Summer Series #10: Hate Speech Should Stay Free


By Austin Rose

At first blush, the concept of hate speech does not exactly lend itself to defense. It is not pleasant to defend the worst ideas that humanity has to offer, but it is necessary. We should do so because shrinking the right to free speech will do more harm than good in practical terms, but also because doing so strengthens and enables dark political tides that have the potential to do catastrophic damage to society.

Let’s start at square one: what is the most charitable version of the case for limiting free speech that a supporter could construct? First, isolate what is likely the most sympathetic issue at hand. While some observers could be forgiven for conflating the modern movements for safe spaces and trigger warnings with hate speech, I’ll only focus on the latter. Why should hate speech be an exception to our right to free speech? A strong argument reminds the reader that the first amendment is not inviolable; we make exceptions in all sorts of cases. For example, shouting fire in a crowded theatre is so malicious and damaging that it, and the class of speech that it represents, should be punished. Why wouldn’t a just society also protect traditionally marginalized groups from the worst elements of society spewing hate into the public sphere, where it is easy to argue that this hate ends up hurting people in concrete ways? Incitements to riot end up burning down stores, and KKK rally chants end up hurting minorities physically and psychologically.

This is where any serious rebuttal has to start. When we say that free speech should not be limited to account for hate speech, we must acknowledge that we are asking disadvantaged populations to continue to suffer insult and injury without any governmental intervention in order to defend free expression.

How can such an ask be justified? Let’s start by acknowledging that the first amendment does have limits, but I’ll also add some clarity about where we ought draw the line in an optimally free society. Intent is important here. I think that it is fair to punish people who can be proved to be knowingly spreading falsehoods, as the US does with slander laws. At that point, no one is expressing himself authentically, so the public discourse loses very little. The length of the causal chain is also important. In Brandenburg V. Ohio, the Warren court defended a KKK leader accused of inciting criminal acts, as will I. The man whipping a mob into a frenzy has appreciably more proximate responsibility for what the mob does in the next ten minutes than in the next ten months. That intervening period of time allows for the individuals being incited to reflect on and reaffirm their own agency before harming others, for which those individuals can be richly punished once convicted of their crimes.

So, the impulse to outlaw hate speech breaks new legal ground and needs to be debated as more than an overlooked extension of previous thought.

The courts would face immense obstacles to implementing this impulse appropriately. Establishing a legal standard that could be fairly applied across all cases seems even more devilishly hard than it usually is, given the subjective nature of offense. As Jacob Mchangama writes,

“In Denmark a person was convicted for stating that ‘Islam is not a religion but a terrorist organization intent on world domination.’ That is certainly a harsh critique of Islam, but it is not clear that it is targeting all Muslims. If so then presumably someone quoting Nietzsche’s The Antichrist would also be engaging in hate speech since it includes the following attack on Christianity: ‘I call Christianity the one great curse, the one great innermost corruption, the one great instinct of revenge, for which no means is poisonous, stealthy, subterranean, small enough — I call it the one immortal blemish of mankind."

Arbitrarity in the legal system is not something to sniff at-- it means people aren't clear on the punishments they can receive, and for what exactly, harming deterrence. It can give people reason to question the impartiality of the courts, especially in clearly similar cases with different outcomes.

Outlawing hate speech also has the effect of replacing at least somewhat the other principal means by which societies can kill hateful ideology, counter speech. When people have no need to fear legal retribution for expressing a sincerely held belief that one race is inferior to another, they are more likely to express that moronic opinion. When that happens, on facebook, youtube, in the paper, or on the street, the rest of society gets a chance to harshly disabuse them of that notion, and everybody else watching on the sidelines gets to see which side wins. It’s ideological darwinism at it’s finest. When you don’t give stupidity a fighting chance, it doesn’t disappear; it retreats underground, to the fetid backchannels of human interaction where bigots can quietly perpetuate themselves. To get a better sense of how suppression stimulates certain elements of society, imagine the response that conspiracy theorists would have to the outlawing all questions about the moon landing. Maybe we’d feel good dragging the first few crazies out to trial, but do you feel confident that the problem of misinformation would be solved?

The truth is, lots of the progress made by counter speech is not terribly affected by the levers of public policy. There is some reason to believe that the EU, despite having much more restrictive hate speech laws than the US, actually trailed the US in the reduction of discriminatory public attitudes. There is no doubt that pretty much every empirical measure of hateful thought we have is on a long term, steep decline. Things aren’t perfect, but counter speech is making respectable progress. Changing deeply held attitudes and biases is a multi- generational slog, and a restriction on bad opinions seems unlikely to win any converts.

The last, and most important point, is that human society is not yet done needing protections from authoritarianism. It will never be. Only a few years before World War 1, one of the most popular books on the market argued that war was over. Soon after, the US Supreme court was upholding sentences against socialists for the crime of expressing policy positions. All it took was a few domestic policy wins and a coup attempt for Turkey to willingly vote in constitutional reforms that destroyed decades of liberalization. A man like Donald Trump, who has expressed a worrying inclination to crack down on free speech by expanding the interpretation of currently accepted free speech law, can come to power immediately following Barack Obama and the end-of-history hope he inspired for many.

The truth is, the vast majority of regulations on “dangerous” speech have been used to stifle progress. The abolition movement, feminism, and the Republican party are just some of the historical victims of governments that have co-opted the sympathetic notion that some speech is simply too harsh to be allowed.

When we unsheath the sword that pares away the rough corners of the first amendment, we give that weapon and a precedent for using it to anyone and everyone who follows us. Far better that we destroy such a tool entirely than see it one day fall into the wrong hands. Ronald Reagan once said that “freedom is never more than one generation away from extinction.” We should all reexamine the Gipper’s warning.

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