HATE SPEECH AND THE LAW
February 14, 2011 § 2 Comments
I have just given a long interview for a forthcoming book on hate speech and the law called Regulating Hate Speech: Content, Context, and Remedies. Co-edited by Peter Molnar and Michael Herz, the book has developed out of a series of conferences held at the Central European University, in Budapest, and at New York’s Cardoza School of Law, which explored legal complexities surrounding hate speech regulation (I gave a paper at the CEU conference). The book will be published later this year by Cambridge University Press, but here is a flavour of the interview:
Peter Molnar: Would you characterize some speech as ‘hate speech’ and do you think that it is possible to provide a reliable legal definition of ‘hate speech’?
Kenan Malik: I am not sure that ‘hate speech’ is a particularly useful concept. Much is said and written, of course, that is designed to promote hatred. But it makes little sense to lump it all together in a single category, especially when hatred is such a contested concept.
In a sense hate speech restriction has become a means not of addressing specific issues about intimidation or incitement but of enforcing general social regulation. This is why if you look at hate speech laws across the world there is no consistency about what constitutes hate speech. Britain bans abusive, insulting and threatening speech. Denmark and Canada ban speech that is insulting and degrading. India and Israel ban speech that hurts religious feelings and incites racial and religious hatred. In Holland it is a criminal offence deliberately to insult a particular group. Australia prohibits speech that offends, insults, humiliates or intimidates individuals or groups. Germany bans speech that violates the dignity of, or maliciously degrades or defames, a group. And so on. In each case the law defines hate speech in a different way.
One response might be to say: let us define hate speech much more tightly. I think, however, that the problem runs much deeper. Hate speech restriction is a means not of tackling bigotry but of rebranding certain, often obnoxious, ideas or arguments as immoral. It is a way of making certain ideas illegitimate without bothering politically to challenge them. And that is dangerous.
PM: Setting aside legal restriction, would you differentiate between claims (that target certain groups) that should be challenged in political debate and claims (that also target certain groups) that should be simply rejected as so immoral that they don`t deserve an answer other than the strongest rejection and moral condemnation?
KM: There are certainly claims that are so outrageous that one would not wish to waste one’s time refuting them. If someone were to suggest that all Muslims should be tortured because they are potential terrorists or that rape is acceptable, then clearly no rational argument will ever change their mind, or that of anyone who accepts such claims.
Much of what we call hate speech consists, however, of claims that may be contemptible but yet are accepted by many as morally defensible. Hence I am wary of the argument that some sentiments are so immoral they can simply be condemned without being contested. First, because such blanket condemnations are often a cover for the inability or unwillingness politically to challenge obnoxious sentiments. And, second, because in challenging obnoxious sentiments, we are not simply challenging those who spout such views. We are also challenging the potential audience for such views. Dismissing obnoxious or hateful views as not worthy of response may not be the best way of engaging with such an audience. Whether or not an obnoxious claim requires a reply depends, therefore, not simply on the nature of the claim itself but also upon the potential audience for that claim.
PM: What do you think about proposals for restricting defamation of religion?
KM: It is as idiotic to imagine that one could defame religion as it is to imagine that one could defame politics or literature. Or that the Bible or the Qur’an should not be criticised or ridiculed in the same way as one might criticise or ridicule The Communist Manifesto or On the Origin of Species or Dante’s Inferno.
A religion is, in part, a set of beliefs – about the world, its origins, and humanity’s place in it – and a set of values that supposedly derive from those beliefs. Those beliefs should be treated no differently from other sets of beliefs, and values that derive from them. I can be hateful of conservatism or communism. It should be open to me to be equally hateful of Islam and Christianity.
Proponents of religious defamation laws suggest that a religion is not just a set of beliefs but an identity, and an exceptionally deeply felt one at that. It is true that religions often form deep-seated identities. But then, so do many other beliefs. Communists were often wedded to their ideas even unto death. Many racists have an almost visceral attachment to their beliefs. Should I indulge them because their views are so deeply held? And while I don’t see my humanism as an identity with a big ‘I’, I would challenge any Christian or Muslim to demonstrate that my beliefs are less deeply held than theirs.
Freedom of worship – including the freedom of believers to believe as they wish and to preach as they wish – should be protected. Beyond that religion should have no privileges. Freedom of worship is, in a sense, another form of freedom of expression – the freedom to believe as one likes about the divine and to assemble and enact rituals with respect those beliefs. You cannot protect freedom of worship, in other words, without protecting freedom of expression. Take, for instance, Geert Wilders’ attempt to outlaw the Qur’an in Holland because it ‘promotes hatred’. Or the investigation by the British police a few years ago of Iqbal Sacranie, former head of the Muslim Council of Britain, for derogatory comments he made about homosexuality. Both are examples of the way that defense of freedom of religion is inextricably linked with defense of freedom of speech. Or, to put it another way, in both cases had the authorities been allowed to restrict freedom of expression, it would have had a devastating impact on freedom of worship.
That’s why the attempt to restrict defamation of religion is, ironically, an attack not just on freedom of speech but on freedom of worship too – and not least because one religion necessarily defames another. Islam denies the divinity of Christ, Christianity refuses to accept the Qur’an as the word of God. Each Holy Book blasphemes against the others.
One of the ironies of the current Muslim campaign for a law against religious defamation is that had such a law existed in the seventh century, Islam itself would never have been born. The creation of the faith was shocking and offensive to the adherents of the pagan religion out of which it grew, and equally so to the two other monotheistic religions of the age, Judaism and Christianity. Had seventh-century versions of today’s religious censors had their way, the twenty-first-century versions may still have been fulminating against offensive speech, but it certainly would not have been Islam that was being offended.
At the heart of the debate about defamation of religion are actually not questions of faith or hatred, but of political power. Demanding that certain things cannot be said, whether in the name of respecting faith or of not offending cultures, is a means of defending the power of those who claim legitimacy in the name of that faith or that culture. It is a means of suppressing dissent, not from outside, but from within. What is often called offence to a community or a faith is actually a debate within that community or faith. In accepting that certain things cannot be said because they are offensive or hateful, those who wish to restrict free speech are simply siding with one side in such debates – and usually the more conservative, reactionary side.
PM: Do you support content-based bans of “hate speech” through the criminal law, or do you instead agree with the American and Hungarian approach, which permits prohibition only of speech that creates imminent danger?
KM: I believe that no speech should be banned solely because of its content; I would distinguish “content-based” regulation from “effects-based” regulation and permit the prohibition only of speech that creates imminent danger. I oppose content-based bans both as a matter of principle and with a mind to the practical impact of such bans. Such laws are wrong in principle because free speech for everyone except bigots is not free speech at all. It is meaningless to defend the right of free expression for people with whose views we agree. The right to free speech only has political bite when we are forced to defend the rights of people with whose views we profoundly disagree.
And in practice you cannot reduce or eliminate bigotry simply by banning it. You simply let the sentiments fester underground. As Milton once put it, to keep out “evil doctrine” by licensing is “like the exploit of that gallant man who thought to pound up the crows by shutting his Park-gate.”
Take Britain. In 1965, Britain prohibited incitement to racial hatred as part of its Race Relations Act. The following decade was probably the most racist in British history. It was the decade of “Paki-bashing” when racist thugs would seek out Asians to beat up. It was a decade of firebombings, stabbings and murders. In the early eighties I was organizing street patrols in East London to protect Asian families from racist attacks.
Nor was the problem was simply thugs. Racism was woven into the fabric of public institutions. The police, immigration officials – all were openly racist. In the twenty years between 1969 and 1989, no fewer than 37 blacks and Asians were killed in police custody – almost one every six months. The same number again died in prisons or in hospital custody. When in 1982, cadets at the national police academy were asked to write essays about immigrants, one wrote, “Wogs, nignogs and Pakis come into Britain take up our homes, our jobs and our resources and contribute relatively less to our once glorious country. They are, by nature, unintelligent. And can’t at all be educated sufficiently to live in a civilised society of the Western world.” Another wrote that “all blacks are pains and should be ejected from society” . So much for incitement laws helping to create a more tolerant society.
Today, Britain is a very different place. Racism has not disappeared, nor have racist attacks, but the open, vicious, visceral bigotry that disfigured Britain when I was growing up has largely ebbed away. It has done so not because of laws banning racial hatred but because of broader social changes and because minorities themselves stood up to the bigotry and fought back.
Of course, as the British experience shows, hatred exists not just in speech but also has physical consequences. Isn’t it important, critics of my view ask, to limit the fomenting of hatred to protect the lives of those who may be attacked?
In asking this very question they are revealing the distinction between speech and action. Saying something is not the same as doing it. But, in these post-ideological, postmodern times, it has become very unfashionable to insist on such a distinction.
In blurring the distinction between speech and action, what is really being blurred is the idea of human agency and of moral responsibility. Because lurking underneath the argument is the idea that people respond like automata to words or images. But people are not like robots. They think and reason and act upon their thoughts and reasoning. Words certainly have an impact on the real world, but that impact is mediated through human agency.
Racists are, of course, influenced by racist talk. But it is they who bear responsibility for translating racist talk into racist action. Ironically, for all the talk of using free speech responsibly, the real consequence of the demand for censorship is to moderate the responsibility of individuals for their actions.
Having said that, there are clearly circumstances in which there is a direct connection between speech and action, where someone’s words have directly led to someone else taking action. Such incitement should be illegal, but it has to be tightly defined. There has to be both a direct link between speech and action, and intent on the part of the speaker that that particular act of violence be carried out.
Incitement to violence in the context of hate speech should be as tightly defined as in ordinary criminal cases. In ordinary criminal cases, incitement is, rightly, difficult legally to prove. The threshold for liability should not be lowered just because hate speech is involved.