Retheorizing actionable injuries in civil lawsuits involving targeted hate speech: Hate speech as degradation and humiliation

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Many legal jurisdictions permit victims of targeted hate speech to sue for damages in civil courts. In the US plaintiffs may sue for damages using the tort of intentional infliction of emotional distress. Indeed, back in 1982, Richard Delgado proposed the introduction of a new tort of racial insult to handle such cases. In South Africa, plaintiffs can use the delict of injuria. Although there have been some successful lawsuits, the tort of intentional infliction of emotional distress has been an unreliable means of recovering damages for psychological harms caused by targeted hate speech. One major obstacle to recovery in the US has been the tendency the courts to view the use of racial insults, for instance, as too ordinary or commonplace to count as ‘extreme and outrageous conduct’. Even Delgado’s tort of racial insult would not recognize as a cause of action the mere use of a racial insult; the insult must demean. But once again this opens up significant leeway for courts to treat many commonplace racial insults as non-demeaning. In South Africa, the courts have interpreted the delict of injuria using the abstract test of whether the speech ‘impaired the plaintiff’s dignity’. The open-textured nature of this test has led courts to diverge in their understanding of the dignitary threat posed by almost identical forms of hate speech.
In this article, I argue that these two torts and one delict should be comprehensively rethought. At the level of theory, we should think of them as protecting people’s fundamental rights to human dignity and the expression of human dignity as well as people’s fundamental rights to civic dignity and confidence in their civic dignity. And, at the level of practice, courts should adopt what I am proposing as two new legal tests for degradation and humiliation as a way of interpreting and operationalizing these two torts and one delict in cases of targeted hate speech.
Original languageEnglish
Pages (from-to)1-56
Number of pages56
JournalAlabama Civil Rights & Civil Liberties Law Review
Issue number1
Publication statusPublished - 5 Mar 2018


  • Hate speech
  • tort law

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