The question of when speech can be permissible suppressed to prevent harm is of central importance. In a recent paper, Jeffrey Howard defends a novel framework for answering this question. Howard’s approach breaks new ground in debates about free speech by recasting disagreements about limitations on free speech as disagreements about when enforcement of violations of the duty to refrain from speech that incites clear violations of others’ moral rights is permissible. In this paper, we argue that Howard’s framework has broader application than it might seem. Building on recent literature on just war theory, we develop and assess two different views on which goods and bads to include in hate speech proportionality assessments. The Permissive View, which includes all goods and bads, and the restrictive rights-based view, which only includes protection and violations of rights in proportionality assessments. We present the most important advantages and disadvantages of both views and discuss how the respective views affect the plausibility of the proportionality framework, focusing on key cases. We defend the plausibility of the Permissive View. We find that the different views have theoretical implications for further development of the proportionality framework in the context of free speech and hate speech. Ultimately, the findings also have policy implications as hate speech legislation will be the most appropriate measure against hate speech in a concrete case depending on whether we take into account all goods and bads or only violations and protection of rights.
Key words: Hate speech; harmful speech; freedom of expression; proportionality; necessity; counter speech.