No hate speech, no free speech

In praise of the First Amendment

The demand to criminalise hate speech is essentially a demand to criminalise people who haven't actually done anything wrong.

by Josie Appleton 

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.

Public libel offences - the problem with crimes of esteem

Waldron finds a precedent for hate speech regulation in the public libel offences, which were also crimes of esteem. The public libel offences in the UK were blasphemous libel, seditious libel, and obscene libel. Unlike civil libel offences, which involved damage to a person’s reputation, these were criminal offences, and involved slandering or bringing a publicly valued idea into disrepute (God, the state, and sexual morality, respectively). Offences of ‘group libel’ or ‘group defamation’ were concerned with maintaining ‘public order’ – that is, the ideological elements necessary for social stability and intercourse.

Using this analogy, Waldron says that hate speech is a form of group libel: it undermines groups’ ‘status, dignity and reputation’, and so obstructs the orderly functioning of society, and is therefore a public and criminal concern.

The analogy with public libel offences is not a flattering one. At base, these offences were about the overt state control over ideas and values, when other methods of influence or persuasion had failed. They tended to be used selectively, and worked on a different basis to the rest of the criminal law.

The use of public libel always represented a failure of democratic and modern principles. Rather than persuade the public of the wisdom of, say, respect for the government, or sexual morality, public libel law imposed this view under threat of criminal sanction.

Public libel has always been an oddity. It was essentially a feudal hangover, which had no proper place in modern liberal society. The state control over ideas was necessary for Tudor England, or reconquered Spain, and the public libel offences of treason and heresy were fundamental to the authority of those states. Yet the same should not be true of a modern state. In a modern state, ideas prove their worth in open public debate. There should not be a crime of bringing certain values into disrepute, or lowering certain ideas in public esteem.

It is for this reason that public libel was not systematically prosecuted in the USA or UK. Sedition tended to be mainly used in wartime, as Anthony Lewis describes in his Freedom for the Thought That We Hate (1). Under the US 1918 Sedition Act, a man received a 10-year sentence for speaking favourably of those refusing to register for the draft; another man got seven-to-20 years for calling wartime food regulations a ‘big joke’.

These sedition offences were all about harm in esteem: they prohibited speech that was profane, scurrilous, contemptuous, abusive, disloyal; that is, speech or writing that lowered the state, the constitution or the flag, in esteem, and brought them into ‘contempt, scorn, contumely, or disrepute’ (2).

Blasphemous libel was very rarely used after the nineteenth century. Obscene libel, on the other hand, continued to be heavily enforced until the 1950s (in England the test was whether the work in question had a ‘tendency’ to ‘deprave and corrupt those whose minds are open to such immoral influences’)  – but there was always something odd and not at all modern about it. The censorship of plays, for example, was carried out by the Lord Chamberlain, head of the royal household, who would delete expletives and references to sex. It was as if such a prescription of public morality could only be carried out by an aristocratic institution.

So if we look at public libel, we come to the opposite conclusion to Waldron. Rather than providing support for the idea of a crime of lowering esteem, we find that public libel offences have always been a shoddy and dubious business. They were not about a public good, but rather were about the overt state regulation of ideas, which was used when the elite had failed to win consent by democratic means.

The state regulation of debate

The true basis of hate speech regulation is similar to that of public libel offences: state regulation in the realm of ideas. Only it is very different in nature. Hate speech regulation is not about defending particular ideas or values, deemed to be necessary to social order. Instead, it is a more generalised regulation of moments of conflict and antagonism.

The striking thing about hate speech regulation is the way in which it affects every social group. When the UK government released a list of people banned from the UK for ‘preaching hatred’ in 2009, it was almost as if they had deliberately chosen one of everything: one Arab, one Jew, one US ‘shock jock’, one Nazi, one Muslim, one Zionist, one homophobe. Every political creed and religion was represented in its extreme form.

The government at the time explained that the danger of hate speech was that it could cause social discord and unrest, and it was determined to take ‘stronger action against those we suspect of stirring up tensions’.

Hate speech regulation is an intervention into expressions of conflict or antagonism. It approaches political conflict as potentially explosive and destabilising, and recommends the state mediation of such conflict. This explains why hate speech regulation can encompass everything from extremely offensive to very mildly offensive speech.

This may not involve the state laying down lines of acceptable opinion, but involves a different kind of power, with the state posing as the mediator of public discussion, the judge of what can and cannot be said, as well as the judge of the outcome of a public exchange.

Take the case of a Christian preacher, arrested and fined in Glasgow, for making ‘homophobic remarks aggravated by religious prejudice’. While preaching, he was asked what he thought of homosexuality; he responded that homosexuals would suffer the ‘wrath of god’ and go to hell. People in the crowd started shouting comments and questions, and a group of gay men started kissing, asking ‘What do you think of this?’. It may not have been the most elevated encounter, but this was a moment of conflict between opposing views, which was brought to a halt by the arrival of the police and the arrest of one party.

Hate speech regulation curtails the moment of ideological conflict, when no crime has been committed. In this the state appears to be defending the victim. But it is actually defending itself, as the mediator and moderator of public debate, and the judge of what is and is not acceptable.

In the hate speech prosecutions mentioned above, what is interesting is the trumpeted self-congratulation of the public prosecutors. They put out press releases celebrating ‘the [Crown Prosecution Service’s] determination to take on challenging and ground-breaking cases’, while asserting that prosecutors ‘regard homophobic crimes, along with all hate crimes, as particularly serious’.

The prosecution of the three Muslim men for homophobic hate was not about the harm done to the gay community of Derby. It is more accurately viewed as a showtrial for the CPS, an opportunity to flex muscles and make speeches. The prosecution of the various other maladjusted individuals for their ill-advised comments is similarly an occasion for the authorities to make speeches about how such behaviour is ‘deeply offensive and will not be tolerated’.

What is even more pernicious is the way in which many groups have internalised this view of the state as mediator and judge of public debate. In the most banal conflict, it is common for both sides repeatedly to accuse the other of ‘hate speech’, and call for censorship or arrests. A debate degenerates into an exchange of claims to feel insulted, and a process of petitioning a public authority to suppress the other party.

Hate speech regulation and the provocation of hate

There is a point that Waldron makes very well – and upon which supporters of free speech can agree – which is the need for a public climate of mutual respect and tolerance. Waldron celebrates the ‘well ordered society’: ‘[The] peaceful order of civil society and the dignitary order of ordinary people interacting with one another in ordinary ways, in the exchanges and the marketplace, on the basis of arm’s-length respect.’

Indeed, the reason why free speech works – why, in modern society, free speech is the basis of order and civility, whereas in most other societies it would have meant anarchy – is because of relations of mutual respect between self-governing individuals.

Waldron may well be right that such ethics are on the wane. There is certainly a tendency towards rudeness and ad hominem attacks, with arguments tending to degenerate into an exchange of insults. With the recent anti-Islam film, or the Danish or French cartoons picturing Muhammed, we see a form of criticism that is peculiarly gratuitous and facile.

There are also instances of public expression which are merely offensive, with no further point.Christian campaigners carried a pig’s head to a festival of American Muslims, along with signs that read ‘Islam is a religion of blood and murder’. English Defence League members marched through Whitechapel, an Asian area of London, shouting anti-Islam slogans. French anti-Islam campaigners applied to hold a demonstration called ‘saucisson et pinard’ (salami and booze) in an Arab area of Paris, which would have involved them marching through the streets with alcohol and pork, during prayer time and an Algerian international football match.

One might look at such events as indicating the need for regulation of public debate. Yet in a strange way, such hateful expressions are themselves the product of the state regulation of speech.

These offensive expressions often have the element of an outburst, the ejaculation of suppressed or prohibited ideas, saying something that ‘you are not allowed to say’. When political tensions or frustrations lack expressions or outlets, they burst out in this crude form of insult, as a pure assault on another group of people.

In addition, the state regulation of debate removes some of people’s responsibility for the content of speech. If an interaction is always policed, and the state is always there as a prohibiting and mediating force, this means that people do not take responsibility for the content or consequences of their speech. Their words can become a sheer provocation, because in a way they are not communicating to another, but are making a gesture to the world at large.

In many cases, the provocation seems to be deliberately inviting the prohibition: the point of the exercise is to get the reaction from the other party and from public authorities. The anti-Islam ‘salami and booze’ march was banned, as they would have expected it to be. The provocation was a gesture, which could only be made because of the presence of a public authority which would restrain both parties. The ban then acts as a form of propaganda, to demonstrate the marchers’ conviction that Muslims are protected by the police and powerful forces, whereas honest French people are not even allowed to express themselves.

Freedom from hate speech regulation

And so we must conclude that on the question of hate speech regulation, the Americans aren’t mistaken after all. The regulation of hate speech is not actually about the protection of victims from real harm, but about the state policing of debate and moments of ideological conflict.

Hate speech regulation has no place in a modern society, on either side of the Atlantic. If all hate speech laws were abolished tomorrow, the public good – including that of minorities – would suffer no harm, and in fact could only improve.