Monday, March 6, 2017

Hate Speech and Hate Crimes

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.

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