There is an adage in English that I am sure most of you know. It goes like this, “sticks and stones may break my bones, but words will never hurt me.” The intention of this is to help teach children to refrain from physical violence after being taunted or in some other way angered. It is reported to have first appeared in 1862, in a book published by the African Methodist Episcopalian Church. This occurred, of course, due to the horrible racism that was present, and is still present today in many parts of our society. But that is not why I am writing this. What I want to talk about is hate speech. This was prompted by a conversation that I had with someone today, who, like many others do, believes that hate speech should be banned, and while I agree with all of them sentimentally, I find this an inherently problematic view to take. I hope to make why I believe this evident in this piece.
I think that we can all agree that hate speech is abhorrent. Hate speech, according to the American Bar Association, is defined as speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits. Should it be discouraged? Yes! Absolutely, one-hundred percent, unequivocally, yes! However, by looking at this definition, I hope that you can see some of the problems that occur when we talk about banning hate speech.
Now, there are a few things to clear up when we are talking about hate speech. First, speech that is directed towards an individual, that is meant to or likely to provoke them, is not hate speech. That is speech that is inciting violence, and it is illegal. This limitation on freedom of speech was decided in 1942 by the Supreme Court, and it is known as the Fighting Words Doctrine. People do have to right to say things that the listener disagrees with and that they find offensive and hateful. This is because of several reasons, which I will be covering shortly.
Limitations on freedom of speech is not limited to the Fighting Words Doctrine, I might add. There are also limitations to speech for speech that is not directed at an individual, but that is conductive to creating disorder, violence, or harm to a person or a group of people. The classic example of this is yelling “FIRE!” in a movie theater. People are likely to get hurt as a result of this speech, and therefore, it is limited. This also applies to a person instructing others to in any way harm another individual, or a group of people.
Here, we see the distinction starting to occur. I am sure you have all heard the phrase, “actions speak louder than words?” Well, it is true—especially here. Saying a racial or sexist epithet, or some other sort of derogatory statement is reprehensible. It is disgusting. But, the question is this: does that do tangible harm? Remember, we are not talking about fighting words, we are talking about more general hate speech. Since the speech in this case is not inciting violence or other illegal activity, it must be allowed. For this, I will look to JS Mill, a political theorist who wrote extensively on the topic of liberty.
“If all of mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
The reason for this line of thinking is simple, and it is derived from a point that Mill makes earlier, which is that the sole reason that government should interfere with the lives of individuals in a society (by this, I mean limit their liberties), is for self-protection of either the individual, another individual, a group of people, or the society as a whole. Civil liberties are a fundamental right of all people, which is why they should not be infringed upon unless absolutely necessary. Being under common law, precedent is key. The limitation of hate speech could later be used to justify the banning of other forms of speech. I would like to turn back to Mill though.
In addition to the argument about restricting liberties, there is also the argument that is made by Mill that one of the most important things that exists in the dialogue that society has about ideas and opinions. In this, there is no such thing as an opinion or belief that is not valuable. Even the most horrible of beliefs have value, at the very least, in being an opportunity to teach, and to correct an opinion; or to act as a check to the tyranny that exists when thoughts and ideas cannot be questioned, regardless of how good they may appear to be.
Having covered those points in the banning of hate speech, I would next like to move on to the practicality of banning it, or rather, problems that will be had with legislating this proposed ban. One of two scenarios will occur.
The first is the scenario in which the legislation around the banning of hate speech is extremely specific. In this scenario, there are extremely specific phrases and words that are banned. This is problematic for two reasons. First, there is the issue of it not being comprehensive enough. In this scenario, it is likely that certain aspects of hate speech will be looked over, or forgotten. In addition, it is likely that those who use hate speech will adapt to the changes, and in turn, new phrases will become hateful. In this sense, like technology, hate speech will outpace the law. There is also the issue here of the banning specific phrases and words defining what constitutes hate and hate speech. Say that, for example, many phrases and words that are derogatory to blacks, Latinos, and women are banned. This still leaves open hate directed at Asians, Caucasians, Men, people with disabilities, etc. Essentially, by banning hate speech in this way, we are implicitly condoning the forms of hate speech that is not being expressly banned. Or, if it is not condoning those forms of hate speech, it is most certainly a microcosm that is allowed continued existence and flourishing. This surely is not the answer.
The second scenario is one in which the legislation around the banning of hate speech is extremely vague. In this scenario, “hate speech” is banned. This is problematic mostly because of how open to interpretation this statute would be, due to how vague it would be. In this scenario, if someone exclaimed, “I hate Mexicans!” for example, would that be hate speech? Would “Mexicans are bad! They are stealing our jobs!” be hate speech? Would “I don't like black people,” be considered hate speech? How about, “God, this old person is so fucking slow. I hate them so much.” ? I think we can generally agree that these are awful things to say, but are they hate speech? Should people be explicitly banned from saying these things? Another thing to consider. Say that you have a person who arrested for hate speech, and the situation is brought to court. Now, say that this area is one that is racist, and most of the people on the jury agree with the person who is being charged with hate speech. In this case, the chances the person charged will be found guilty is small. This is called jury nullification, and it was used in the South to let people guilty of lynching walk free. Of course, if most people in the area shared a general sentiment like that, there is also the possibility that a person saying hate speech would not be arrested in the first place, because the definition under the law would be vague enough that the police officer would have enough leeway to say that in fact an incident of hate speech did not occur. This also happened in the South during the days of slavery.
These are some of the reasons why the banning of hate speech is problematic. While we do need to do everything as individuals, and as a society within our power to discourage hate speech, and hate in general, in any form in which it may manifest itself, we must always bare in mind civil liberties. Essentially, we need to combine the libertarian and the communitarian perspectives. We need to at a governmental level allow for the freedom on speech that everyone is entitled to for being a member of society, while at the same time at a social level work to eradicate the use of hate speech from our society.