The harms of hate speech legislation

Hate speech legislation chills freedom of expression more than it protects vulnerable minorities. Free speech lawyer Ivan Hare takes issue with Jeremy Waldron.

As should be clear from my subtle choice of title, I oppose legislation prohibiting hate speech. I do so for reasons of principle and pragmatism. Before I address them, I would like to say something about Principle 4.

I assume that in referring to speaking “openly”, Principle 4 is not intended to discourage people from expressing themselves about human difference figuratively or through their dress or conduct or in private. I shall assume that it means that when we engage in public discourse, we should do so with civility. Similarly, I see no reason why Principle 4 should be confined to speech about human difference. Why shouldn’t we express ourselves civilly whenever we wish to engage with others in a public forum? Subject to those clarifications, I would endorse Principle 4 as a useful guide to expressive behaviour in public.

However, it is clear from Timothy Garton Ash’s commentary and Jeremy Waldron’s response to it that we are taking about much more than a guide to behaviour. Some would advocate giving effect to this norm not just through legislation but also through criminal prohibition in the form of laws against hate speech. To do so would be an error as the hate speech laws in existence in large parts of Europe and Canada are contrary to the free speech principle at a fundamental level.

The most convincing justification for free speech is that it is essential to our ability to engage in democratic self-governance. That is, our right to participate in the debates on issues of public importance that affect us all. Debates about race (such as immigration, accommodation, assimilation and so on) are central to public discourse in most modern democracies. To prohibit the expression of strongly worded and provocative views on the subject of race through hate speech laws deprives those speakers and their audience of their right to participate fully in that public discourse.

It is no answer to say that the speaker can re-phrase their contribution in more “civil” terms and avoid liability. The topics covered typically by hate speech laws (race, religion, homosexuality) engender strong emotions and speakers should be entitled (as in other areas of public debate) to express themselves forcefully. In any event, how can those misguided enough to assert the superiority of one race over another or the wickedness of homosexuality do so without inciting hatred against the criticised group?

Of course, the right to participate in public discourse is not absolute and if a speaker steps over the clear boundary between forceful advocacy of his views and incitement to criminal activity, the law can legitimately punish him. Equally, this right applies to public discourse, not to face-to-face verbal attacks for intimidation.

I say no more here of the pragmatic difficulties that such laws always present save that prosecutions under hate speech laws provide vastly wider dissemination for the very speech that supporters of such laws are seeking to suppress and clothe the otherwise solitary and pathetic purveyor of hate with the lustre of free speech martyrdom. In contrast, exposure to public scrutiny has a powerful tendency to reveal the absurdity of the views advanced by most purveyors of hate.

What of the positive case for such laws?

Professor Waldron appears to argue that hate speech legislation is a way of protecting vulnerable minorities from offence and damage to their dignity and collective reputation. Superficially, that is an attractive argument. Most of us who engage with this sort of forum will have little sympathy with views condemning homosexuality (such as those espoused by the Westboro Baptist Church in the photograph used to illustrate Professor Waldron’s response) or the white supremacists who burn a cross on the lawn of the only black family in the neighbourhood. However, that is not how legislation on hate speech works: it does not prohibit incitement to hatred against minorities, but against anyone on the basis of certain characteristics such as their race. As such, it is just as likely (and, experience shows, more likely in fact) to be used against members of ethnic or other minorities who express themselves forcefully about members of the majority population. If Professor Waldron’s aim is to protect vulnerable minorities from vilification, hate speech legislation in the form which exists in most of Europe and Canada is a crude and ineffective tool.

In any event, liberal legal systems do not generally protect the rights of groups to vindicate their reputations by law and for good reason.  What does it mean to say that I have an actionable right to vindicate the reputation of the group to which I belong in addition to my personal reputation? Is comment by people who belong to the criticised group to be punishable too? How can the concept of group defamation sensibly be applied to hate speech on the subject of religion (also referred to by Professor Waldron) where adherents necessarily expressly or impliedly assert the inferiority of other belief systems? In any event, any remedy for group defamation would (at least in the common law world) involve the civil law and not criminal prohibitions on hate speech.

As for arguments based on human dignity, there is little doubt that this interest underlies much of our human rights doctrine. In the context of hate speech, the right to dignity becomes the right not be offended or insulted. The difficulty with this is that we have no fundamental human right not to be offended in public discourse and it is a good thing that we do not.  The law did not protect the dignity of the white supremacist deeply offended by the message of racial equality and de-segregation advocated by the civil rights movement in 1960s America and nor does it now shield the religious zealot sickened by the evolutionists’ claim that his children are descended from primates.  The effect of Professor Waldron’s argument is to privilege what is no more than an interest (and a very nebulous one at that) over a fundamental right: the opposite of what human rights protection usually seeks to achieve. This also explains why Professor Waldron’s analogy between hate speech legislation and environmental laws is flawed: the polluter is not exercising a fundamental right, but the contributor to public discourse is.

For these reasons (and many others), I welcome Principle 4 for what it is: a principle. To seek to enforce it by law, however, is a dangerous escalation which damages our fundamental rights and undermines the openness of public discourse.

This article was republished on Eurozine

Ivan Hare is a barrister practising at Blackstone Chambers in London and specialising in human rights cases.  He is the editor of ‘Extreme Speech and Democracy’ (OUP, 2009) (with James Weinstein) and one of the authors of ‘De Smith’s Judicial Review’. He was a Fellow of Trinity College Cambridge 1991-2003.

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    Hate Speech Legislation: The other end of the spectrum
    Three SL language and Literature students Luca Zanichelli, Tommaso Garutti, and Jaco Fourie refer to German law concerning hate speech and draw on examples from John Stuart Mill, Jeremy Waldron and Feinberg to prove that the answer to Hate Speech is not a simple yes or no.

    Although yes, valid points are raised in Ivan Hare’s article “The harms of hate speech legislation” numerous arguments presented by John Stuart Mill and Joel Feinberg may entice you to reconsider your position.

    Jeremy Waldron, an ardent supporter of free speech legislations, defends his views by explaining that if hate speech legislation is not present then the resulting hate speech will incite violence between people of a community. Furthermore he explains how hate speech legislation works with the first amendment on free speech by stating that we already have legislation against different forms of speech such as threatening speech, incitement, defamation and distribution of child pornography so legislation restricting a form of speech is not so strange after all. But he does admit that a lot of thought must be put into the specific legislation implemented considering the extreme delicacy of the matter, even though since other nations have managed to implement legislation successfully he does not see too much of a problem in doing so. In conclusion though he does say that in the end whatever legislations are made must have some place or “safe havens”, outside of public context, in which people are allowed to express themselves in whatever way they deem fit.
    A relevant example that he makes are of how Muslims were targeted, through hate speech, by people in the state of New Jersey after the September 11 attacks and how the government didn’t intervene because it wasn’t able to with existing laws. This shows how without legislation the government wasn’t able to do its task in protecting its citizens from abuse, a thing that should not be happening in a well-ordered society, this thus sends a subliminal message from Waldron that he believes that a well ordered society has as part of its core legislation against forms of hate speech that protects minorities or people targeted for unfair reasons.

    Obvious instances do exist where there is a mutual recognition of when hate speech is inappropriate. Those instances being when it is meant to sway the audience into committing physical harm or illegal crimes. However, hate speech can also be used in a manner that abuses the fundamental right to human dignity and equality of concern and respect. An example being German law where it is a strict offense to violate the dignity of another and subsequently impedes the exploitation of these aforementioned principles.

    In the article “The harms of hate speech legislation” Ivan Hare affirms that “To prohibit the expression of strongly worded and provocative views on the subject of race through hate speech laws deprives those speakers and their audience of their right to participate fully in that public discourse” this claim begs the question, does omitting words which may offend your audience really detract from your argument and thus hampers your ability to fully participate in the said public discourse? As a seasoned public speaker (Jaco Fourie) I acknowledge the use of certain profanities (In a harmless context) to maintain the interest of the audience, but contrary to what was stated in Hare’s article, I would specifically neglect any words or phrases from my speech that may offend my audience. I would do this mainly out of respect to my listeners but also partially to maintain the size of my crowd. Examples include both Bill Clinton and Barack Obama which had to publicly apologize after swearing in front of an audience because the audience was offended. A more recent example would be Obama’s Euro-Diplomat Victoria Nuland who during negotiations regarding the Ukraine Crisis said “ F**k the EU”, this hampered negotiations and did nothing to expedite the process. Were miss Nuland to have censored herself and said something more appropriate, then surely the current subsequent tensions would not have arisen.

    The above examples alludes into an entirely different issue, Hate speech amongst diplomats or anyone who represents their country. Once again, consider the above example. Viktoria Nuland is a US diplomat who was entrusted not only by her Government, but also by her country, to represent them to the best of her abilities. Her comment, as German Chancellor Angela Merkel puts it, was “Absolutely unacceptable”. The comment also sparked tensions between America and Russia. All of this, simply because a US diplomat said one word “f**k”. Nuland used the word to express her negative judgement of the Europeans, something which could easily have been done by not using “f**k and would not solicit the same kind of unwanted response.

    Granted that it is unreasonable to consider outlawing everything that may cause offence, situations may arise where exceptions may be made. Mill states that “some actions, if done publicly are a violation of good manners and coming thus within the category of offenses against others may rightly be prohibited”. This reinforces Mills position on the importance of autonomy, he continues to say, “There are intimate matters, which do not concern anyone but the individual so long as they are done in private. But when they are done publicly, they might cause offence to others and state may legitimately control them”. A 2006 example in mall in Maryland includes two students who were making a religious-themed speech to iranian students and several bystanders. They were ridiculing the Islam religion and were explicitly labelling it as evil. Police arrived at the mall and described the scene by saying that the two students were harassing people who appeared to be from Middle Eastern origin. The Police proceeded to escort the students out of the mall. A witness was interviewed saying “The disruptive party was harassing the iranian students, and the officers sent them on their way and told them they couldn’t do that”. Furthermore, some personal intimate bedroom matters of an individual which are of no significance to a group and contain hate speech can rightfully solicit forceful response from authority.

    Other examples also exist where intervention from an authoritative group can be considered just. The Skokie March in 1977 was led by Nationalist Social Party Frank Collin through a predominantly Jewish community. The march included verbal assaults in the form of chants and degrading posters carried by the participants. Considering the time (not long after World War two which saw the extermination of 6 million jews) and nature of the march, the US Supreme Court thought it necessary to intervene and assess the march.

    What the above illustrates is that in the event that the target group or audience is incapable of avoiding exposure to the speaker or whatever medium of communication, it would be considered morally wrong to continue to subject them to hate speech which may contradict their ideals/beliefs/ethnicity etc.

    Mill employs an analogy of a corn dealer, that suggests that it is acceptable to express anger through speech and the printed page. The corn dealer, who deliberately charges excessively high prices, angers the poor. Expressing this anger is acceptable as long as no harm is done towards the dealer as a result. Mill believes that we must have the right to free speech since we have liberty of thought; the two are interdependent. He asserts that speech should be restricted only when the purpose goes past offending the target: speech should never incite physical or psychological harm. At this point, speech should be limited as it violates their human rights.

    Feinberg offers some fundamental parameters, which can define if a claim for offense, due to hate speech, is sincere and valid. These three norms consist of the target group experiencing an uncomfortable and hostile situation, being able to prove that this state was caused by another’s wrongdoing, and showing that the victim “resent[s] the other for his role in causing [him or her] to be in that state”. He further states that the gravity of a verbal assault will be determined by three more principles: the vigorousness and extent of the assault, the “ease with which unwilling witnesses can avoid the offensive displayers”, and whether the victims, in any way, increased the possibility of the assault. Furthermore he supports Mill’s argument that this offense has to be a legitimate source of discomfort, and not simply a minor nuisance.

    The issue of hate speech legislation is an intrinsically complicated one which entails numerous exceptions and special cases. It will not suffice to simply label hate speech as an acceptable affair, nor will it be satisfactory to simply ban it. All aspects must be considered before a decision that affects everyone can be made, and its not as easy as yes or no.

    Works Cited
    Cohen-Almagor, Raphael. Speech, Media, and Ethics: The Limits of Free Expression. Basingstoke: Palgrave Macmillan, 2004. Print.
    “Join & Share Your Research with the World.” Harm Principle, Offence Principle, and Hate Speech. Web. 20 Mar. 2014. .
    Mcconnell, Michael W. “You Can’t Say That.” The New York Times. The New York Times, 23 June 2012. Web. 20 Mar. 2014. .
    Mill, David Van. “Freedom of Speech.” Stanford University. Stanford University, 29 Nov. 2002. Web. 19 Mar. 2014. .
    “Obama’s Euro-Diplomat Apologizes for Cursing Out EU.” Newsmax. Web. 20 Mar. 2014. .
    “Police Intervene in Offensive Speech.” The Diamondback. Web. 20
    Mar. 2014. .

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