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.
Crommunist, I believe the original is “The antidote to bad speech is more speech”, which seems to be most often attributed to J.S. Mill.
I imagine you may have already come across this in your searches, but I’ve always understood “the antidote to hate speech is more speech” and its variants (“the solution to bad speech is good speech, not no speech,” etc.) to be a paraphrase of Oliver Brandeis in 1927: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
And this is why I picket hats groups silently. There is nothing I could possibly say in the 8-second window of when I’m in ear shot of a passerby, that could possibly announce more than my silence already does.
Goddamnit, hate, not hats. I love hats.
That’s disgusting
…make that Louis Brandeis…
The argument I’ve seen against hate speech most commonly (granted, from a more analytical subset of individuals) isn’t that it will immediately lead to a 1984-style dystopia; rather, the argument is that banning speech has two big negative effects:
1. It allows the person whose speech is banned (or who’s imprisoned for speech) to don the mantle of martyrdom.
2. It forces prohibited speech underground, where bad ideas can’t be publicly torn to shreds.
Now, I’m not sure 2 is worth that much anymore – many people live in bubbles where their worldview will never be challenged, and so it’s quite possible that counterarguments to hate speech will never reach them. Point 1 might still be worth something, though, particularly for issues like homophobia where a large fraction of the population is still clinging onto bigoted ideas, and making raging homophobes look at all sympathetic (by, for instance, punishing them for their statements) could lead some fence-sitters to choose the wrong side.
Of course, as Crommunist points out in the post, they can still do a lot of harm through these statements, but I think this could be handled better under harassment laws than hate speech laws. It’s a fine line to draw, though, and wherever you draw it, some people are going to exploit it. It could end up illegal to say “You’re going to hell because you’re gay,” but legal to say “Gays are all going to hell,” for instance, which seems logically incoherent. It may be necessary, though. I don’t think the government should have the power to ban political statements or claims or (perceived) facts, as it’s quite possible they’ll use that power to stifle things in the wrong direction (*coughGlobal Warmingcough*), but I do think it’s reasonable to ban statements targeted at individuals which can amount to harassment.
Even splitting this particular hair, it still doesn’t cover “death by a thousand cuts” type cases. I don’t really have a good idea for that, honestly, but I’m open to suggestions.
Someone pointed out to me that these things already happen, even without the force of law behind them. Rush Limbaugh is a regular “martyr” of the “political correctness police”. Dr. Laura got kicked off of her show by her network and immediately began bleating about how she was being “censored” and that she had “a right to free speech” – this after repeatedly racially abusing a caller on the air. I would say that regardless of legal penalty, this phenomenon occurs already.
Ah yes, you’re certainly right about that part. I’m not sure if it’ll have the same effect on fence-sitters as legal repercussions, but that’s pretty hard to test (though perhaps not impossible, if they’re asked as hypotheticals, or through a clever psych experiment).
Interesting.
I think your point makes sense in theory. However, political power being what it is, the definition of hate speech would be set by those in power. If the Harper government was to pass a new law tightening speech laws, to be enforced by the current police (whichever level it may be), I can’t fathom how this would possibly end positively.
Also, what would be the criminal charges? Would it be a charge reserved for adults? Do you have to be screened for mental illness to be charged? I assume we all agree that prison makes no sense for comments not inciting to violence. Then a fine? I don’t know, it really seems to me that the people who would be most vulnerable under such a law are exactly the ones who we want to protect under this law. I doubt conservative MPs being bigots would get a taste of such a law, but a discriminated upon group getting angry at the political and social landscape would.
I don’t have a solution, there should be more of a recourse for victims of intimidation. But I just don’t see how this would work on a practical level. How do you get a privileged class/group to properly set the boundaries for hate speech/bigotry? Maybe I am not seeing the framework you are using to come to your conclusion. Should I not apply the idea to the current state of affair?
@10 maudell: I was thinking along these lines as well, which I alluded to with my offhand comment to global warming. The Harper government has already done all it can to muzzle scientists to keep them from talking about global warming, so we know where they stand on free speech about that issue. Simply put, I don’t trust them to enact any speech restrictions in a reasonable manner.
@11
And librarians. Can’t let them talk either! http://boingboing.net/2013/03/19/canadian-government-muzzles-li.html
If we change our standards from “the government can’t censor speech” to “the government can censor speech if it does serious emotional harm to some people”, then I don’t see how you can reasonably oppose blasphemy laws any more. There are certainly people who feel that they suffer deep emotional harm from criticism of their religion.
I suppose that if us enlightened liberal types could take control of the government, and ensure that we can keep control of it forever, and write the hate speech laws narrowly enough that they only catch dangerously bigoted people, then they would be alright.
So we’re just going to throw out the “reading of the post” part, eh? Cool.
Actually kind of reminds me of all the talk about rape. Think of the poor guy who was falsely interrogated/imprisoned don’t focus on the actual harm that occurred or a need to prevent it.
Well, this is more satifying, after the Nanaimo Daily News published a nasty racist rant about First Nations a couple of weeks ago:
“The town’s community newspaper published editorial comments in January calling aboriginals corrupt and lazy. The Morris Mirror went out of business in March.”
If only the Nanaimo paper would follow suit.
I hope the restaurant owners have enough funding, energy, and spoons to relocate to a community that will welcome them as they should be received.
@14 Crommunist: I remember a blog post on some popular site that tested this once. In a paragraph near the end, they added a line that read something along the lines of, “To prove you read this full post, please use the word ‘banana’ somewhere in your comment.” It took over 50 comments before the first banana. Reading the post is always optional before commenting – it’s easier to get righteously indignant if you only have the title and first sentence to go on.
I did read your post, I’m sorry if I didn’t grasp your argument properly.
This is the kind of thing our Human Rights Tribunals are supposed to address, as a kind of middle ground between criminalizing hate speech and doing nothing about it. I have mixed feelings about them, not sure how effective they really are, but there does need to be something in place to guard against stuff like this:
The impact of hate media in Rwanda
You’re a towel.
Nick: did you read this part?
I’ll agree/ disagree here too. Reading the post it’s clear that an absolutist position doesn’t address real harm done by bigoted speech. And I have gone about Brayton’s blog, in particular, noting that many acts of “speech” are really just dressed-up intimidation. We don’t bleat about the rights of free speech for the mafia when they come to your neighborhood and politely suggest to everyone that it would be good policy to pay into the “town improvement fund.”
That said.
This is one of those cases where the theory doesn’t address real-world situations. In theory the antidote to bad ideas should be more good ones flooding the marketplace. In practice that doesn’t seem to work as well as we would like it to. In theory hate speech laws should express societal opprobrium for bad ideas, but in practice it never works the way us enlightened types hope it will.
I’ll give a real concrete example: Yugoslavia. Certain expressions of racism and bigotry were explicitly outlawed by the Tito government. That didn’t work so well, because the result was that people could pretend those ideas didn’t exist. When the shit hit the fan after Tito’s death, all that bad stuff came bubbling up because it never really went away, and the fascists seized on it. The old leftists who were on the right side (in the sense of being against genocidal warfare) were left in the worst possible position to fight that kind of thing.
In the USSR, a similar thing happened. “Hate speech” as we would define it was against the law. And explicit bigotry was not the thing to do. But it didn’t address any of the underlying issues. To this day, Russians look at all the countries that used to be part of the old USSR as the “near abroad” and certainly never seemed to feel any particularly socialist brotherly unity with the Kazakhs.
In both those cases the explicit aim — to reduce inter-ethnic tension — was embraced by the government, even if for cynical reasons. But the way it was executed ended up exacerbating problems, and in one case blew a country apart. Do I think that’s likely in Canada? or the US? No. But as my dad always said, not all revolutions come from the left when shit gets tough.
An Crom, I have read the post, and while your point about anti-discrimination laws is well taken, the fact is it is a lot easier to quantify the kinds of harm they try to address. It just is. I think you yourself acknowledge that coming up with a legal framework that would, in the real world, protect minority interests would not be that easy to do. It wasn’t easy with anti-discrimination laws either, which is why (in the US at least) it’s still an active area of litigation.
Now, I don’t have a ready answer. I am not a free speech absolutist, but my inclination is to focus on more actionable stuff that often goes with speech but doesn’t have to fall under that classification. In NY State, “menacing” is a crime and is a lot easier to define, for instance. (I actually was on a jury deciding such a case– the legal definition I remember was pretty straighforward and would cover some things that a lot of people might initially classify as “speech” — there just has to be a relatively concrete act with it).
That’s why people often balk at hate speech laws, certainly why I do – it never seems to work as intended, precisely because the criteria get awfully slippery, and that just invites a mess, as well as the possibility of abuse by those in power. (Hate crime laws are a different matter, changing penalties according to motive is common and accepted).
I’m certainly not worried about people being falsely accused, as such, any more than I am too worried about people being falsely accused of sex assaults willy-nilly.
But I, like a lot of other people, ask what would happen when the same power can be turned on you. With anti-discrimination laws that’s harder to do in part because of what you are trying to quantify doesn’t lend itself to that, but it can still happen (there are a few cases like that in the US, it’s one reason affirmative action programs have taken a hit). What worries people is whether you are putting in place something that depends a little too much on the good will and intentions of the people in power.
Sometimes the legal system is just too blunt a tool, you know? And even you acknowledge that a bit when you say that it might not be necessary to actually criminalize hate speech. (However defined and by whom).
I hope I am making sense.
@ 14 Crommunist
I re-read the post, and it’s true that it is not as centred on the law as I had understood the first time. Further, it appears to me that some laws can be beneficial in the end (i.e. Canada vs US free speech laws), in a limited sense. I will give it more thought.
One thing that I’m definitely on board with about “marketplace of ideas” theories: “the truth is more complicated than that”
@21: Yeah, I did say “serious emotional harm” rather than just “it’s mean” for that reason – I’m not trying to minimize the damage that words can sometimes do. If hate speech laws are just about punishing assholes who use words to abuse people, then I’m not going to shed any tears for the assholes.
What I’m worried about is that hate speech laws, if written and applied too broadly, might set a precedent for other types of censorship. For example, when I drew a connection between hate speech laws and blasphemy laws, what I had in mind were incidents like the Satanic Verses controversy. There were some Muslims who really felt that book was a hateful attack on them and their culture (it wasn’t, but the perception was still enough to cause some pain). I can imagine that saying certain things about a person’s religion could cause serious, concrete harm to them – but I can also imagine laws intended to prevent such harm being used to shut down legitimate debate.
The question for me is, why do we not legislate against hate speech the same way we legislate against death threats and threats of violence?
To my mind, the only difference is that a person threatening violence might be the one to commit it, while the person uttering hate speech is trying to incite others to commit it.
I may be missing something here, which is very likely since I admit my ignorance in this area.
However, with regard to the “more speech” approach robbing black people of their agency: Do the actions of Martin Luther King (for example) not count as “more speech”? Do protests and counter-protests, gay pride parades and rallies not count as “more speech”?
It seems, to me at least, there are more ways to enter the “marketplace of ideas” than from behind a lectern in an auditorium. Refusing to move to the back of the bus was one example, in my opinion.
Now as I said, I’m likely wrong, but my impression was that the progress we have made in civil rights and against racism did not come from the white majority suddenly deciding to play nice(r). It came from speeches, marches and recognizing your fellow humans standing up for their dignity and their rights and not letting themselves be ignored. It’s the same force behind the changing zeitgeist with regards to gay marriage and what many of us hope to achieve for atheism.
If such campaigns and activist approached are to be considered as “more speech” I don’t see how it removes agency from the groups affected. At least, I don’t see how it is any worse than asking those in power to legislate on your behalf, who then reap the political benefits.
Though like I said this is based on my impressions, which are likely limited and inaccurate and are open to reassessment based on new ideas (hint hint).
My personal reticence with regard to hate speech laws stems (amongst other things) from the idea that the law is too blunt and massive a tool for something as nuanced as this, similar to what was discussed in comment 22.
Campaigns, activism and speeches are very slow methods and they strain against cultural inertia, but isn’t a slow, gradual evolution is response to insistent/aggressive pressure better than a hastily hacking away at the problem with the legislature. I realize that this seems very cold comfort in regards to stories such as that of the restaurant owners in Manitoba. I should ask if Canada has more general laws regarding harassment/abuse (intentional behaviour which is found threatening or disturbing) that could cover this? If so perhaps that would be a more even-handed approach. I would suggest a law that protected abortion doctors, mosques and atheist organizations from persistent threats, vandalism and other abuses at the hands of their enemies, could also apply to homosexual business owners. In other words, maybe we should be enforcing the laws we do have and enforcing them fairly rather than making new ones for specific subgroups and “emotions.”
As I said, the truth is quite a bit more complicated. There was also quite a bit of paranoia about paramilitary groups, there were riots, police beatings, and again, just craven politics. Gay civil rights are a good example of a (mostly) peaceful zeitgeist shift. I’m certainly not saying that speech is irrelevant – I’m just saying that speech (as we colloquially understand it) may not be enough in many cases, and it takes a veeeery long time to work.
Yes, but harassment is a specific charge that can be levelled against an individual, but not a group.
Putting aside the more general question for a moment, what were the avenues that the restaurant owners could have taken to protect their business?
My sense from reading the OP was that they felt threatened enough by the actions of the harassers that they didn’t even want to publicly blame them for their troubles. This suggests that any of the actions which they could have taken at the time were not taken. They had opportunities to take some actions, anything from publicizing that they were being targeted all the way up to restraining orders on the harassers. They took the action of trying to live through it (not an uncommon decision), and have ended up in serious trouble because of it.
Now please, please, don’t get me wrong. They are the victim and they shouldn’t have had to do anything. It is not their fault that they were harassed, and I’m not saying that it’s their fault they are losing the business. Nor am I saying that the owners should have been required to take any action. I’m only saying that there were strategies which were available to them which they didn’t take.
I find the reason they didn’t take any alternative strategies interesting. The first response to harassment often appears to be trying to live through it, hoping the harassers will get bored and move to another target. There seems to be a fear that fighting harassment will only make the situation worse, not better.
It’s a shame because I suspect that if the owners had publicized their harassment while it happened they would have likely garnered more support than additional harassment. Generally people are fair, and many of them may well have shown their dislike of bullying by showing up to eat at the place. People may not have confronted the harassers directly, that’s a risk many people are unwilling to take, but people can show support through other means. Of course, again, harassment generates fear in the victim so taking what measures are available to end harassment are often not pursued by the victim.
(Note: In this case I’m only aware of the information from the OP, is it very possible that the owners did try other strategies which were unsuccessful.)
Again, because I recognize that what I wrote above could be construed as saying that the victims are responsible for their problems because I’m pointing out other strategies they could have taken. Again, the victims should not have had to do anything. What should have happened is that the harassers should have learned a long time ago that their bigotry was unacceptable (for a variety of reasons). They didn’t so the situation exists.
Once the situation exists it needs to be dealt with.
Which leads to the larger issue. I am not, by any measure, a free speech absolutist. Marketplaces work best with some regulation, some rules which everyone agrees are fair and which have some penalties for breaking. This is true even in the marketplace of ideas. Ideas which inhibit other voices from being heard do not result in freedom of speech for everyone, even if these inhibiting ideas are expressed under the rubric of freedom of speech.
Hate speech, bullying, and harassment does cause fear in the target. Fear that standing up to their aggressor(s) will result in more (and escalation of) the bullying and harassment. This fear is a strong suppressor of speech. This fear is justified, there are numberless examples of a victim standing up to their aggressor and getting beaten for it, even when there were legal prohibitions discouraging such aggression.
As mentioned in the comments above, the best solution for bad speech is more speech. But when fear makes more speech a frightening concept, bad speech will suppress more speech.
So, as part of the regulation of the marketplace of ideas, laws which provide penalties for suppression of speech make sense. Someone’s fear of speaking out can be reduced if they know that society, through the medium of the law, supports their decision to stand up and speak out against harassment, bullying, and hate. (If that happens to be the decision they make.)
The great difficulty is that laws which restrict some speech in the attempt to enable more speech can be also be used restrict speech which is not causing fear or suppressing other voices through fear. I’m not saying that there is a slippery-slope, only that defining the point where restrictions on speech are no longer enabling more voices but suppressing them can be difficult.
Which brings up one point which I think some people regularly miss. Laws are not uniformly enforced. Many laws deliberately have some leeway in them to allow them to be adapted to the situation. Think of a cop enforcing the speed laws on a highway. They don’t stop every driver they see, but try to find the those people who are not only driving too fast, but also dangerously. Whether because the driver is weaving between lanes, or going much faster (or even slower) than the rest of traffic. With a surfeit of lawbreakers, the cop is using their judgement on which cars to stop. (Yes, sometimes their judgement is very bad. Driving while black is a good example of poor judgement.) I don’t think anyone really wants uniform enforcement of laws, if for no other reason than there would have to be a huge increase in the numbers of police just to handle the load.
The problems with selective enforcement aside, the point is that laws are not necessarily bludgeons, they can be used as scalpels. Which means it should be possible to craft a law (possibly through several iterations) which can be used as a means to encourage citizens to speak out against harassment, bullying, and hate with a reduced fear of reprisals.
Of course, we live in an imperfect world, so even if such laws exist on the books getting people to invoke them might be difficult. We should not expect victims to always invoke such protections, but the only alternative I can see is to proactively monitor communications within the marketplace of ideas and chastise those who use speech to cause fear. This immediately leads to the question of who do we trust to monitor communications? Should the power to monitor and report injustice lie with same group which applies and enforces penalties for unjust activities?
I think the most-important aspect of “more speech” is being missed.
You need to marginalize the hate speechers. The Black Panther Party didn’t gain traction in the US in the 1960s because other black leaders decried their calls to arm, and did not permit them to come to the table with the adults.
Marginalization. Not “dialog”. Cut them off from polite society. Cuz they’re not polite.
There is a time for reconciliation, remediation, and all that other kumbayah crap. And a time for debriding the wound. Getting rid of the festering pus.
There is never a time when festering pus needs to be “reconciled” with the body.
:-S
The particular example you mentioned, with the entrepreneurs in Manitoba, I think might be better solved with a “hate crime” add-on to existing laws. “Harassment as a hate crime”, “vandalism as a hate crime,” “assault as a hate crime,” etc., whatever fits the actual acts performed. It seems to me that the problem is not so much the opinions articulated – however terrible – as the fact that they were used in an attack.
In other words, does anyone think a harassment campaign like what’s described above and in the link should be legal to do to anyone for any reason? If people can’t make a public argument against something they don’t like – whether in council at city hall or in protest on the street – they should not be able to “argue” with graffiti and threatening phone calls, with private acts of fear, no matter who their targets are. Doing this to people because of their membership in a historically marginalized group makes this harassment worse, I agree, much worse, but it’s not what makes it bad in the first place.
“Yes, but harassment is a specific charge that can be levelled against an individual, but not a group.”
Ah… Then therein lies a possible fix. Now, by group do you mean ‘a somewhat arbitrary collection of people’, or ‘group’ in an official way, i.e. the NRA or One Million Moms….Plus, even if no charges can be levelled against a group regardless of the definition, couldn’t the Individuals FROM that group who are doing the harrassing be charged?.
I’ll admit, I am about as close to a free-speech absolutist as one can be and still be regarded as sane, so feel free to regard this suggestion through the lens of my bias:
The U.S. (and, I presume, Canada) have laws that do, in fact, infringe upon ‘unfettered free speech’–direct threats, libel, and fraud being the three that leap to mind in a heartbeat. I think a (I hate how this word has achieved such a negative connotation) conservative approach to hate-speech regulation would be to build upon these areas of already-agreed-upon exemptions to the general rule.
For one thing, I’ve rarely encountered true hate speech that did not fulfill one of the criteria above, if read more broadly. Example–currently, libel in the U.S. requires that you be able to ‘identify’ the target as the defamed individual. If Crommunist said, “Freemage is a pedophile”, then I’d be able to sue him, so long as that handle were associated with my meatspace persona. However, if he wrote, “All white males are pedophiles,” it would be acceptable under the law, since I am not personally identified. Perhaps this could be broadened in cases where the libel is being issued against an entire class of people; any member of that class could sue for libel damages, by virtue of being caught in the group libel.
Does this sound like a plausible approach?
A positive effect of forbidding hate speech is that it moves the “middle ground”.
And once something is actually a criminal offense, less people will tend to defend it: it’s slow, but it does erode culture in the right direction.
(banana)
Freemage
For the most part. But in my experience, white men (or whatever privileged group we’re talking about) tend to get really defensive (you’re the real sexist/racist/bigot/whatever). I think it would have to be implemented very carefully.
bananna.
Laws against hate speech, like anything else, can be used by your enemies.
I am uneasy with them for some other reasons too. But would favor very severe penalties for severe harrassment (whether or not based on some broad societal bigotry).
@kevin: There is of course the possiblity that you consider them festering pus on your own side. Also, one can be polite or impolite and still a dangerous loose cannon (Which I think is an inacccurate characterization of the BPP, but still.)