MORE THOUGHTS ON HATE SPEECH AND THE LAW

More from my interview with Peter Molnar on hate speech regulation, the whole of which will be published in the forthcoming book Regulating Hate Speech: Content, Context, and Remedies (Cambridge University Press):

Peter Molnar: Do you think that violent acts committed by hateful motivation deserve stricter punishments?

Kenan Malik: I accept that intentions are not just morally but also legally relevant, and that different intentions can result in the imposition of different sentences. But when we make a distinction between, say, murder and manslaughter, we are making a distinction based on the kind or degree of harm the perpetrator intended. When it is suggested, however, that a racist murderer should receive a greater punishment than a non-racist murderer, a different kind of distinction is being drawn. The distinction here is not between the degrees of harm intended – in both cases the killer intended to kill – but between the thoughts that were in the minds of the respective killers. The distinction is between someone who might be thinking, ‘I am going to kill you because I hate you because you looked at me the wrong way’ and someone who might be thinking ‘I am going to kill you because I hate you because you are black.’

What is being criminalized here is simply a thought. And I am opposed to the category of thought crimes. Racist thoughts are morally offensive. But they should not be made a criminal offence.

Proponents argue that raising the punishment for hate crimes will (a) protect those whose are abused or attacked simply because they belong to a particular group and (b) send a message about the kind of society we wish to promote. But that is not fundamentally different from the argument for the criminalization of hate speech. And I am opposed to it for the same reason that I am opposed to the criminalization of hate speech.

PM: But does it not make a substantial difference that one might be able to avoid being attacked by not looking at her/his potential attackers the wrong way, while one cannot change her/his skin color?

KM: To the victim, such a distinction is, of course, of little comfort. There is also an implication here that some victims cannot help being victims, while others could, by having behaved differently, have avoided their misfortune. While this is not the same as suggesting that some victims ask to be victims, it is moving in that direction, and we should be careful about how far down this road we go.

The real issue remains the same: should murderers with racist intent be punished to a greater degree than those with other kinds of malicious intent? I accept that racism is a pernicious social evil that needs specifically to be combated. But I reject the idea that we can, and should, combat racism by outlawing racist thoughts. If you accept, as I do, that thoughts in themselves – even racist thoughts – should not be legally prohibited, then you have to accept that a racist thought that leads to murder should not be seen as legally different from a non-racist thought that leads to murder.

PM: How, in your view, could we improve the social (non-legal) responses to ‘hate speech’?

KM: The whole point of free speech is to create the conditions for robust debate. And one reason for such robust debate is to be able to challenge obnoxious views. To argue for free speech but not to utilize it to challenge obnoxious, odious and hateful views seems to me immoral. It is morally incumbent on those who argue for free speech to stand up to racism and bigotry.

At the same time, however, we should be clear that what often legitimizes bigotry are the arguments not of the bigots but of mainstream politicians and intellectuals who denounce bigotry and yet accept bigoted claims. Throughout Europe mainstream politicians have denounced the rise of the far right. And throughout Europe mainstream politicians have adapted to far-right arguments, clamping down on immigration, pursuing anti-Muslim measures, and so on. They have sometimes even adopted the language.  In his first speech at the Labour Party conference after gaining the top office, former British Prime Minister Gordon Brown talked of ensuring ‘British jobs for British workers’, a slogan first popularized by the neo-fascist National Front. The National Front had twinned it with a second slogan: ‘Three million blacks. Three million unemployed. Kick the blacks out.’

Gordon Brown was, of course, not guilty of hate speech. But his use of that phrase probably did far more to promote xenophobic sentiment than any amount of ‘hate speech’ by far-right bigots. Challenging bigotry requires us to challenge the mainstream ideas that give it sustenance, and to campaign against those discriminatory social practices and laws that help make the arguments of the racists, the sexists and the homophobes more acceptable.

PM: Do you agree with those such as Robert Post and Ronald Dworkin who argue that banning ‘hate speech’ undermines, or at least weakens, the legitimacy of a democracy?

KM: Free speech and democracy are intimately linked. Without free speech there is no democracy. That is why any restriction on speech must be kept to the absolute minimum.

There are two ways in which banning hate speech undermines democracy. First, democracy can only work if every citizen believes that their voice counts. That however, outlandish, outrageous or obnoxious his or her belief may be, they nevertheless have the right to express it and to try to win support for it. When people feel they no longer possess that right, then democracy itself suffers, as does the legitimacy of those in power.

Not just the banning of hate speech but the very categorization of an argument or a sentiment as ‘hate speech’ can be problematic for the democratic process. I am in no doubt that some speech is designed to promote hatred. And I accept that certain arguments – like the direct incitement of violence – should indeed be unlawful. But the category ‘hate speech’ has come to function quite differently from prohibitions on incitement to violence.  It has become a means of rebranding obnoxious political arguments as immoral and so beyond the boundaries of accepted reasonable debate.  It makes certain sentiments illegitimate, thereby disenfranchising those who hold such views.

And this brings me to the second point as to why the banning of hate speech undermines democracy.  Branding an opinion as ‘hate speech’ does not simply disenfranchise those holding such a view, it also absolves the rest of us of the responsibility of politically challenging it. Where once we might have challenged obnoxious or hateful sentiments politically, today we are more likely simply to seek to outlaw them.

In 2007, James Watson, the co-discoverer of the structure of DNA, claimed of Africans that their ‘intelligence is not the same as ours’ and that blacks are genetically intellectually inferior. He was rightly condemned for his arguments. But most of those who condemned him did not bother challenging the arguments, empirically or politically. They simply insisted that it is morally unacceptable to imagine that blacks are intellectually inferior.   Britain’s Equality and Human Rights Commission studied the remarks to see if it could bring any legal action. London’s Science Museum, at which Watson was to have delivered a lecture, cancelled his appearance, claiming that the Nobel Laureate had ‘gone beyond the point of acceptable debate.’ New York’s Cold Spring Harbor Laboratory, of which Watson was director, not only disowned Watson’s remarks but forced him eventually to resign.

I fundamentally disagree with Watson. Indeed I have written more than one book challenging such ideas, and have many times publicly debated their supporters. But I also think that it was as legitimate for Watson to have expressed his opinion as it is for me to express mine, even if I believe his assertion was factually wrong, morally suspect, and politically offensive. Simply to dismiss Watson’s claim as beyond the bounds of reasonable debate is to refuse to confront the actual arguments, to decline to engage with idea that clearly have considerable purchase, and therefore to do disservice to democracy.

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