Should America Have a Hate Speech Law?
In an op-ed in the Washington Post entitled ‘Why America Needs a Hate Speech Law’, Richard Stengel suggests that since many countries have such laws, America should consider implementing one. I’m sure he would agree that every country needs to tailor its laws to suit its own circumstances. Therefore, rather than copy other nations, the United States should look to its own situation in deciding if it needs a hate speech law. Conversely, the United States is not necessarily a model for all other jurisdictions.
American society is marked by diversity, vigorous political contestation, and regular switching between Republicans and Democrats in the White House and Congress. Politicians compete aggressively for the support of interest groups, who in turn organize around grievances for which they seek redress by the state. Sometimes these grievances include demands for restrictions on speech deemed “offensive”, as defined by the offended group. From time to time, such demands are placed before the Supreme Court of the United States.
One such bid was recently struck down by the Court, with Justice Anthony Kennedy noting, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.” In other words, in a heterogeneous society with robust political competition, if the boundaries of legally-protected speech are left to the government of the day to fix, political parties will promise restrictions on speech deemed “offensive” by minorities, in exchange for their votes. History shows that once passed, legal restrictions on speech tend to stick (partly because criticism of them may be deemed “hate speech”). So as contesting parties take turns to govern, such restrictions are likely to increase over time, “to the detriment of all”.
Stengel says hate speech “diminishes tolerance”. However, in a diverse society with lively political contestation, hate speech laws can have the same effect. If “offence” is a standard by which speech is restricted, then the more one takes offence, the more likely one is to be rewarded with protection against the “offensive” speech. The long-term effect is precisely to diminish tolerance for opposing views, and to promote loud and even violent offence-taking as political strategies. In practice, it doesn’t take long for goal posts to shift on the definition of ‘hate speech’ to include not merely slurs but even questioning of certain beliefs, or the mere stating of facts that place those beliefs in a negative light. One casualty of this process is likely to be the very thing that Stengel says he wants disseminated, the truth.
Another way that hate speech laws tend to diminish tolerance is through resentment. When criticism of a certain belief-system is forbidden, frustration often builds up in critics of those beliefs, and is then taken out on the beliefs’ adherents in ways that don’t infringe the letter of the law, but violate its spirit. So instead of reasoned criticism being directed against the beliefs themselves (with the possibility of constructive dialogue leading to mutual understanding), it is the believers that become the target of often non-verbal aggression, usually without much explanation (which in turn builds up a sense of grievance in believers, stoked by conspiracy theories in the absence of dialogue).
Stengel claims that, “On the Internet, truth is not optimized.” However, he fails to mention that thanks to the Internet and the ubiquitous cellphone, anyone who practices hate speech is likely to face not only instant and widespread notoriety and condemnation, but also unemployment. What you say stays on the Web forever, and many employers have strict rules against hate speech, in and out of the workplace. Of course, one could hide behind anonymity on the Web to avoid public recognition, but anonymity also protects against hate speech laws. If the authorities don’t know who you are, they can’t prosecute you. So it isn’t clear if the Internet helps or hinders the dissemination of hate speech, or if hate speech laws would make a difference.
Hate speech is all too common, but in the American context of competitive and contentious politics with unpredictable outcomes, it would be prudent to weigh the benefits of a “hate speech” exception to the First Amendment against the potential long-term costs, which are likely to include ever-greater restrictions on free speech “to the detriment of all”. These detriments include distortion of the political playing field to favor those whose views are legally protected against criticism, and who are therefore free to criticize their opponents without a reciprocal right of reply; the suppression of truth by fear of prosecution under hate speech laws; rising resentment among those whose beliefs are unprotected by such laws, but who are effectively muzzled by them; and the rise of vociferous offence-taking and ‘cancel culture’ in American politics at the expense of reasoned debate and tolerance of opposing views.
