Thank you for your thoughtful and thought-provoking post.
I have been a free speech near-absolutist (the “fire” exception etc) for my entire adult life but the older I get, the more I see “freedom of expression” as a cover for being an asshole or, worse, telling particular people or groups of people they are sub-human/inhuman, especially online, where people appear to feel that they have more license for this kind of behaviour. But I have concerns about further criminalizing forms of speech. (In Canada, where I live, we have criminal forms of speech that are legal in the US.)
The first concern I have is that any law restricting liberty will, at some point, be abused. That’s true of all laws restricting liberty, but with laws restricting freedom of speech there is more of a threat because laws restricting speech impinge upon freedom of thought, the absolute freedom I think most people think we should have. (I understand that there is a compelling rebuttal to this: systemized discrimination and hate infringe upon freedom of thought as well.)
Another concern I have is that someone, somewhere has to judge an intent. Ideally, criminal law should punish acts, not intents. (This is not always or even often true in reality.) Hate speech, and hate crimes in general, reverse this. But we cannot ever truly know anyone’s intent. We can guess. In some circumstances we can guess well, but we’re guessing. If someone says “Kill all the white men” that could be hate speech but it could be jokey pop punk. As you pointed out in your article, this is context dependent. But human beings with biases will be judging these contexts and I worry about abuse.
I have an issue with group rights which is that group rights imply exclusion. Someone is going to be excluding when we decide this many people are this group, and this many people are that group. How can we know who identifies with what group when identities are both subjective and fluid? Do we allow people to self-select rather than determine which group will be protected by penalties against hate speech? What if the other members of the group believe that some are not actually in the group (as seems to happen all the time)? I’m not sure a group-rights approach to hate speech works, which brings me to another concern:
Hate speech has to offend people — it has to attack their identities at some deep level that is offensive. If we make it about individuals instead of groups, it has to offend the particular subjective (and fluid) identity of a particular person. But how can we possibly know what is offensive ahead of time? Sure, we can guess about some things rather easily. But other things we cannot guess about. I worry about a slippery slope from punishing genuinely awful things to punishing speech that outrages. (We get outraged a lot.)
Hate speech seems to me to amount codifying respect. And in our increasingly multicultural societies, that’s a big problem. One persons minor quibble could be another’s terrible insult. How are we to know?
We need to know what’s criminal ahead of time. And a fundamental problem with hate speech is that we won’t always know ahead of time what is illegal and punishable. No matter how well we write the code, someone will make a value judgment about whether or not something is sufficiently offensive to someone’s subjective and fluid sense of identity. I don’t know how that can be effectively turned into law.
All that being said, thanks again for your thought-provoking piece which has caused me to do a lot of soul-searching. I am a white male who was born middle class and I have never experienced anything like what many others have to experience on a daily basis in our society. I see it though (I admin a YouTube channel…) and I worry about it.