The Case Against Hate Speech Laws

Writing at AlterNet, Sean McElwee puts forth an argument for censoring online hate speech–particularly on social networking sites such as Facebook and Twitter. McElwee says that, although “stricter regulation of Internet speech will not be popular”, it is “necessary.”

McElwee claims that the purpose of hate speech is twofold: it tells bigots that they are not alone, and it intimidates the targeted minorities, “leading them to question whether their dignity and social status is secure.” (Apparently all minorities are teenage girls characters from the movie Mean Girls.)

But what about freedom of speech? McElwee has an answer for that: According to him, hate speech is not merely the expression of thought, but an action in and of itself.

And if hate speech is an action, then “saying that we should combat hate speech with more positive speech is an absurd proposition; the speech has already done the harm, and no amount of support will defray the victim’s impression that they are not truly secure in this society.”

McElwee compares being the “victim” of hate speech to being the victim of a robbery: “We don’t simply tell the victim of a robbery, ‘Hey, it’s okay, there are lots of other people who aren’t going to rob you.'”

According to McElwee, hate speech is “intimidation of minorities” and refusing to censor it amounts to suppression of “positive liberty.”

Like all would-be censors, McElwee proclaims that “free speech isn’t an absolute right.” To demonstrate this, he points to legal prohibitions on fighting words, libel and child pornography. (This line of argument basically boils down to: “You’ve already accepted some restrictions on your freedom, why not accept more?”)

McElwee even finds support in United States jurisprudence: He cites the case of Beauharnais v. Illinois (1952), in which the U.S. Supreme Court upheld an Illinois hate speech law. The court ruled that the defendant’s speech constituted “group libel” and was therefore not protected by the First Amendment.

Even granting that free speech in the United States isn’t “absolute”, McElwee’s argument fails for a number of reasons:

Firstly, there is no such thing as a right to “feel secure in one’s dignity and social status”–such a right is incoherent in theory and totalitarian in practice.

Secondly, it is absurd to argue that a group can possess rights not belonging to an individual. Why should a group of people who share a common characteristic (e.g. red hair, dark skin, belief in a cosmic Jewish zombie) be protected from having that characteristic mocked, degraded or insulted, while an individual has no such protection?

If I say that all Scientologists are mentally deficient cultists whose “religion” is nothing but a con artist’s half-assed attempt at science-fiction, I would be guilty of hate speech in some countries.

On the other hand, if I say that my fictional roommate Bob is a pathological stamp collector with an eternally flaccid penis and a temperament that makes Charles Manson look like the Dalai Lama, I have not committed hate speech because the characteristics I’m attacking are Bob’s alone. (Although if Bob were real, he could probably sue me for libel.)

Thirdly, who is the victim when hate speech occurs? Who receives redress when an individual violates the “dignity” of a group? Are all members of the targeted group–even those who are only peripherally attached–considered victims?

If I say something disparaging about blonde women, and my comment rises to the level of hate speech–have I infringed on the rights of all blonde women? What about those who are only temporarily blonde, or those who are naturally blonde but have died it black since middle school, or those with blonde highlights, or those whose hair color changes with the season?

Any coherent theory of rights requires that every crime have an identifiable victim, not some vaguely defined group whose “dignity” has been allegedly harmed. It is nonsensical to claim that hate speech violates the rights of a group in the same way that robbery, for example, violates the rights of an individual.

The idea that hate speech is “group libel” also ignores the fact that no minority group is of one mind. Some may not be aware of the alleged hate speech, others may not care, and still others may value freedom of speech far more than some fuzzy conception of “dignity.”

And finally, what is hate speech? McElwee defines it as speech “that attacks the dignity of a group.” Meanwhile, governments around the world variably define it as speech that “promotes hostility”, “incites hatred”, “threatens, insults or degrades”, “ridicules”, “undermines public order”, “provokes interethnic strife”, “offends religious sentiment”, “brings into contempt”, “discriminates”, “is hurtful”, or “expresses disrespect.” (A vaguely worded hate speech law could very well criminalize half of the Internet, including this blog!)

And therein lies the problem: hate speech, like “obscenity”, is very difficult to objectively define, and laws against it are often left intentionally vague. Vague laws make bad laws, because they open the door to selective and arbitrary enforcement. (In United States jurisprudence we have the concept of “unconstitutional vagueness” precisely to protect individuals from being convicted under vaguely worded statutes.)

Laws proscribing hate speech run contrary to basic principles of substantive and procedural due process: they create a “right” out of thin air, bestow this right upon certain “protected” groups but not upon individuals, condemn people for crimes in which the victim is something intangible like a state of mind, and define said crimes using vague language that opens up any speaker to potential prosecution.

And it should go without saying that hate speech laws are inimical to freedom of speech. (Free speech is a rather toothless concept when it only protects popular, inoffensive speech.)

It may be a cliché, but the solution to bad speech is good speech. Silencing hateful viewpoints will not make them go away. The best thing to do is to bring them out into the open so those expressing such views can be condemned and ostracized.

(It’s worth pointing out that few people would contest the right of Facebook, Twitter, and other websites to police their own pages for offensive content–and even to ban users who post such material.)

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2 Responses to The Case Against Hate Speech Laws

  1. fojap says:

    I agree with just about everything you say, but I’d like to point out that you use the phrase “teenage girl” as if it’s an insult. I saw on your about page that you call yourself a “profeminist”, so I’m guessing you don’t consciously hold the view that women are sillier than men. Comments like that, however, perpetuate negative stereotypes. As someone who was a rather serious teenage girl, I can assure you that statements like that hurt serious, intellectual teenage girls that already have a hard time being taken seriously.

    • Dan Thompson says:

      It was certainly not my intent to suggest that teenage girls are “silly” or not to be taken seriously. I was simply trying to mock McElwee’s assertion that members of minority groups spend a lot of time dwelling on their social statuses and any perceived threats to them. I assumed that readers would understand that I was referencing a particular stereotype of teenage girls while not endorsing that stereotype myself. In my attempt to criticize McElwee’s broad assertions about entire demographic groups, though, I inadvertently did the same thing. For that, I am sorry. Next time I will try to choose my words more precisely. I assure you, though, that the target of my criticism was not teenage girls but liberal censors like McElwee. I hope my record of defending the rights of women and teenage girls–particularly in the area of reproductive rights–can speak for itself.

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