There is a long predigree in liberal public discourse about the dangers of punishing hate speech. The oft-quoted aphorism goes something like “the antidote to hate speech is more speech”*. The basic idea is that in a marketplace of ideas, bad ideas will be forced out by good ones, and thus the solution to hate speech is to marginalize hateful voices by speaking up vigorously in the defense of those who need it. This has been, proponents of this view claim, the way our society has moved overt and hateful racism from the mainstream to the margins: good people decided it was time to push racist voices out of the mainstream, and nobody had to pass a law making it a crime to be racist.
The truth, of course, is far more complicated than that. This account moves the agency of black people to the back of the bus (yeah, I went there) and makes the provisional successes of civil rights groups in eradicating racism the work of the goodwill of the majority rather than the work of organized people who fought against the system. It also ignores the fact that, even to this day, racist language might be gone, but the racism it described has just found more palatable words to convey the same message it always has. Finally, it ignores the role that craven politics and opportunism played in whatever cultural shift has genuinely happened.
That being said, the point remains: it is not necessary to criminalize hate speech to reduce it. The argument then (often) follows that we should therefore not criminalize it, because of some non-specific harm that may come to some white person down the road who will be mistakenly blamed for saying something that hurts a brown person’s feelings. Or something. I have, in recent years, moved away from the “absolute free speech” position I held for many years, and it’s partially because of stories like this:
Shameful times in small-town Manitoba, where the homosexual owners of a brand new restaurant are closing up shop because a few residents have taken to attacking and insulting their sexual orientation.
The Winnipeg Free Press reports that Morris, Man., restaurant Pots N Hands will close in April, just four months after opening for business. The owners at first refused to discuss why they decided to close shop, finally relenting and admitting the decision came following a series of homophobic attacks.
The owners would even only speak to the Free Press on the condition of anonymity. An odd condition, considering they are already known to those in the community. But these are the steps taken when discrimination boils, and threatens to boil further.
The problem with hate speech isn’t just that it’s mean, or that it hurts people’s feelings; it often has real, tangible, harmful consequences to the people who are on the receiving end. Those objective harms rarely (if ever) make their way into the liberal discussion of hate speech. Instead, we are asked to imagine the horrors of what would happen if the government was allowed to censor hateful views. Why, it would immediately become like 1984, where every word is monitored by thought police who would treat all dissent as hate speech.
To be sure, hate speech laws have been abused in exactly that way, but it doesn’t necessarily follow that all instances where hate speech is subject to punishment will turn into dystopian tyrannies. What is entirely likely is that, insofar as any law is just a codification of public morality, hate speech laws will be little more than a public declaration that we take hate speech seriously. As it is, there is likely no hate speech law that could have done anything to save “Pots N Hands”, but it is entirely possible that a criminal investigation could have galvanized the community to publicly support the owners, and would definitely have helped them feel as though they were not alone, and that their pain was being taken seriously.
The other question we are moved to ask is, if laws cannot stop bigotry, can they at least help in moving the conversation forward? Can they use the power of the state to marginalize extremist voices more quickly than the ‘marketplace of ideas’ could on its own? Can anyone deny that the passage of anti-discrimination laws in the United States and in Canada have been of immense value to people who otherwise would have had no legal recourse? Is there a value in saying that we will not wait for the world to become just on its own, but will actively intervene to make it more fair?
As it is, Morris can now bask in its newfound notoriety as a home to extreme anti-gay bigotry. Hopefully that will be enough to trigger the conversation, perhaps too late for “Pots N Hands”, but perhaps not too late for the community at large.
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*Try as I might, I could not find an original citation for this quote.