The hate speech conundrum

The problem of hate speech never goes away. What to do about people who say or write the most hateful things is problematic to say the least. The freedom to say whatever one likes is not absolute even in the US where the First Amendment provides robust protection for almost any kinds of speech. There are certain things that you cannot say, and this article summarizes the kinds to things that are allowed and not allowed. You are not allowed to “incite actions that would harm others” or to “make or distribute obscene materials”. Interestingly, you are allowed to “engage in symbolic speech, (e.g., burning the flag in protest)” but you are not allowed to “burn draft cards as an anti-war protest”.

But where does this leave speech that is widely considered beyond the pale, such as Holocaust denial or other forms of speech against specific groups? In some European countries such hate speech is banned and one can be charged for indulging in it. In the US, there are no laws banning such speech. Instead the response is usually to say that we should combat hate speech with more speech in the belief that good speech will eventually win out. The problem is that the media landscape we have now provides plenty of venues for speech but is so fractured that it seems like the audiences for the two kinds of speech do not overlap. In other words, those who are drawn to hate speech do not enter the world where such speech is condemned and vice versa. So the marketplace of ideas sees almost no competition. Rather, in the hate speech world, we seem to have increasing escalation as people are sucked into a vortex of ever more harsh rhetoric, almost as if there is a competition to see who can be the most extreme. This actually forms the business model of many platforms that depend on people spending more time on their sites who find that the best way to achieve that is to feed their basest tendencies.

This strikes me as an unstable situation. As we see marching armed crowds chanting racist and anti-Semitic slogans, at what point will it become seen as a threat to the communities that are being targeted? We may well reach a stage where we adopt the European model and ban some kinds of hate speech. Of course, that might have the effect of driving such speech underground and possibly make it even more toxic. The chief fear is of course is that once you start banning speech that is being used by those you dislike, what is to prevent the authorities from also at some point banning speech that you like? That is the slippery slope argument. As far as I can tell, the European countries that have banned certain types of hate speech have not as yet slid down that slippery slope. But it may be too early to tell.

Joshua Yaffa writes that the proliferation of outlets for speech has qualitatively changed the discussion.

In the twentieth century, the main threat to free speech was suppressive states. This model “presupposes an information-poor world,” Wu wrote. But now a plenitude of online outlets for expression have led to an abundance of speech. And this “cheap speech,” as Wu put it, “may be used to attack, harass, and silence as much as it is used to illuminate or debate.” The notion of more and better speech conquering ill-informed or malevolent speech looks outmoded. In fact, it seems that the opposite is true: the distinction between “good” and “bad” speech is lost amid the information deluge.

France, Germany , and the UK all have laws that restrict what they describe as hate speech while the US still pursues the idea that the way to counter hate speech is with more speech. The issue has come to a head with private business interests like Facebook and Twitter because of their ambiguous status. Are they merely platforms that are not responsible for the content put on them by users? Or are they publishers and thus can exercise the same right of editorial control that any publication has and thus can be accused of censoring unpopular ideas? Right now they seem to be trying to straddle both sides of that line.

In the November 2, 2020 issue of the New Yorker, Luke Mogelson writes about his experiences after he embeds himself with right wing groups like Patriot Prayer and Proud Boys and also with Anitfa groups to try and understand their motivations. He writes that the problem of what to do with fascist speech is an old one.

In “Antifa: The Anti-Fascist Handbook” (2017), the scholar and activist Mark Bray writes that, after the Second World War, Jewish veterans created the 43 Group, which stormed fascist assemblies with the aim of knocking over the speakers’ platform. Though conservatives and liberals alike now criticize “no-platforming” as a violation of free speech, antifascists take the 43 Group’s view that incipient fascism tends to metastasize if left unchecked; given that fascist movements ultimately aspire to mass oppression, or even genocide, they must be stifled early.

This is one heated debate that is going to remain with us long after the election, irrespective of who wins. If Trump wins, these fascistic groups will feel vindicated and thus emboldened to take even more actions while if Trump loses, they will feel aggrieved and thus emboldened to take even more actions.


  1. Pierce R. Butler says

    First sentence of fourth ‘graf is foo, both syntactically and linkishly.

    Amanda Marcotte points out that Trump and the Trumpanzees suffer from permanent beta-cuck syndrome and will lash out in resentment if they win just as when they lose (only with more power):

    … win or lose, Trump supporters will continue to believe they are victims of the “liberal elite” and the “deep state,” and will keep on being resentful, angry and aggrieved, stocking up on guns and screeching on social media about how poorly they believe they’re being treated. … if there was one word to describe Trump’s supporters — who, let’s remember, were on the winning side in 2016 — it would be “bitter.” Turn on Fox News any random night, and it’s a full blown whine-fest about how alleged “elites” are trying to control them and ruin their lives. The fact that their party controls most state governments, the White House, the Senate and the federal courts never factors in. The narrative is one of perpetual victimhood. … in the warped imagination of Trump-loving conservatives, they’re perpetual losers, even and especially when they’re winning.

  2. Mano Singham says

    Pierce @#1,

    Thanks. I have corrected it. Because of a lack of quote marks in a link, an entire section got cut out.

  3. brucegee1962 says

    One thing that I think would help (if perhaps not solve) the problem is some form of government-funded free community college education. College-educated people are less likely to dive down these rabbit holes, and as a community college teacher, I put a lot of effort into teaching about good sources and trying to nip this stuff in the bud.

  4. jenorafeuer says

    Is there a version of Gresham’s Law (bad money drives out good) to do with speech? Because that seems to be what is happening, speech that requires no real thought overwhelms and harasses out the people who actually want to think about what they’re saying. It’s a Gish Gallop on a global scale.

  5. hohnjamilton says

    Who will be the first person to be arrested for falsely yelling “crowded theater” at a fire?

  6. GerrardOfTitanServer says

    Note: It’s considered illegal hate speech in France to call for boycotts of Israel, and so the slippery slope problem of “what qualifies as hate speech?” is not just a hypothetical. It’s actually happening.

    I would also like to emphasize a really important question: Are hate speech laws effective? No really. I might be mistaken, but I have read that the Weimar Republic had strict anti-hate speech laws, and that leading Nazi politicians were frequently charged (and convicted) under such laws. A fat lot of good those did. I cite this only as anecdotal, and I really don’t know the answer to this question, but it is far from clear to me that they actually accomplish anything worthwhile.

  7. mvdwege says

    2 things:

    1. It is not a matter of law, but of jurisprudence in the US whether or not some forms of ‘hate speech’ count as incitement, which would strip them of First Amendment protection. Personally, I would think that a good case can be made for putting all forms of Nazi rhetoric and symbolism under that umbrella, as Nazism is inherently genocidal, so sporting any sort of support for it should count as direct incitement to genocide. Yes, I know this counts as kicking over American holy cows. Too bad.

    2. @GerrardOfTitanServer: a simple empirical approach would be nice. We are after all all scientific thinkers here, right? So I give you example one: Germany, with robust anti-hate speech laws, has decidedly less actual extreme-right politicians than the surrounding nations, with neo-Nazi AfD being an extreme minority party. Compare that to the robust 20% or more political representation in the Netherlands and Belgium, not to mention the fascist PiS in Poland. Or the hotbed of anti-hate speech: the USA, for which we actually see the results today.

  8. mvdwege says

    Oh, and another note: No, @GerrardOfTitanServer, the Weimar Republic had no robust anti-hate speech laws. The whole concept of such is in fact born out of the failure of the Weimar Republic, and the very reason that Germany has such strong laws against it (which, BTW, was one of the conditions the United States put on granting them self-governance again).

  9. GerrardOfTitanServer says

    As far as I can tell, the Weimar Republic seems to have had robust anti hate speech laws, which were used aplenty against Hitler, and Hitler used this “censorship” to rally his supporters.

    Do you have sources otherwise? I could post some that I randomly googled, but the are of uncertain quality.

  10. mvdwege says

    @GerrardOfTitanServer “Hate speech” is a postwar concept.

    But you asserted that Weimar had anti-hate speech laws, so you do the work: quote them. And no, not the facile right-wing unsourced assertions that are all that pop up when I Google, I want to see real quotes from the law books themselves.

  11. KG says


    I’m inclined to agree with you in general, but unfortunately the AfD in Germany is far from being an extreme minority party: it’s the official opposition -- although admittedly, that’s because the governing coalition includes the two largest parties.

  12. KG says

    If the Weimar Republic had “robust hate speech laws”, they clearly were not robustly enforced, or Hitler and his senior henchmen would have spent most of the 1920s and 1930s in prison.

    Reducing the size of far-right parties is by no means the only aim of hate speech laws. Hate speech is intended to, and does, directly harm those at whom it is aimed. It has always been a lie to say that only actual physical violence can cause such harm.

  13. mvdwege says

    KG @12: I’m looking at AfD from across the border. At 92 seats of 709 in the Bundestag it is certainly smaller than the PVV/FvD combination here in the Netherlands. From my perspective it’s a fairly minor party. Especially considering the official unwillingness of the other parties to cooperate with them; the scandal that the CDU in Thüringen was willing to enter into a at least a confidence and supply agreement is rather different from the way the very mainstream VVD in the Netherlands takes over extreme-right talking points and even entered into a formal coalition with the PVV.

    And I’m not even looking at Belgium, where the extreme-right VB and the slightly more salonfähig equivalent NvA dominate Flemish politics.

    I’m going to pre-empt Gerrard btw, on your @13: Weimar had no robust hate speech laws. All it had in that vein was art. 130 of the penal code, which was a prohibition on advocating class warfare. The wording of that article shows you at who it was primarily aimed; certainly not the Nazis.

  14. GerrardOfTitanServer says

    Judging from this:

    It does seem that general anti-semitism was against the law, and that it and similar laws were frequently invoked. However, the way that you can escape this argument, and reasonably so, was to note that prison sentences were rare, and usually pretty short.

    However, that makes me concerned if you think that multi-year jail sentences should be a frequent sentence for hate speech.

  15. mvdwege says

    Nice PDF. As usual when someone wants to stick up for bigotry, you have not read it. That PDF actually is written from the point of view of what instruments Jewish organisations in Weimar used, it quotes 3 specific laws, and in all cases points out that jurisprudence actually made these instruments only somewhat effective.

    So much for ‘robust hate speech laws’.

    Why are you spending so much of your time defending Nazis?

  16. KG says

    However, that makes me concerned if you think that multi-year jail sentences should be a frequent sentence for hate speech. -- GerrardOfTitanServer@15

    Not frequent, but for those repeatedly stirring up violence against vulnerable groups, why not? We have seen what comes of allowing it: some 50 million dead, and unnecessary suffering and destruction on a scale unequalled before or -- so far -- since.

  17. GerrardOfTitanServer says

    To mvdwege
    Jese. You didn’t even read what I wrote. Instead you just assume I’m a neo-Nazi. Take off the cruise control, and read what I wrote again in that last post. I observed how the laws were relatively ineffective due to jail sentences which were short and infrequently used compared to fines.

    Why am I defending the civil rights of Nazis?

    More concretely, I gave an example above. It’s illegal in France to advocate for boycotts of Israel because a court has deemed that doing so is anti-semitic. There’s an actual ongoing ethnic cleansing and apartheid in Israel today, and protestors and advocates like who are trying to fight against it are being silenced by the very laws which are supposed to prevent the same sorts of genocides. (It’s ironic and incredibly sad that a cultural group, Jewish people in Israel, are now committing the same sort of harms, ethnic cleansing and apartheid, that were visited upon the previous generation by the Nazis.)

    More generally, I’m still going to need some evidence for the effectiveness of these laws beyond “it seems obvious to me” in order for me to be at least ambivalent (as opposed to hostile) towards these rather worrying infringements on free speech and the incredibly worrying slippery slope.

    First they came for the socialists, and I did not speak out—
    Because I was not a socialist.

    Then they came for the trade unionists, and I did not speak out—
    Because I was not a trade unionist.

    Then they came for the Jews, and I did not speak out—
    Because I was not a Jew.

    Then they came for me—and there was no one left to speak for me.

  18. mvdwege says

    Dude, if you are unable to distinguish Nazis from regular people so much that you actually think there is a slippery slope there, you are a fucking Nazi.

    And quoting Bonhoeffer in their defense? You can fuck right off.

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