In Defense of "Hate Speech"

Project Trawler, a three-year study of Internet crime, foresees a struggle between criminals and those trying to prevent illegal activities over the mastery of Net technology and information.
It says crimes currently being committed include paedophilia, pornography, hacking, hate sites, fraud and software piracy.

Notice how neatly "hate sites" are bundled together with fraud and piracy as "crimes."

In November of 1999, amazon.com caved in to legal pressure to cease selling English translations of Mein Kampf to customers in Germany. (Sales of the original German were already banned.) The Wiesenthal Center, which boasted about its role in this act of censorship, evidently believes that people can't be trusted to make up their own minds.

There are many ideas which are in indeed repugnant. Many people, including me, would include among these the idea that a person's worth depends upon his ancestry. I would also include the idea that there is a God who thinks people's worth depends upon whether they worship him. But I do not claim the right to jail people for these ideas.

Many reasons have been given for not criminalizing the advocacy of any idea. These include:

• that open debate is necessary to the establishment of truth.
• that governments will inevitably abuse the power to prosecute ideas, inventing charges and twisting people's words in order to convict them.
• that people can't agree on which ideas should be criminalized. When the defining term is based on an emotion ("hate"), there is no limit on the subjectivity with which the laws can be applied.
• that driving a bad idea underground gives it an aura of martyrdom, and allows its advocates to claim that those who suppress it can't afford to let it be heard.

Advocating racism or Communism or vegetarianism or stoicism is not an act of force nor a direct threat against any person. However irrational or disturbing it may be, it is a peaceful act. Arresting a person and jailing him, on the other hand, is not a peaceful act; it is the use of armed force. Thus, hate speech laws provide for the initiation of force against people who are acting peacefully and not harming anyone.

Force cannot determine the truth or falsehood of an idea. Only reason can do that; and reason can be exercised only by individuals. A government cannot make people reason or stop reasoning. It can only leave them free to express their ideas (reasoned or unreasoned) or forcibly prevent them from doing so.

When force controls the debate, the question is not: Is this idea true or false? It is only: Is this idea permitted or forbidden? We have seen the results repeatedly in history. For a long time, the expression of ideas incompatible with Christianity was outlawed. The creators of these laws had the best of motives, from their own perspective. Not only did they believe that Christianity was true, they believed that teaching otherwise could put people's souls in peril. But their laws put a standard of force over a standard of reason. The result was the torturing and execution of heretics.

It has been argued that "hate speech" does harm people, by causing them emotional distress and by encouraging others to act negatively toward the targets. But this kind of harm is too subjective to be answerable by legal force. Any idea may distress a person who strongly disagrees with it. True ideas as well as false ones may discourage commerce with any given group of people. Only when there is a direct threat or demonstrable damage to an individual -- e.g., threats of violence, falsehoods which damage a person's reputation, theft of intellectual property, or invasion of privacy -- is it appropriate for a government to intervene against what a person says.

Hate speech laws in history

In the early days of the United States, the Adams administration enacted a "hate speech" law -- the Sedition Act -- to stop attacks on people in office. They wanted to make sure the government would be respected. In practice, this meant that attacks on the Federalists were outlawed while attacks on the Democratic-Republicans were fine. The President behind this was one of the key theorists of American liberty, but even he could not be trusted when he had the opportunity to put force over reason.

In the mid-twentieth century, various forms of legal intimidation were applied against people who advocated Communist ideas. This was done in the name of defending our liberties against a powerful foreign dictatorship. Its practical result was to give people in power a weapon to use against anyone who had unusual ideas or associated with people who did. In the long run, it gave anti-Communism a bad name.

The current push for laws against "hate speech" is more of the same; one difference, though, is that the Internet puts nations in closer proximity, so that one country is more directly affected by what happens in another. We have already seen people in California prosecuted under Tennessee "obscenity" laws. We have seen threats by governmental bodies against international companies hosting sites which are legal in the United States. Threats to free speech anywhere in the world -- but particularly in Europe and Canada -- are threats to free speech in the United States.

In the international climate, it's important to remember that rights are not given by the U.S. Constitution. The First Amendment does not create the right of free speech; it recognizes it. The right of free speech doesn't stop at a country's borders simply because that country lacks laws recognizing it. It is a right which exists everywhere there are people able to speak; governments can deny it, but cannot legislate it out of existence.

Last updated September 25, 2000
Copyright 1999 by Gary McGath