WHY HATE SPEECH SHOULD NOT BE BANNED

I gave an interview last year to Peter Molnar for a book on the regulation of hate speech that he was editing with Michael Herz. The book comes out of a series of conferences and seminars organised by New York’s Cardozo School of Law and the Central European University in Budapest. (I presented a paper at a seminar in Budapest). Other contributors include Jeremy Waldron, Ronald Dworkin,  Kwame Anthony Appiah, Nadine Strossen and Bhikhu Parekh. The book is finally published this month under the pithy title of The Content and Context of Hate Speech: Rethinking Regulation and Responses . And here is the interview.

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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.

‘YOU CANNOT TAKE AWAY THE RIGHT OF FREE SPEECH, NO MATTER HOW VILE’

The Westboro Baptist Church is among the nastiest of the nutty, publicity-demanding evangelical churches that litter the American landscape. Its leader Fred Phelps makes Pastor Terry Jones seem positively calm, measured and rational. Phelps is deeply anti-Semitic, having in 1996 organized a picket of Washington’s Holocaust Memorial Museum claiming that

Whatever righteous cause the Jewish victims of the 1930s–40s Nazi Holocaust had, (probably minuscule, compared to the Jewish Holocausts against Middle Passage Blacks, African Americans and Christians—including the bloody persecution of Westboro Baptist Church by Topeka Jews in the 1990s), has been drowned in sodomite semen. American taxpayers are financing this unholy monument to Jewish mendacity and greed and to filthy fag lust.

Phelps has also organized pickets outside Catholic churches describing Catholics as ‘vampires’ and ‘paedophiles’.

Westboro’s principal hatred, however, is of gays. Its main website (which currently appears to be down) is called GodHatesFags.com. It claims that all the ills in the world are linked to the spread of homosexuality and demands that homosexuality should be made a capital crime.  The Church has taken to picketing funerals of soldiers killed in Iraq with placards proclaiming ‘God Hates Fags’, ‘Thank God for Dead Soldiers’ and ‘Thank God for 9/11’. ‘Our attitude toward what’s happening with the war’, Phelps has said,’ is [that] the Lord is punishing this evil nation for abandoning all moral imperatives that are worth a dime.’

WORDS AND DEEDS. AND THE SPACE BETWEEN

I have had a lot of responses to the extracts from my interview on hate speech and the law, many of which argue that speech that does not directly incite violence but creates a climate in which such violence becomes more probable should be banned. As one respondent put it in a comment thread:

If I say that all Moslems, Catholics, homosexuals, vegans, and so on, are terrorists and a danger to the nation, I’m not inciting DIRECTLY to violence, but indirectly I’m justifying it.

The idea of ‘indirect incitement’ is one that policy makers have enthusiastically adopted in recent years. As I’ve noted in an essay for Index on Censorship, ‘Over the past decade, the government has used the law both to expand the notion of ‘hatred’ and to loosen the meaning of ‘incitement’. This expansion has become ‘One of the most pernicious means by which restrictions on free speech have grown tighter.’

‘Indirect incitement’ is a dangerous concept because it erodes the distinction between words and deeds. Or, rather, it attempts to create a link between words and deeds that in most cases does not exist. Once you argue that words should be banned not because they directly incite an action but because they create a climate within which others may act in a particular fashion, then you are on dangerous ground.

THE MORAL DEMANDS OF FREE SPEECH

In Notre Dame Philosophical Reviews there is a discussion of a book by Abigail Levin on The Cost of Free Speech that takes a different view to hate speech than I do:

For the most part, liberals maintain that unless some speech is proven to cause demonstrable harm, the state must refrain from interfering in liberty of expression on pain of violating neutrality – that is, on pain of endorsing one set of views, values, or a conception of the good over others. This gives rise to an embarrassing tension for liberals who acknowledge that social inequalities like racism, sexism, and homophobia are in no small part due to the exercise of expressive liberties. For, how can a resolutely neutral state maintain a commitment to both equality and liberty? Levin’s primary thesis is that liberal egalitarians are mistaken to think that the state ought (and thus can) remain neutral with respect to certain kinds of speech. Indeed, she argues, the liberal egalitarian commitment to treating citizens with equal concern and respect entails that the state ought to use its power qua source of speech actively to combat hate speech and pornography.

For egalitarians, the question of free speech does indeed pose moral issues. It is not possible simply to argue for freedom of expression. As I suggested in my interview with Peter Molnar, those who campaign for free speech from a radical perspective impose upon themselves a moral obligation:

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.

HATE SPEECH AND THE LAW

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.