Free Speech Vs. Hate Speech

Here is another topic which is in desperate need of clarity. From the left, any speech which causes emotional harm is hateful and must be regulated. From the Right, you have the right to say anything you like, whenever you like and however you like, provided that it is not a call to action. From firsthand experience, the argument over what is and isn’t free speech summons many ideas and often, these ideas lead to conflict when they are presented together. The Right argues that speech is speech, no matter how others feel about it. On the left, any ideas which cause emotional, psychological or social status trauma, is in need of being condemned and regulated. The truth of this matter is quite difficult to find and different opinions arise whenever the First Amendment is concerned. What is to be done in a manner which is written on paper, taking it at face value that our founding fathers wrote it down or offer our own context? It is crucial that this matter is resolved so that we may move on to more important matters. Once again, I have my own personal bias towards such matters, but will try my best to hold any and all of my opinions until the conclusion.

            First, a little backstory. On 16 December 1966, the United Nations General Assembly proposed The International Covenant on Civil and Political Rights (ICCPR), a multicultural treaty which declared “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law"[i]. Though this is a declaration which has been enforced since 23 March 1976, nearly every country which has signed and ratified the ICCPR have different interpretations of it. Laws against hate speech can be divided into two categories: those which intend to preserve public order and those intended to protect human dignity. Those designed to protect public order require a higher threshold be violated, so they are not specifically enforced frequently. For example, while in Northern Ireland only one person has been found guilty of violation of their hate speech laws while Hate Speech laws in Canada, Denmark, France, Germany and the Netherlands tend to be more frequently enforced[ii].

            The laws regarding hate speech throughout the world can be divided into two types: those intended to preserve public order and those intended to protect human dignity. This is something for which I do agree with and is a point which I will give hate speech ideologues, to a point. Preserving public order is essential in the hopes to retain order in the modern era. Iceland’s hate speech law states that action will be taken when “Anyone who in a ridiculing, slanderous, insulting, threatening or any other manner publicly assaults a person or a group of people on the basis of their nationality, skin colour, race, religion or sexual orientation, shall be fined or jailed for up to 2 years”[iii]. In the Netherlands,  Article 137c proclaims that "He who publicly, orally, in writing or graphically, intentionally expresses himself insultingly regarding a group of people because of their race, their religion or their life philosophy, their heterosexual or homosexual orientation or their physical, psychological or mental disability, shall be punished by imprisonment of no more than a year or a monetary penalty of the third category”[iv]. These two examples simply regulate bigotry and hold those who discriminate others accountable for their actions by law and offer punishment for their actions. These are just two of the many forms of hate speech laws all around the world which make the attempt to ensure that order is kept throughout the populous.

However, the many definitions of hate speech causes issues among those outside of governments all over the world. For one, there is no ubiquitously accepted hate speech. Someone may insult someone openly in America and not be punished. However, the implying of the same insult could be made in Canada and would lead to imprisonment if you insulted "any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression or mental or physical disability"[v]. However, if you were insulting someone due to a mental or physical disability in Denmark, you’re off the hook according to their hate speech law[vi]. You could insult Islam in both of the previous countries, provided you didn’t point out anyone when mentioning the faith, but would face some issues in Jordan[vii]. One of the biggest concerns with hate speech laws regulated with legal action and facing criminal punishment is this: nearly EVERY form of speech can be twisted out of context and can ruin people’s lives.

Before I give my opinion, I will point out that I have left social media out of this conversation in its entirety. The reason that I have is a simple one: social media companies are their own entities and may allow or disallow whatever they wish, as is their right. In the same manner, I do believe that there needs to be certain laws concerning speech? I do. However, remember those two goals of hate speech laws from earlier? They are:

·         those intended to preserve public order

·         those intended to protect human dignity

Of the first point, there are several points for which I believe all those on either side of this issue may agree upon. For one, you cannot threaten to kill, assault or call to violence against others for which you do not agree with. Second, you cannot call towards any action which may cause violence, ergo the “can’t yell fire in a theatre when there is no fire”. This is speech which causes violence, but does not include a jackass who says something which offends someone.

This is where I get into where they lose me. What protects human dignity? Is the human dignity line when a racist comment is said? Is the human dignity ideal violated when a “microaggression” is spoken? Is it when someone who is across the room from you points, making you feel uncomfortable and singled out? The best way that I can demonstrate my thought process on this matter would be to provide a script, pointing out where and when I believe someone could be in violation of hate speech(DISCLAIMER: This example is graphic, but only to show what I believe and what I don’t believe is considered a crime and what isn’t. You’ve been warned!):

Neo-Nazi: I hate chinks, pollocks and Negros.

Asian man: Why are you so mean?

Neo-Nazi: Go back to the rice patty and leave this country!

Jewish woman: Why would you support mass genocide?

Neo-Nazi: Because Hitler was a great man and the world would’ve been better without Israel.

Black man: What did we ever do to you?

Neo-Nazi: Get back to the cotton fields!

Bystander: (pulls out baseball bat) I’m gonna kick your ass!

            Let’s review this one act play. Did the Neo-Nazi say hurtful things? Absolutely! Did he bring up old wounds of the past and make the entire populous of White people look terrible? Without a shadow of a doubt, yes! However, was the bystander in the wrong when he threatened the Neo-Nazi with violence? Actually, yes. This is where I believe people get confused when it comes to hate speech laws. The racist bigot can say whatever he likes, at least in the United States, without any repercussions short of being removed from wherever he is currently vomiting this venom and forever be labeled as a racist piece of dirt. Why is he allowed to say these things without any legal ramifications? Because of The First Amendment. He has every right to defame himself and be looked down upon by every decent human being. He is allowed to bury himself in the court of public opinion. Could he gain some supporters if he is still allowed to spread such bile? Probably, but minorities always lose if their ideas are an antonym of the view of the majority.

            This is the problem with this world today. If someone does not like what others say, then they are evil. If they are evil, they must be judged by the court of public opinion, by the court of their peers and family and in the courthouse. If ideas idolized through this concept are taken to the extreme, then everyone on Earth would find themselves in the hot seat, no matter what they intended. In this way, a compliment could be seen as “cat-calling”. Instead of policing our morals and values, we will have to look over every word we say, where we say them and how loud or soft we must say such words. By building a basis of legal proceedings in this manner, everyone will be guilty of causing someone, somewhere, somehow, an offense due to our words. What kind of a curmudgeon would place such an albatross around everyone on Earth’s neck? Must we carry around a checklist on our words, ensuring that we always stay to a metric to avoid jail time for what we say? Calls to actions are violence; taking offense by taking someone’s speech out of context is ignorance.  

[i] International Covenant on Civil and Political Rights, Article 20

[ii] Bell, Jeannine (Summer 2009). "Restraining the heartless: racist speech and minority rights". Indiana Law Journal. 84: 963–79. Retrieved 9 October 2014.

[iii] Article 233 a.

[iv]  Dutch penal code – article 137c

[v] "Consolidated federal laws of canada, Criminal Code". laws-lois.justice.gc.ca. Legislative Services Branch.

[vi] Danish Penal code, Straffeloven, section 266 B.

[vii] "Jordan, Combined reports submitted for 1999, 2001, 2003, 2005, and 2007", Reports submitted by States parties under article 9 of the Convention on the Elimination of All Forms of Racial Discrimination, Committee on the Elimination of Racial Discrimination, United Nations, 21 September 2011, accessed 13 September 2012