No hate speech, no free speech: In praise of the First Amendment
October 29, 2012
The demand to criminalise hate speech is essentially a demand to criminalise people who haven’t actually done anything wrong.
Most European countries have laws restricting ‘hate speech’. America, with its attachment to First Amendment freedoms, has none. Jeremy Waldron, an English legal academic in America, suggests that the Americans are mistaken.
The Harm in Hate Speech is part of a debate Waldron has been having with US free-speech defenders, on the pages of various reviews of books and from the podium of New York University. Waldron argues that liberals have not sufficiently appreciated the harm done by hate speech. This is a charge he particularly directs against Anthony Lewis, author of Freedom for the Thought That We Hate, and more recently against Timothy Garton Ash on the pages of the Free Speech Debate website.
Indeed, he accuses liberals of ‘liberal bravado’, making a show of their ability to ‘bear the pain’ of ‘vicious invective’. Yet they are not the victims of hate speech, he says; it is vulnerable individuals and groups who suffer harm, while free-speech advocates stand on the sidelines quoting Voltaire.
Waldron defines hate speech as ‘words which are deliberately abusive and/or insulting and/or threatening and/or demeaning, directed at members of vulnerable minorities, calculated to stir up hatred against them’. Hate speech is an attack on the ‘fundamental dignity’ of other members of society. The ‘harm’ of hate speech is like a ‘group libel’ offence, the defamation or demeaning of another social group.
He argues that hate speech is a crime that is a harm in esteem. This is a harm that is more than mere offence or criticism, but less than a threat of violence or attempted act of violence.
Significantly, hate speech is also different to the old common-law crime of incitement, or encouraging or pressuring another person to commit a crime. Where the ‘harm’ of incitement is related to an actual or potential criminal act, the harm of hate speech is in the realm of ideas: it is expression that ‘incites’ or ‘stirs up’ hatred, and lowers the standing of a group in public esteem.
Waldron’s case is well made and eloquently put. It starts to break down when we consider the actual use of hate-speech laws.
Where is the harm is hate speech?
In the UK, there are three ‘hate’ offences on the books: stirring up racial hatred, stirring up religious hatred, and stirring up hatred on the grounds of sexual orientation.
If we look at the use of these laws, we find that the small number of individuals prosecuted under them are sad, marginal types, with relatively limited effect on anything or anybody. Indeed, it often appears that their hateful speech was a consequence of this social marginalisation.
A recent hate speech conviction was of three Muslim men for handing out anti-gay leaflets outside a Derby mosque. One leaflet, entitled ‘Death Penalty?’, showed a mannequin hanging by a noose with the words: ‘The death sentence is the only way this immoral crime can be erased from corrupting society.’ Another leaflet showed the word ‘gay’ laid out as an acronym to read ‘God Abhors You’; and a third, called ‘Turn or Burn’, showed an image of a person burning in a lake of fire, accompanied by the word ‘homosexuals’ with a red line drawn through it.
These leaflets were handed out to mosque goers, and a few were posted in nearby letter boxes. Frankly, they might as well have been posted in the bin. No minds were changed, nobody was incited to acts of violence or discrimination. The gay community of Derby suffered no actual harm. The very hatefulness of the speech was also the thing that condemned it to irrelevancy, since it was so far from general public opinion and so crude that nobody would have been convinced or swayed by it.
Another man was prosecuted for stirring up religious hatred, for handing out 30,000 anti-Muslim leaflets across the north of England, which argued that Muslims are responsible for bringing heroin to the UK (he seems not to have heard of opium). His leaflet argued: ‘Before the Islamic invasion it was impossible to find heroin in our land. Muslims are almost exclusively responsible for its production, transportation and sale.’ Defending himself at his trial, he noted that there had been ‘no unpleasant incidents or social unrest’ as a result of his leaflets. One wonders if there had been any reaction at all.
Hate speech convictions are convictions of people who didn’t actually do anything: they didn’t attack anyone, or threaten or plan to attack anyone, or deny anyone access to services. Nor are they convictions of people whose hateful publications have large audiences or a sway over public opinion.
At base, hate speech prosecutions are really prosecutions for extremely offensive speech. It is for this reason that hateful speech is much more frequently prosecuted under different, much broader laws, which criminalise offence.
The UK has a growing number of such laws, particularly: Section 5 of the Public Order Act, which criminalises ‘threatening, abusive or insulting words or behaviour’ in the vicinity of a person ‘likely to be caused harassment, alarm or distress thereby’; and the Communications Act 2003, which prohibits sending ‘by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character’. These laws are used for tens of thousands of prosecutions each year, rather than a mere handful, and so represent the bulk of the regulation of hate speech.
Those prosecuted under offence laws also tend to be socially isolated saddos. Recently a man was jailed for wearing a t-shirt sporting the slogan ‘kill a cop 4 fun’ after the murder of Manchester police officers. Others imprisoned include Liam Stacey, who posted an expletive-ridden, racist Twitter rant about the footballer Fabrice Muamba; a Muslim man who posted on Facebook that ‘all soldiers should die and go to hell’ after the deaths of British soldiers in Iraq; and a man who posted offensive comments on Facebook about a missing schoolgirl.
Others prosecuted under such legislation include a protester who called scientology a ‘cult’, Christian preachers who said homosexuals would ‘go to hell’, and most famously, a student who asked a police officer if his horse was gay. The regulation of hate speech, then, targets extreme through to very minor offences…