Jurisprudential foundations for anti-vilification laws: the relevance of speech act and Foucauldian theory

Do the reasons that may justify restricting freedom of expression when a hate speech act is involved apply regardless of the particular race, religion, sexual orientation or other identity category that the speech act targets? In this article this question is answered by applying speech act theory and Foucauldian discourse analysis to two instances of hate speech: vilification on the grounds of race and sexuality. This article does not demonstrate that anti-vilification legislation targeting hate speech against such minorities as lesbians and gay men or Aboriginal people is justifiable, even if it assists understanding why it may be. But it does conclude that hate speech laws are unjustifiable if they outlaw vilification on such grounds as heterosexuality or Anglo-Australian identity. The argument is that vilification on these grounds cannot be understood as producing the kinds of harm that may justify limiting freedom of expression.