New Internationalist

Argument – Should hate speech be a crime?

December 2012

Feminist Joyce Arthur and gay rights activist Peter Tatchell weigh up the pros and cons.

Every month we invite two experts to debate, and then invite you to join the conversation online.

Joyce

A consensus exists in most Western democracies on the legitimacy of using laws to punish or inhibit hate speech, in order to prevent hate crimes, provide redress to victims, support vulnerable groups, protect human rights, and promote values of equality and respect.

Countries have international obligations to combat racism, which require enacting hate speech legislation. As in Canada, reasonable limits can be placed on freedom of expression to balance it against other fundamental rights, such as freedom from discrimination. Free speech is no sacred cow, anyway, since various restrictions are already accepted by society – for example, bans on threats, defamation, false advertising, noise around hospitals or schools.

Joyce Arthur is an activist, sceptic and feminist writer from Canada. She campaigns for abortion rights and was a founding member of FIRST, a national feminist sex worker advocacy organization based in Vancouver. She regularly blogs for rabble.ca

While laws are only one tool among many to fight hate speech, they should at least be used against the most egregious cases. Courts and tribunals are capable of objectively weighing evidence and applying criteria to ensure that legitimate free speech or merely offensive speech are not captured.

Hate speech is dangerous because words have power and can influence others to act. The assassinations of abortion providers in the US prove that words do not have to incite violence explicitly to cause violence. Hate speech promotes division and intolerance; it harms and marginalizes the vulnerable groups it targets. Free speech is exercised largely by the privileged at the expense of the unprivileged who do not have a level ground on which to respond. Having no hate speech laws is unjust – as if people’s dignity and human rights should be up for debate in the public square and ‘may the best argument win’.

Peter

Hate speech is merely saying hateful things. It is not the same as discrimination, harassment, threats or violence – all of which are qualitatively worse and are rightly criminalized.

I don’t approve of hate speech and believe it should be discouraged and challenged. However, I don’t think it should be criminalized, unless it is expressed in a particularly aggressive, inflammatory or sustained manner, in which case it would amount to criminal threats or harassment.

Peter Tatchell twice tried to perform a citizen’s arrest on Zimbabwe’s Robert Mugabe, getting badly beaten in the process. For more than three decades he has campaigned for human rights, democracy, global justice and LGBTI freedom

One of the main problems with hate speech laws is defining what constitutes hate. Unlike incitement to violence, it is highly subjective. The line between hate speech and legitimate unpalatable viewpoints is hard to draw with certainty, clarity and consistency.

Several Christian and Muslim street preachers have been arrested in Britain for hate speech. Their crime? They said that homosexuality is immoral and that gay people will go to hell. I disagree with them but opposed their prosecution. What they were saying was hurtful but not hateful. They did not express their views in a bullying or menacing tone.

Free speech is one of the hallmarks of a democratic society. It should only be restricted in extreme, compelling circumstances. Criminalizing views that are objectionable and offensive is the slippery slope to censorship and to the closing down of open debate. It is also counter-productive. It risks making martyrs of people with bigoted opinions and deflects from the real solution to hate speech: education and rational debate. Hate speech should be protested and challenged, not criminalized.

Joyce

Hate speech is a public expression of discrimination against a vulnerable group (based on race, gender, sexual orientation, disability etc) and it is counter-productive not to criminalize it. A society that allows hate speech to go unpunished is one that tolerates discrimination and invites violence. Decades of hateful anti-abortion rhetoric in the US led to assassinations of providers, because hate speech is a precursor to violence.

Hate speech has no redeeming value, so we should never pretend it occupies a rightful spot in the marketplace of ideas, or has anything to do with ‘rational debate’. Challenging hate speech through education and debate is not enough. Governments have a duty to protect citizens and reduce discrimination and violence by criminalizing hate speech.

Defining a crime with certainty, clarity and consistency is always a somewhat subjective exercise, but one that courts are expressly designed to do. Hate speech can be defined and prosecuted fairly without going down a slippery slope. An example is Canada’s ‘Taylor test’ in which hate speech must express ‘unusually strong and deep-felt emotions of detestation, calumny and vilification’.

Specific arrests or even prosecutions of hate speakers may not meet the test of criminal hate speech, and do not prove that hate speech laws are counter-productive. (In my view, however, only hate speakers with a wide audience or who engage in repeated ongoing hate speech should be prosecuted.) The justice system is a human institution and abuses can happen, but the answer is to refine and reform laws, not to scrap them.

Peter

I disagree that hate speech is an expression of discrimination. It’s an expression of prejudice; not discrimination. Words and discrimination are two different things – unless the words explicitly incite unlawful discrimination; in which case they should be crimes because they incite criminal acts.

Mere hateful views shouldn’t be criminal. Who decides what is hateful? The state should not have such power. It’s open to abuse, as happened to anti-war protesters who abused British soldiers for their role in Iraq.

Carlos Sanchez / Reuters
Members of the Grand Dragon faction of the Ku Klux Klan shout insults at gay couples going to request marriage licences in Houston. Carlos Sanchez / Reuters

You suggest the police and courts are capable of distinguishing between hate speech and merely offensive speech. This is not true in Britain, where insults can be treated as hate speech. I was arrested for saying the homophobia and sexism of Islamist extremists is akin to the mentality of the Nazis. Separately, a youth was arrested for calling Scientology a dangerous cult. In both instances, it was deemed we had committed religious hate crimes.

Although it is claimed that hate speech influences people to commit hate violence, it’s difficult to demonstrate that anyone has responded to hateful words with violent acts. The causal link is unproven. People don’t kill abortion providers because they heard a hate speech. They commit these crimes because of a zealous belief that abortion is immoral.

I have some sympathy for your narrow definition of hate speech (the Taylor test) and that only repeated hate speech to a wide audience should be criminalized. Perhaps this is where we come close to common ground?

Joyce

In Canada, legal definitions of discrimination encompass hate speech.

I agree that people should not be arrested for the types of insults you describe. But one bad law or the abuse of laws is not an argument against hate speech laws. We are smart enough to craft better definitions of hate speech that protect marginalized groups from discrimination based only on immutable characteristics, which include religious affiliation but not specific religious beliefs or behaviours. Blasphemy must be permitted.

It can be very difficult to prove the causal effects of any law, but we accept living under a system of laws because they serve many other purposes. That said, a US court found that ‘Wanted Posters’ issued in the 1990s by anti-abortion groups for a dozen named abortion providers constituted a true threat because they led to the murders of several of them, even though the posters made no specific threats. People kill abortion providers not simply because they believe abortion is immoral, but because widespread hate speech against doctors creates an atmosphere of perceived acceptance and impunity for their actions.

Hate speech is destructive to society and to its victims. Enduring hatred over years can limit people’s opportunities, isolate them socially, push them into poverty, lead to loss of self-esteem and depression, and endanger their health and safety. It is wrong to diminish the dignity and lives of some people just so others can freely spout hate against them. Leading purveyors of hate (at least) should be prosecuted.

Peter

I share your view that if a person is subjected to prolonged, extreme hatred it is damaging, wrong and should be criminalized. But this amounts to harassment and can be dealt with using anti-harassment laws, without the need for legislation against hate speech.

The abuse of abortion doctors is disgusting but I don’t think it signals that it’s okay to kill them. On the contrary, since murder is a criminal offence with severe penalties, society signals that killing doctors is impermissible. The ‘Wanted’ posters you describe were more than hate speech. They were de facto incitements to murder, which is rightly a crime.

We both agree that hate speech is a bad thing. We differ on how to tackle it. Hate speech laws address a problem after it has happened. I’d prefer to eradicate hate before it’s expressed. Suppressing hate speech by use of the criminal law is, at best, a short-term fix. A better solution is education against hateful ideas.

I’d like to see compulsory school lessons and exams in Equality & Diversity, to challenge all forms of prejudice, starting from Year 1 and continuing every school year. Production of the exam results should be compulsory for all job applications. This would, over time, debunk and diminish bigoted ideas; creating understanding, respect and community cohesion, without the need for hate speech legislation.

People aren’t born hateful. They become hateful. Education can prevent hate. Prevention is better than punishment.

Front cover of New Internationalist magazine, issue 458 This feature was published in the December 2012 issue of New Internationalist. To read more, buy this issue or subscribe.

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  1. #2 hirsch 21 Dec 12

    Why on earth do you regard religious affiliation ad lmmutable? Surely anyone can change their religion. No opinions are immutable and in the long run religions are just sets of ideas. It is the hazy thinking of people like you which makes the institution of hate speech laws so dangerous to freedom.gricalf

  2. #3 Fleur Marshall 24 Jan 13

    Hello I do not favour hate and am not gay, so do not fight for gay rights only human rights, I can't abide people who are paedophiles and call themselves gay, it is a crime and those who cover it up will pay, God Bless the Karma bus

  3. #4 Patricia Marshall 28 Jan 13

    If I physically assault someone I am (rightfully) guilty of a crime, but if I verbally assault someone my behaviour is condoned as ’free speech’, even though verbal assault can be just as injurious as physical assault. The criteria for criminality of verbal assault should be the damage it does to the victim (as is physical assault), rather than subjective arguments about definition.

  4. #5 Starr 19 Feb 13

    I think it all really depends on the particular topic that is being mentioned in the hate speech. If the topic is a vital and highly controversial one and have risks of sparking violence, then yes it should be considered as breaching the law and criminalized. However, if the preachers of the hate speech is simply stating facts that are widely known and just to spread awareness, then they should just be debated upon and not be law offenders. Some hate speeches do instigate hatred that leads to violence but others just spark revulsion and the preachers are often challenged upon, nothing more. Perhaps the criminalizing of hate speeches should be done on a case by case basis or on a country basis.

  5. #6 ari bornstein 22 Apr 13

    They should be allowed to protest because they have freedom of speech and freedom of belief.

  6. #7 Camoron 29 Nov 13

    Patricia,

    Any society run by someone like you would be worse than Nazi Germany. I dare you to prosecute me for your hurt feelings.

  7. #8 Terri Murray 25 Feb 14

    Thank you for a very interesting set of arguments Joyce and Peter. Tolerance, including the questions of whether hate speech should be a crime -- is a subject I teach at A-Level in the UK.
    I will share your arguments with my sixth form students. I've also written extensively on the topic:
    http://www.centerforinquiry.net/news/cfi_announces_free_expression_essay_contest_winners/
    (pdf at bottom of page).

    I was surprised that Joyce described religious affiliation as an ’immutable’ characteristic. It certainly is not. Religious affiliation is something that can, and does, change within a person's lifetime, usually based on exposure to new, and conflicting, ideas. I am living proof of it. Religious affiliation should in no way be protected by laws against 'hate speech' as religion is a set of beliefs, unlike ethnicity, sex, sexual orientation, disability or age.

    Also, I think Peter should have questioned Joyce's assumed causal link between hateful words and violent acts much more vigorously. Implicit in this belief (of a causal link) is the denial of free will, or moral agency. If we are willing to renounce our belief in moral agency then we must also relinquish our belief in moral responsibility. Joyce, and most people, want to hold perpetrators of illegal violent acts like abortion bombings accountable for their choice to act out in this way. But perhaps we shouldn't blame them, if they are mere pawns or weak-willed slaves to other peoples' words? Moreover, which of the word-mongers ought we to prosecute - the musical artists they listened to? The books they read? Which author was it? The filmmaker whose movie influenced them? Which film was it? Mentally competent adults must accept responsibility for which words (among the bewildering variety available to them) they value, give credence to, and choose to follow. How they follow those words is up to them. Not every person that hears a particular pro-life Christian evangelist's words goes out and kills a doctor. Those that do have chosen to, based on their own commitment to give more weight to this preacher's ideas than to other available ideas. If they haven't got a wide enough variety of viewpoints to counter this preacher's bigotry, perhaps censorship and limitations on free speech are to blame.

    The rest of my arguments (which support Peter's side of this debate) are in the above linked essay. Thanks for taking the time to read me.

  8. #9 Joe 08 Apr 15

    I hate white people because they are greedy and oppressive!

    That is a stupid and hurtful statement by me...it is also textbook hate speech by every definition of the term. Should I be put under arrest for saying it? Of course not. I shouldn't say it, but I should absolutely have the right to say it. If you think someone should face criminal penalty for saying something like that, you really don't belong in a modern society.

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This article was originally published in issue 458

New Internationalist Magazine issue 458
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