Stigma, State Expressions and the Law : Implications of Freedom of Speech

This book demonstrates the difficulties the law is likely to encounter in regulating the expressive activities of the state, particularly with regard to the stigmatization of vulnerable groups and minorities. Freedom of speech is indispensable to a democratic society, enabling it to operate with a healthy level of debate and discussion. Historically, legal scholars have underappreciated the power of stigmatization, instead focusing on anti-discrimination law, and the implicit assumption that the state is permitted to communicate freely with little fear of legal consequences. Whilst integral to a democratic society, the freedom of a state to express itself can however also be corrosive, allowing influential figures and organizations the possibility to stigmatize vulnerable groups within society. The book takes this idea and, uniquely weaving legal analysis with extant psychological and sociological research, shows that current legal approaches to stigmatization are limited. Starting with a deep insight into what constitutes state expressions and how they can become stigmatizing, the book then goes on to look into the capacity the law currently has to limit these expressions and asks even if it could, should it? This fascinating study of an increasingly topical subject will be of interest to any legal scholar working in the field of freedom of expression and discrimination law. Cover Half Title Title Page Copyright Page Dedication Table of Contents Introduction 1 A picture says more than a thousand words, but a presidential tweet says much more still 2 Key issues that will be raised in this book 3 Some comments on the scope of this book Bibliography 1. What are state expressions and how can they be stigmatizing? 1 Introduction Part 1: Expression as a function of the state – comparison to other functions 1 Public statements as a mode of operation for states – the art of governance 2 Nodality as the least intrusive type of state tool 3 Nodality instruments – state activities that can bring about stigmatization 4 Nodality – an instrument that ‘does not constrain individuals’ – a position that does not take into account the serious psychological effects of stigmatization? 5 Control of nodal governance – a weak spot in terms of individual protection? 6 State expressions – a constraint free way of using authority? 7 State expressions are becoming more important with the growth of the ‘information society’ Part 2: Illustrative example of state expressions 1 Statements made to further important aims of the state (‘functional stigmatization’) 2 Security issues – stigmatization in the age of the ‘war on terror’ 3 Statements made concerning behaviour considered anti-social or dangerous, e.g. drink driving (‘fair criticism’) 4 Statements made for political purposes 3 Conclusion Bibliography 2. Defining stigma and its potential harm 1 Introduction 2 Stigmatization – an age old concept that came of age in the twentieth century 3 The study of stigmatization post-Goffman 4 Stigma as an intra and inter-personal experience 5 Stigmatization from a sociological perspective 6 Differentiating stigmatization from similar concepts 7 The main negative consequences that can be produced from stigmatization 7 Conclusion Bibliography 3. Developing a normative approach towards the use of stigmatizing state expressions 1 Introduction 2 Stigmatization as a force capable of harming individual self-respect 3 Rawls – self-respect as the primary social good 4 Sen, Nussbaum and self-respect in terms of capability 5 The relationship between self-respect and self-esteem (harmed by stigma) 6 The duties of a society to foster self-respect - the concept of Rawlsian neutrality and the difficulties of distribution of self-respect 7 Harming self-esteem with stigmatizing expressions – the relevance for self-respect 8 A positive or negative duty towards self-esteem? 9 The importance of Rawls’ lexical priority 10 ‘Functional stigmatization’ 11 Harming self-esteem with public statements based on inaccurate information 12 Harming the self-esteem of groups considered to be undertaking unacceptable activities (i.e. fair criticism) 13 Statements or expressions made for political reasons 14 Conclusion Bibliography 4. Stigmatizing state expression as hate speech 1 Introduction 2 Criminal law is only suitable for preventing extreme expressions 3 The libertarian approach as exemplified by the American First Amendment 4 The pragmatic approach 5 The dignity centred approach’ as exemplified by Germany 7 Using the criminal law against the state 8 The immunity of political figures linked to the state 9 Conclusion Bibliography 5. The importance of the lack of binding effects produced by SSEs 1 Introduction Part 1: Anti-discrimination law and SSEs 2 Discrimination and stigmatization are common bed fellows 3 The ECHR and its anti-discrimination directives 4 The EU and its anti-discrimination initiatives 5 A third anti-discrimination approach described by the CJEU in Feryn? Part II: Administrative law 6 The concept and need of administrative law 7 Most systems of administrative law are unlikely to recognize expressive acts as administrative acts Conclusion Bibliography 6. Stigmatizing state expressions – a threat to privacy? 1 Introduction 2 Varying concepts of privacy and their relationship with SSEs 3 Information privacy approaches and SSE 4 The ECHR and informational privacy attacks against individuals 5 Legal approaches related to wide concepts of privacy – attacks on groups Conclusion Bibliography 7. Carte blanche to stigmatize or a pragmatic reality in a liberal democracy? 1 Introduction 2 The expressive freedom of the state can exist in a de jure or de facto sense 3 An impossible balance – the benefits and harms of constraining state expression 4 Alternative forms of control to binding law 5 Control over spending on expressive activities 6 Ethical codes, codes of professional conduct and the democratic process Conclusion Bibliography Author’s note Index