In his second lecture Waldron makes two points that I wish to respond to here, the first concerns the relationship between hate and publicity and the second the relation between hate speech and hate crime. The connection between hate and publicity is powerfully made in the image of racist wolves calling out to each other over night. The main point Waldron brings up with regard to the question of the regulation of hate speech concerns the fact that such speech should not be seen as primarily private in nature but as public. The sense in which he presents it as public is in terms of its possessing an intention to summon up a certain kind of environment characterised by its own notion of a public good.
The way in which this idea makes sense is in terms of the point of such speech being to suggest, as Waldron puts it at one point, that the struggles of the past (including such things as segregation, the persecution of minority groups and slavery) are not over and can and should be re-opened. Along with this is the creation of points of solidarity between those who express such hate speech to encourage each to "come out" as haters and thereby to consolidate and confirm each other in this identity, an identity that forms part of the nucleus of the type of society the bearers of such attitudes would like to create.
This point about the inherent publicity of such hate speech is, in general, very well-made by Waldron and points to a further characteristic of the need to think publicity as a key value in political society. Previous postings discussed both the positive and negative accounts of publicity Kant provides in Perpetual Peace and what Waldron's discussion brings out well is the understanding that it is not just with regard to values that have a positive valence that such criteria have significance. The understanding of the action of hate speech as a public action that intends to orient general society in the direction of its aims is a sound one and explicates well why members of minority groups feel threat from the presence of such "speech" (in the circulation of writings, posters, marches and symbols).
A second important point that Waldron refers to in this second speech concerns the distinction between hate speech and hate crime. Whereas the former is evaluated in terms of intention but not motivation, the latter, he suggests, does require evidence of motivation. The intention in the former is like the intention at work in public reason generally (as indicated in my previous posting on intention not being understood as "private"). It does not require investigation of "motives" understood as inquiries into the mental states of someone. Hate crime, by contrast, he suggests does require understanding of motives. The suggestion that hate crime requires reference to motives is not as evident, however, as Waldron thinks. Surely it will be the case that such crime indicates that someone intended harm to another and that such harm was based on response to salient characteristics of another. However, the fact that the crime involves harm and intended harm does not distinguish it from hate speech. So it must rather be because the harm was intended due to the salient characteristics of the other that is thought to involve motivation. This need not follow since the identification of the salient characteristics as a ground for attack can be manifested without reference to the "inner" workings of the attacker. Shouting certain words or slogans for example could well be sufficient as could distribution of literature prior to the attack that showed the intent of hate speech. So whilst the argument in favour of seeing hate speech as public is a good one the distinction between hate crime and hate speech offered does not convince me.