Legislation against hate speech is ill-advised and counter-productive
Not every harmful or undesirable behaviour needs to be legally regulated
White nationalists, neo-Nazis and members of the “alt-right” march through the University of Virginia in Charlottesville. Those inclined to express prejudice and hatred are not likely to stop just because they cannot express it in public. Photograph: Edu Bayer/New York Times
This Friday, the window closes for submissions to the Government’s public consultation on possible improvements to Ireland’s hate speech laws.
The Government has indicated that it intends to strengthen and expand the scope of existing hate-speech legislation, as “one element in a wider suite of measures across all areas of government which are designed to address hatred and intolerance”.
The ostensible motivation behind legal measures against hate speech is laudable. Who, after all, would deny that “threatening, abusive, or insulting conduct. . . intended or likely to stir up hatred”, to use the language of the 1989 Prohibition of Incitement to Hatred Act, is noxious and undesirable?
Yet it does not follow from the fact that a behaviour is harmful or undesirable that it should be legally regulated. There are many forms of socially destructive behaviour that are not regulated by law. For example, we do not legally enforce courtesy, gratitude, sincerity, sobriety or charity.
Another serious objection against hate-speech laws is that their promoters are just as liable to make mistakes as the rest of us
Legislating for such matters is ill-advised and counter-productive. Its likely benefits are paltry compared with its risks, in particular the erection of a Big Brother State with powers of surveillance and control easily moulded to the ideological and political agendas of the controllers.
Of course, few would disagree that hate-inciting speech is reprehensible, and needs to be combated. Hateful and hate-inciting speech, apart from the hurt it causes to targeted individuals, tends to undermine the social fabric and may create a fertile breeding ground for unjust discrimination against targeted groups.
The Government is absolutely right, then, when it says in the context of this public consultation that “tackling hate speech . . . [is] essential to ensure that all people living in Ireland can feel safe, valued and equally respected and protected under law”. But they are absolutely wrong in assuming that legal regulation of hate speech will achieve this goal.
More harm than good
Using the law to regulate hate speech is a bit like erecting a Special Criminal Court to tackle petty theft: while it might have some positive effects, it is an ill-chosen instrument, likely to do more harm than good. The most appropriate instruments for combating hate speech are not laws, but political persuasion, education and social norms.
This is so for several reasons. First, the notion of “incitement to hatred” based on group traits is so extraordinarily vague and contestable that defining it as a justiciable offence gives judges and public officials wide-ranging powers of censorship and exposes the law to rampant ideological and political manipulation.
What one person views as legitimate criticism of group behaviour, another will perceive as an intervention “intended or likely to stir up hatred” against the group in question (to use the language of the 1989 Prohibition of Incitement to Hatred Act).
Those who are inclined to express prejudice and hatred toward certain social groups are not likely to stop feeling hatred and prejudice
For example, if someone publicly satirises the beliefs of Catholics as naive or childish, is that person engaging in legitimate social critique or stirring up hatred against Catholics? When someone queries the legitimacy of sex-change operations for children, is that person defending children’s rights or inciting hatred against transgender persons? Shouldn’t these sorts of thorny question be thrashed out politically rather than settled in a court of law?
Another serious objection against hate-speech laws is that their promoters are just as liable to make mistakes as the rest of us. To believe in the moral infallibility of those tasked with creating or enforcing hate-speech rules would be historically myopic, given the number of gross falsehoods and injustices that have passed for common sense in the past, such as apartheid, slavery and religious persecution.
Third, hate-speech laws are likely to have a chilling effect on public debate about controversial social and moral questions. Because of the inherent vagueness of the notion of hate-inciting speech, its legal prohibition is likely to make citizens leery about publicly expressing criticism of behaviour, actions or beliefs associated with protected groups, even if such criticism is backed up by reasoned argument and is not in fact motivated by hatred.
Without vibrant public debate about difficult social and moral questions, certain conventional ideas will remain largely uncontested in the public sphere, and devolve into lazy platitudes of political correctness. Citizens and their political representatives will be deprived of the opportunities for intellectual and moral growth that come with exposure to opposing opinions and arguments.
Finally, those who are inclined to express prejudice and hatred toward certain social groups are not likely to stop feeling hatred and prejudice just because they cannot express it in public. On the contrary, they are likely to be driven underground, where their feelings of resentment and hostility may continue to simmer and grow, far removed from the scrutiny of public opinion. Ironically, hate-speech legislation may help to forge ghettoed communities brimming over with unvented anger and prejudice.
In public debates about contentious issues, some degree of bitterness and acrimony is par for the course. People are bound to say things, at least occasionally, that others find offensive and unacceptable. That is just the nature of robust civil discourse. A public sphere in which nobody is ever seriously offended is a public sphere that has been infantilised and neutered beyond recognition.
David Thunder is a researcher and lecturer at the University of Navarra’s Institute for Culture and Society in Pamplona, Spain