When we speak, we “do things with words,” and often we do things with words to people: advise them, marry them, warn them and more, as J.L. Austin observed.

What I want to focus on here is hate speech, a category absent from Austin’s otherwise generous catalogues. But his insight that saying is doing applies to hate speech, as much as to anything else.

When hate speech is minimized, or psychologized, shrunk down to expression of unpopular ideas, or injury of sensitive feelings, it is worth recalling that “the harm in hate speech” involves its force as a speech act: it is in large part “performative,” as Jeremy Waldron has recently agreed.

What is done with words can depend on patterns of authority. An Alabama slave law said, in 1861, that slaves are people and things: as “rational human beings, they are capable of committing crimes; and in reference to acts which are crimes, are regarded as persons,” but “because they are slaves, they are incapable of performing civil acts, and, in reference to all such, they are things, not persons.”

The law turned people into property that could be bought and sold, like things, and sent to jail, like rational human beings. The harm in slave law depended, in part, on its authority. This illustrates Catharine MacKinnon’s observation that:

“Together with all its material supports, authoritatively saying someone is inferior is largely how structures of status and differential treatment are demarcated and actualized. Words and images are how people are placed in hierarchies, how social stratification is made to seem inevitable and right, how feelings of inferiority and superiority are engendered, and how indifference to violence against those on the bottom is rationalized and normalized.”

Certain authoritative sayings can subordinate social groups, placing people in hierarchies, depriving them of powers and rights, and legitimating certain treatment of them. Such harms are achieved, in part, through the authority of the saying.

If a law could subordinate by “authoritatively saying someone is inferior,” could hate speech ever do likewise? Hate speech often says that “someone is inferior,” whether authoritatively or not. One form of hate speech is assaultive, its addressee being the target of hatred. These are “words that wound,” as Richard Delgado puts it. They convey, according to Mari Matsuda, a “message of inferiority … directed against a historically oppressed group,” that is “persecutory, hateful and degrading.”

Another form of hate speech is propaganda, its addressee being the recruit to hatred. Such propaganda attempts to “justify or promote racial hatred and discrimination,” as the 1965 UN Convention puts it, based on “ideas or theories of superiority of one race or group of persons of one colour or ethnic origin”; to incite “racial discrimination” or ‘acts of violence … against any race or group of persons of another colour or ethnic origin.”

It is worth observing that the Alabama slave law meets both those descriptions of hate speech, though it would not be normally be described as assaultive or propagandizing. Yet the slave law matches Matsuda’s description: it conveyed a message of inferiority, directed against a historically oppressed group, that was persecutory, hateful and degrading – and it would be an understatement to say these were “words that wound.” It matches the UN description: the slave law was based on an ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, and attempted to justify and promote racial discrimination.

The question here is not whether a law could be hate speech, however. It is whether hate speech could be like a law: whether hate speech could have authority, and if so, of what kind, and from what source.

Few would deny that hate speech has had authority in the past, even if the authority of hate speech and slave law are not the same. The UN Convention was drafted in recognition of the danger pose by the authority of some hate speech. Julius Streicher advocated a “Holy Hate” in Der Sturmer over many years, and published an essay with that title in 1943:

“If we do not oppose the Jews with the entire energy of our people, we are lost. But if we can use the full force of our soul that has been released by the National Socialist revolution, we need not fear the future. The devilish hatred of the Jews plunged the world into war, need and misery. Our holy hate will bring us victory and save all of mankind.”

The harm in Streicher’s hate speech was held a to be capital offence, at the Nuremberg trials, and the Convention’s commitments were informed by the gravity of that harm. Streicher published a series of works directed to, and sometimes authored by, children. He loaned his state-sponsored megaphone to a child’s school “composition” in 1935. The child wrote:

“The Jews are our misfortune. Regrettably, there are still many people today who say: Even the Jews are creatures of God. Therefore you must respect them. But we say: Vermin are animals too, but we exterminate them just the same. The Jew is a mongrel. He has hereditary tendencies from Aryans, Asiatics, Negroes, and from the Mongolians. Evil always preponderates in the case of a mongrel.”

Streicher urged young readers to mistrust their Jewish neighbours, in a rhyming title of 1935-36:

Trau keinem Fuchs auf gruener HeidUnd keinem Jud bei seinem Eid

(“Don’t trust a fox in a green meadow or the word of a Jew.”) The booklet went to seven editions, with a hundred thousand copies in circulation.

^{From the front page of Der Sturmer, May 1934 (Credit: PHAS / UIG via Getty Images)}

A 1934 issue of Der Sturmer published a drawing of Jews extracting blood from childish corpses, one of a series which propagated the “blood libel” that Christian children were on-going targets of ritual murder. In Der Giftpilz(1938), the title story depicts a mother and son looking for mushrooms in the forest: “Just as it is often hard to tell a toadstool from an edible mushroom, so too it is often very hard to recognize the Jew as a swindler and a criminal.”

In other stories, Hans and Else are offered sweets by an ominous hooked-nosed stranger, and virtuous Inge is assaulted by a leering Jewish doctor. Streicher compared “the Jew” to a mongrel dog, a supplanting cuckoo, a hyena, a deceptive chameleon, a blood-sucking bedbug, a poisonous snake, a tapeworm and a deadly bacterium.

Authorizing hate speech

I begin this sketch with a historic reminder, to recall the point of thinking about the authority of hate speech. I focus on Streicher’s publications because they seem a clear case of hate speech that had, at one time, authority. There is a more cowardly reason: their historic role, and the sheer passing of time, have made them an object of scholarship, and somehow easier to discuss than contemporary manifestations of hate speech.

Der Sturmer was an exercise of epistemic authority, since it had local credibility, even if it lacked expertise. Its role was, in the first instance, epistemic: its masthead proclaimed its dedication to “the fight for truth.” By contrast, the Alabama slave law was, mostly, an exercise of practical authority. Yet hate propaganda is practical too, which is no surprise. Authority for belief may be practical, as Joseph Raz observes. A doctor has an ability to prescribe, based on his epistemic authority, which includes expertise and credibility. We can add that a quackdoctor’s ability to prescribe is likewise based on his epistemic authority, in this case his credibility alone.

This has implications for hate speech, whose force can depend on a comparable relationship between practical and epistemic authority. Der Sturmer tells its readers what to believe, and what to do: “the Jew is untrustworthy” was diagnosis and prescription – “don’t trust the Jew!”

While we are tracking similarities, as Raz advised, we can note that practical and epistemic authority can have the same source. Practical and epistemic authority, construed as credibility, may be acquired through the acts or omissions of other parties, from those who have authority, and from those who lack it. Here is where accommodation comes in.

To illustrate, let me adapt a series of vignettes from Ishani Maitra. Suppose a teacher decrees a pupil to be “in charge” of the class, or to be “the expert” of the class; or simply turns a blind eye to her bossy or know-it-all activities. In such a case the pupil’s authority – practical or epistemic – is “derived,” Maitra says, from the acts or omissions of someone who has special authority. Or suppose a pupil takes herself to be “in charge,” or to be “the expert,” and other pupils go along with it, in the absence of a teacher. In such a case the pupil’s authority – practical or epistemic – is “licensed” by the acts or omissions of someone who lacks special authority.

Note, however, in these examples that acquiring the role of “the expert” is not enough, of course, for being an expert. The examples of epistemic authority are about credibility, not expertise. By contrast, being put “in charge” may be enough for being in charge. Notwithstanding these differences, for the student to be “the expert” or to be “in charge” is, I take it, for her to acquire authority, by means of the acts or omissions of others, to perform speech acts she would not otherwise have been able to perform.

Maitra draws conclusions for hate speech. Suppose a black family wakes to find a burning cross on their lawn, and the culprits are unknown. Suppose the community leaders fail to denounce this action, and fail to express sympathy for the family. The cross-burning acquires, she says, a “derived” practical authority. Just as the teacher confers derived authority on the bossy pupil, when she turns a blind eye, so these leaders, through their omissions, confer derived authority on the burners of the cross.

Or suppose, on a New Jersey subway, an Arab woman is addressed by an older white man with a string of abuse: “F***in’ terrorist, go home! We don’t need your kind here!” Other passengers don’t intervene. In this case, there is no role-based institutional authority in the picture, as there was the teacher, or the community leaders. Yet the racist speaker – like the bossy pupil when her peers do not object – acquires, to a certain degree, a “licensed” practical authority, in virtue of the passengers’ omissions.

Maitra’s examples, and my adaptations, bring out a contrast between derived or licensed authority, which accrues to a speaker from the contributions of authoritative or non-authoritative hearers, respectively; and they illustrate a role for omissions in supplying authority, both practical and epistemic.

The teacher’s explicit decree, endowing the pupil with authority, would be an old-fashioned Austinian performative. Austin had much to say about the conferral and removal of authority through more or less ceremonial speech acts: performances of marriage, knighting and coronation confer it, performances of firing and condemning to penal servitude remove it. By such explicit decrees a racist legal system could gain practical authority, or a racist propaganda machine could gain epistemic authority.

But what of authority acquired by omission, for example, of the teacher or the students, of the city council or the fellow passengers. Do these “eloquent silences” in informal contexts amount to speech acts that authorize certain speakers? If the silences were to express consent, that would be a familiar mode of authorizing a speaker.

For many hearers of hate speech, that will more or less fit the case. For many recruits, hate speech will receive an enthusiastic welcome, with its flattering incentives to join the tribe of superiors, the tribe of us-against-them, the tribe of the knowing initiates, the tribe of the sainted martyrs. Propagandistic hate speech aggrandizes the hearer, often, as well as the speaker. Propaganda’s message of their “inferiority” described by Matsuda and the 1965 UN Convention is also a message of “our” superiority, the superiority of a “we” that includes both speaker and hearer. Such hearers quickly become fellow speakers, whose response is no longer silence, but a thumbs-up “Like,” an instant “Share,” expanding exponentially the initial weight of authority.

Hate speech, for some, will not be an alien imposition like the law, but more like pornography, an ecstasy of loathing eagerly sought out, a Trojan Horse dragged willingly through the doorways of the mind. Such hearers ardently crown hate speech with authority, avidly form part of its jurisdiction, and zealously seek to increase it.

The examples just considered, however, are not like this. The omissions described do not express consent, nor need they be read as speech acts at all. The teacher and the civic leaders turn a blind eye, the passengers listen to a racist tirade in uncertain, or appalled, silence. Nevertheless, authority accrues to the speaker, to some degree. How? Not, I think, because silence counts as, or appears to be, consent, in such a context; but because authority is accrued simply through the omission. The omission, whatever its motive, is a failure to block what is presupposed. The authority, in the omissive examples, is gained through accommodation.

This would be an instance of a more general phenomenon: within limits, a speaker tends to get what they presuppose, if nobody stops them. Richmond Thomason illustrates accommodation with a comparable example, in the context of indecision about dinner plans:

“Someone takes charge, asks for suggestions about restaurants, decides on one, and asks someone to get two cabs while she calls to make reservations. When no one objects to this arrangement, she became the group leader, and obtained a certain authority. She did this by acting as if she had the authority.”

The leader “obtained” a certain authority, by acting as if she had it: she presupposed her authority, and when nobody blocked that presupposition, she obtained authority through accommodation. The social world, unlike the inanimate world, can be accommodating:

“Acting as if we don’t have a flat tire won’t repair the flat; acting as if we know the way to our destination won’t get us there. Unless we believe in magic, the inanimate world is not accommodating. But people can be accommodating, and in fact there are many social situations in which the best way to get what we want is to act as if we already had it.”

The social world can sometimes be accommodating, especially when helped along by background expectations. There is a familiar connection between social hierarchy, and the presuppositions that speakers introduce, and that hearers accommodate. One speaker might bring “a sense of entitlement,” another is “to the manner born.” Getting “what we want” by acting “as if we already had it” is a fair description of much that is good and bad in social life, from the building of friendship and intimacy, to the building of privilege. It is also, I suggest, a fair description of the building of authority, in some circumstances, for hate speech.

The authority of hate speech

The suggestion that hate speech could have authority may seem absurd for two reasons. The first concerns the nature of authority. You might think that the slave law itself had no genuine practical authority. The slave law falsely claimed authority, and was falsely taken to have it. The law possessed merely “effective” or de factoauthority, so that slaves were never really things to be bought and sold. The law lacked legitimacy, so it lacked authority, in the proper de jure sense of that term.

Extending this thought, Der Sturmer likewise had no genuine epistemic authority, though it purported to have it. In reality, it likewise possessed merely “effective” or de facto epistemic authority, if we may describe epistemic authority in such terms.

We can give this response its due. In some ultimate sense, the law lacked authority, and so did Der Sturmer, but that is not the sense we are after. With regard to epistemic authority, we are focusing on credibility, which Der Sturmer possessed, despite its lack of knowledge or expertise; and as for practical authority, we are not setting our sights very high. We are not pursuing, here, an ideal theory of authority, investigating what is required for ultimate legitimacy. If we regard authority as a noble source of distinctive reasons, hate speech will never fit the bill. If we place authority on a pedestal, and hate speech in the gutter, our question – “Can hate speech have authority?” – will get an easy, and negative, answer.

But that would be too hasty. As Charles Mills has argued, ideal theories can obscure injustice; and this applies to authority, as to much else. Authority is often “a feature of roles embedded in practices,” in Scott Hershovitz’s phrase, and those practices will not always be good ones. Our topic is not idealized authority, but something closer to home: structures of social authority, relative to practices, which enable the enactment of norms and hierarchies that are socially real – whether or not they exist in Plato’s heaven, or the better neighbourhoods of Earth.

The second reason concerns the nature of hate speech. You might allow that a slave law could have authority, but hate speech could not. The hate speaker lacks the requisite role or stature. The hate speaker is in this sense like Austin’s “low type” in his story about the naming of a ship. The authorized official waits, champagne in hand, ready to name the ship “The Queen Elizabeth.” All of a sudden, a low type rushes up, grabs the bottle, and smashes it, shouting “I hereby name this ship ‘The Generalissimo Stalin’.” We would all agree, said Austin, that it would be “an infernal shame” – and that the low type had not named the ship.

The hate speaker may seem a low type, if anyone does, when we bear in mind the anonymous graffitist who sprays on a New Jersey wall, “Muslims and 9/11! Don’t serve them, don’t speak to them, and don’t let them in!”; or the anonymous Twitter user who sends rape threats to classicist Mary Beard, and splices pornography onto images of her face; or the sorry character who writes a poisonous letter to baseball star Hank Aaron:

“Dear N____ Henry, You are [not] going to break this record [for home runs] established by the great Babe Ruth if you can help it […] Whites are far more superior than jungle bunnies […] My gun is watching your every black move.”

It is routine to assume that hate speakers lack authority. Waldron’s study, for all its sympathy to hate speech legislation, casts the hate speaker as a detested lone wolf, an exception to the rule of a happy and shared egalitarian commitment. Judith Butler ridicules the idea that hate speech could have authority, suggesting it attributes a quasi-divine power to the hate speaker. It is tempting to regard hate speakers as embittered, marginal figures, who reach for the “words that wound,” precisely because they lack authority. On this picture, a comparison between hate speech and racist law could never be apt.

We can give this response its due as well. There are stark limits to the comparison. The authority of hate speech is unlike the law in kind and degree, and it would be grotesque to suggest otherwise. We may consider parallels with hate speech without questioning the unique gravity of slave law. Moreover, unlike the law, certain features of hate speech may allow it to wound even without authority. This would not render my inquiry otiose, if authority would aggravate its wounds.

Hate speech might wound without authority, because other factors contribute to its force: the oppressive history of slurs, and the power of words to invoke and retrieve that history; the “truthiness” of danger and conspiracy claims, got from a seeming-truth of the content, not the seeming-trustworthiness of the speaker; the attention-grabbing, evidence-resisting power of lurid rumours, whatever their source; the word-transcending power of graphic images to shape attitudes; the ambiguity of unquantified generics, reifying danger or inferiority, tarring too many with a too sweeping brush.

Hate speech may work to alter perception itself, so that we literally come to see our fellows as dehumanized or animal-like, literally hear them as shifty, contemptible, or dangerous. Unlike the law, the harm in hate speech dwells partly in factors independent of its authority.

Hate speech is unlike the law in a further respect. Hate speech is about hate, and this makes it gut-wrenchingly different to the cool discriminatory speech of a legal enactment. It involves the feelings of speaker, and of hearer. It expresses a speaker’s emotions and attitudes, so vividly indeed that it may seem that this is all it does. Besides expressing feelings, hate speech provokes feelings. It invites an emotional response, as well as a cognitive and practical one. It tells someone what to feel, as well as what to believe, and what to do. Its effects – its perlocutionary goals, in Austin’s terms – include hatred, for some hearers, pain and fear for others.

Hate speech harnesses horror and disgust in ways that go beyond my topic here, and beyond simple hierarchy. How the harnessing of emotion can help enact inequality is a large question, and I shall not offer adequate answers. Such problems are independent of authority: but authority would surely exacerbate them. A vicious slur, a “truthy” rumour, a misleading generic, a hate-filled tirade – these will be all the more wounding. Whatever else “the harm in hate speech,” it will be the worse when hate speech has authority.

The weakness of hate speech

There is something artificial about setting aside the venom in hate speech, and asking about its authority, neglecting the material persecution and physical violence targeted on actual human beings as its result. Hate speech has dimensions I have barely touched upon. Nevertheless, the authority of hate speech matters, since authority makes a difference to what hate speech can do with words.

There are wider implications. When hate speech has authority, it can be harder to answer with “more speech.” Hate speech can acquire strength: its force can go further than the expression of unpleasant ideas, or the wounding of sensitive feelings, to which an adequate response might be a counter-argument, or a deaf ear, or a thick skin.

But hate speech can also lose strength. On this picture, the force of hate speech is partly hostage to the responses of hearers and bystanders, and this leaves a point of vulnerability. Hate speech can be hard to answer, but an active and fortunate hearer might manage to defuse it without arguing – by blocking its authority, and thus removing a condition of its success. The unnoticed strength of hate speech, which has been our topic, therefore goes hand in hand with an unnoticed weakness.

If authority can emerge through accommodation, there may be implications for responsibility. Does a bystander, silent in the presence of a racist tirade, confer ‘licensed’ authority on its speaker? That is Maitra’s case of the subway abuser, who gains default authority through the passivity of the other passengers. Does a law that merely tolerates hate speech nonetheless confer “derived” authority on it? That would be like Maitra’s case of the burning cross, which gains default authority through the passivity of community leaders.

If the answers to these hard questions are affirmative, the harm in hate speech may be the doing, not only of the low types we have considered, but also of an innocent law, and of innocent others who merely stand by.

Rae Langton is Knightbridge Professor of Philosophy at the University of Cambridge. She is the author of Sexual Solipsism: Philosophical Essays on Pornography and Objectification and Kantian Humility: Our Ignorance of Things in Themselves. This piece is an edited version of an article forthcoming in Oxford Studies in Philosophy of Law.