably, other exceptions could also be made on the goal of increasing deliberative values in society (138).
• For the purposes of the argument advanced in this article, hate speech is restricted to epithets which stigmatize and insult groups in a way that silence debate. This is much narrower than statements reflecting bias or harmful stereotypes, which are hateful, but still encourage debate. This discriminatory speech can be considered high-value speech (139).
• Hate speech, as that narrow subcategory, can be considered 'fighting words' in the sense that it is not conducive to debate, and its use encourages only violence or stunned silence as an outcome. It also poisons trust or respect between the persons involved, further ruining the potential for discourse (140). 
• The negative effects of the environment of hatred and prejudice produced by the use of hate speech are not conducive to liberty or the expression of liberties. Therefore, the use of hate speech can be seen to harm not only the target but the community at large by spoiling the atmosphere of mutual respect and freedom of expression required for liberty (142).
• Some have argued that hate speech does ultimately have deliberative value, in that by raising issues of hatred, it stimulates discussions about tolerance and the proper responses to hate speech. However, the contribution of these arguments is debatable and it seems like deliberation would be better served by not having the original hate speech at all. If we do not consider hate speech to be conducive to discourse in this way, then it should not be considered high-value speech by the court system (142).
• Although the Supreme Court usually only designates speech as high-value or low-value, in rare cases such as commercial speech and advertising, an intermediate evaluation is given, requiring an intermediate scrutiny when the right to that speech is restricted. The author would suggest that even with this in mind, hate speech should likely be considered low-value (143).
• Although the author believes that hate speech could not reasonably be designated as high-value speech, the author also contests that even if it was designated as such, there would still be reason to regulate its use in a way that passes a review on the basis of strict scrutiny and the harm principle (143).
• Firstly, although offense does not constitute harm, there is evidence to suggest that harassment qualifying as hate speech could lead to effects similar to those criminal victimization. There is certainly similar claims to be made that on a consistent scale, such action could meet similar requirements for harm in tort law (144-145).
• The effects of hate speech on both the level of discourse within the community and the ability of the victimized individual in particular to express opinions in a deliberative manner, constitute harm to the fundamental interests of both the targeted group and the wider community by damaging the environment for discourse (146).
• The state has a compelling interest in preserving the integrity of the deliberative environment within its society in a way which allows for human progress, meaning that actions taken against the harmful effects of hate speech in the least intrusive way possible could satisfy strict scrutiny in the Supreme Court (146). 
• Some pragmatic concerns about the implementation of hate speech laws have been raised, namely that since intent is difficult to determine, the use of words in non-hateful contexts could become accidentally criminalized. The most common example being the result for the speech rights of African-Americans if the words "nigger" or "niggah" were outlawed (147).
• This is a valid theoretical concern, however the application of similar principles in other branches of law demonstrates a strong ability by court systems to rule out cases based on common sense and apply the law appropriately. Since intra-group use does not have the intent to vilify, it would presumably not qualify as hate speech (148).
• Moreover, the focus on hate speech rather than discriminatory speech in general has largely solved these problems, by focusing on a subcategory of discriminatory speech which is easily identifiable and much more likely to result in the issues and harms of concern to the state (148).
• The Supreme Court's opinion of issues of free speech through case law is discussed using the case R.A.V. v. St. Paul, in which the court reviewed the legality of municipal hate speech laws in the city of St. Paul, Minnesota from page 149 to page 153.
• Limited regulation of hate speech can be justified to both Mill and the Supreme Court on the basis of its effect on deliberative activity. Because it wounds and silences rather than provokes debate, hate speech does not further discourse which Mill believes to be the goal of free speech, this same properly also designates it as not high-value speech for the purposes of legal scrutiny. The emotional harm and the disassociation within community caused by hate speech represent real harms to be considered under the harm principle, and also constitute a compelling state interest sufficient for regulation (153).
• A summary of the arguments made in the document is available from page 153 to page 157.
• The author recommends that the corollaries between the purpose of speech subscribed to by Mill and that of the Supreme Court lead to potential opportunities for using the expanse of Millian theory as a useful tool to reflect on justifications of laws concerning free speech and the First Amendment (157).