Should hate speech be a crime?

Debate: Joyce Arthur v Peter Tatchell

New Internationalist – December 2012

Joyce Arthur is a Canadian feminist
Peter Tatchell is a UK human rights campaigner

Joyce Arthur 1
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 requires 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 (e.g., bans on threats, defamation, false advertising, noise around hospitals or schools, etc.)

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 U.S. prove that words do not have to explicitly incite violence to cause violence. Hate speech promotes division and intolerance, and 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 peoples’ dignity and human rights should be up for debate in the public square and “may the best argument win.”

Peter Tatchell 1
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 criminalised.

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

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. Criminalising 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 criminalised.

Joyce Arthur 2
Hate speech is a public expression of discrimination against a vulnerable group (based on race, gender, sexual orientation, 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 United States 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 scrap them.

Peter Tatchell 2
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.

You suggest the police and courts are capable of distinguishing between hate speech and merely offensive speech. This is not true in the UK, 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 commits hate violence, it’s difficult to demonstrate that anyone has responded to hateful words with violent acts. The casual 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 criminalised. Perhaps this where we come close to common ground?

Joyce Arthur 3
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 U.S. court found that “Wanted Posters” issued in the 1990’s 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 Tatchell 3
I share your view that if a person is subjected to prolonged, extreme hatred it is damaging, wrong and should be criminalised. 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.