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Most moral philosophers would agree that the concept of a moral right implies that if a person has a right to do X he or she cannot be justly prohibited from doing X solely because some harm or hardship to others will follow. This does not mean that a right can never be justifiably overridden no matter what the consequences. It does mean that something more than minimal harm is needed to justify overriding a right. How much more is a matter of controversy.

This point brings us back to the question "Why should we tolerate some speech in spite of the fact that it does harm?" (We can ask this question about any action protected by a right.)

Thomas Scanlon has answered this question by linking a broad (but not absolute) right to freedom of expression to legitimate government. He offers a principle which he calls the Millian Principle:

There are certain harms which, although they would not occur but for certain acts of expression, nonetheless cannot be taken as part of a justification for legal restrictions on these acts. These harms are: (a) harms to certain individuals which consist in their coming to have false beliefs as a result of those acts of expression; (b) harmful consequences of acts performed as a result of those acts of expression, where the connection between the acts of expression and the subsequent harmful acts consists merely in the fact that the act of expression led the agents to believe (or increased their tendency to believe) these acts to be worth performing.

Scanlon then links this principle with the nature of legitimate government:

I will argue…that the Millian Principle, as a general principle about how governmental restrictions on the liberty of citizens may be justified, is a consequence of the view, coming down to us from Kant and others, that a legitimate government is one whose authority citizens can recognize while still regarding themselves as equal, autonomous, rational agents.

In short, a government that does not protect speech, in spite of the harms indicated, cannot be a legitimate government.

The problem for anyone dealing with the problem of hate speech is to develop a theory of free expression that recognizes the harm done by hate speech and explains why, in general, such harm should or should not be protected. This problem is not solved simply by showing that this harm can be described and distinguished from other harms. (The problem is not mainly due to the difficulty of drawing a line, although this may dispense with some slippery slope objections). Scanlon's argument can serve as an example of one way to approach these problems.

Reference: Scanlon, Thomas. "A Theory of Freedom of Expression." Philosophy & Public Policy, Volume I, Number 2 (Winter, 1972).