mark@marktreble.com
It is heinous for an individual to denigrate someone for
being a member of a group (e.g., racial minority, religious minority,
immigrant, atypical sexual orientation, disabled, etc), or to denigrate the
entire group. This is often called “Hate Speech,” and a number of institutions
and government agencies forbid it. I disagree most strongly.
The problems with making any form of speech criminal is that
then all speech is subject to criminalization. This was probably said it best
in his introductory remarks to a workshop on hate speech and incitement at
Columbia University in Spring 2009:
When used in legal parlance, the colloquial expression ‘hate
speech’ seems to presuppose that the state can define with legal precision the
particular forms of content that should be regulated as ‘hate speech’. … I
regard this implicit assumption as questionable … I do not mean to imply that
many clear instances of obvious ‘hate speech’ cannot be identified; I mean only
to stress that a reliable definition of this term, if possible at all, cannot
be taken for granted.
Similar to the doctrine that the freedom to tax is freedom
to destroy, the freedom to define hate speech is freedom to censor anything
whatsoever. If hate speech can be defined by the state, then speaking against
the state can be criminalized. Speech that insults you, or hurts your feelings,
should be controlled by courtesy and not by institutions or governments.
Hate speech is not the same thing as incitement to violence.
When a reasonable and prudent individual hears a call to violence or
oppression, this is subject to censorship. Just as your liberty to swing your
fist ends where my nose begins (attributed to Oliver Wendell Holmes and
others), your liberty to spout hateful words ends where a clear and present
danger of violence begins. Freedom of speech does not apply to shouting Fire in
a crowded theater. This was further refined in 1969 when a Ku Klux Klan member
appealed his conviction for hate speech when he advocated “revengeance” against
racial minorities. The court ruled that advocacy, even when it encourages law
breaking, is protected unless it leads to imminent lawless action.
The concept of hate crimes is even worse. Murder is the
crime, not its motive. Motive can and should be introduced into evidence, and
the jury can and should consider motive when passing sentence. But, the existence
of hate crimes criminalizes thoughts, not actions.
In the early 1990s I
lobbied senior members of the U.S. military on behalf of LGBTQ soldiers.
Homosexual actions were against military regulations; so was being a
homosexual. Bank robbery is a crime; wanting to rob a bank is not.
Criminalizing thought is as far from our Constitution as one can get. All hate
crime statutes criminalize thought, which should be anathema to civil
libertarians everywhere. My efforts and those of others resulted in “Don’t Ask,
Don’t Tell,” which was as much change as the military could absorb at the time.
Hate speech
regulation and “safe spaces” established by institutions are attacks on the
marketplace of ideas. The answer to hate speech is to prove its premise wrong.
That is how the marketplace of ideas functions.
Hate crimes
established by statute are clear criminalization of thought. The act, not the
thinking behind it, should be illegal. Motive can be cited as part of the proof
that the individual committed the crime, and can be cited for the jury to
consider when passing sentence. But, to make any form of thinking illegal must
be fought by all. When the thought police are empowered, civil society faces an
existential threat.
