Having laid out what I consider to be a strong defence of freedom of expression, I must now consider the most common challenge to it: hate speech. In order to make the best case for hate speech legislation, we must first decide upon a working definition of what hate speech is. This definition will be imperfect in that it will not necessarily succeed in drawing a sharp boundary between exactly what is or is not rightly called ‘hate speech’. However, we are considering only whether or not there is some hate speech that should be restricted (as opposed to all), and so this is not a particularly important issue for my purposes.
Defining hate speech
Consider these three examples:
- Liam Stacey, a young student got drunk one evening. At the same time, Fabrice Muamba, a well-known footballer suffered a near-fatal heart attack during a match. Stacey mocked this event, and when he was criticised for it, he wrote grossly insensitive and abusive comments on the social network Twitter to individual users, such as “go suck muamba’s dead black d**k then you aids ridden t**t! #muambasdead”, and was jailed for 56 days.
- Julius Malema, a South African politician with a history of racial antagonism was also convicted of hate speech, for singing the lyrics “Shoot the Boer, they are rapists!” (‘Boer’ being farmer, or white person) from an anti-apartheid song at a rally. Not only did he sing them himself, but he led others to sing along with him. He did this in a country where there is a problem with the killing of (usually white) farmers, and so the issue runs far deeper than simply causing offence.
- Former Alaska governor Sarah Palin was heavily criticised for violent and gun-related imagery towards members of the Democratic Party. When President Obama’s health-care bill was passed, Palin wrote on Twitter “Don’t Retreat, Instead – RELOAD!”. When congresswoman Gabrielle Giffords was shot in 2011, attention was drawn to a map posted by Palin’s political action committee which placed a ‘cross-hair’ graphic over the congressional districts held by Democrats, one of whom was Rep. Giffords.
I propose that the first two are examples of hate speech and the third is not. This is consistent with the law in their respective countries; both Stacey and Malema were convicted of hate speech while Palin was not even arrested. I take this as being in line with the common intuition about what constitutes hate speech; even if the shooting of Rep. Giffords was somehow incited by the map with the cross-hairs (which seems very unlikely) it seems that most saw it to be an ethical issue rather than a criminal one. Unlike in the Malema case (perhaps), there did not seem to be a genuine intent to incite violence. Rather, it reflected Palin’s typical hyperbolic rhetorical style. It seems then that intent is an important factor in the definition of hate speech. Contrary to this idea, Jeremy Waldron argues that the psychology of the speaker is not relevant to question of whether their speech is hate speech. Waldron contrasts hate speech with hate crime. The latter requires hateful intent in order for it to be considered a hate crime while the former does not. He notes that the ‘hate’ in ‘hate speech’ does not refer to the motivation of the speaker, but rather to the likely effect of the speech, i.e. the likelihood that the speech will ‘stir up hatred’ or ‘incite hatred’1. While this seems plausible, it is notable that out of the examples I am using here, Malema and Palin’s actions seem more likely to incite hatred (or violence) than Stacey’s do. Stacey’s messages were less of a rallying cry and more of a private outburst towards individuals, and the ‘hatred’ in question seemed to come from himself. Palin and Malema were making announcements to their followers; calls to some sort of action, whether it be violence or the focus of a political campaign. In these cases, the worry for those who might want to legislate against this sort of expression is that the expression is likely to have violent consequences.
So to recap; intuitively the first two examples are examples of hate speech and the third is not. What is it the examples of hate speech have in common? Well, the expression in both of these examples seems “intended to insult or stigmatize an individual or a small number of individuals on the basis of their sex, race, colour, handicap, sexual orientation, etc.”2. This is not the case in the Palin example, which seems to concern political activism rather than stigmatisation, and if there is any stigmatisation in this example or similar examples, it is on the basis of political belief rather than racial characteristics, etc. So hate speech concerns ‘hatred’ based on a certain set of personal characteristics. It is not that hatred is the problem, it is that the hate must be directed against particular people for particular reasons. As Waldron notes:
“Advocates of hate speech legislation do not infer the wrongness of stirring up hatred against vulnerable minorities from the badness of hatred in general … they are concerned about the predicament of vulnerable people who are subject to hatred directed at their race, ethnicity, or religion; apart from that predicament, advocates of hate speech legislation may have little or no interest in the topic of hatred as such.”3
This is plausible; when we talk about hate speech we do not include ‘anyone expressing their hatred’; the idea of hate speech conjures up images of racist demagoguery and far-right intimidation. This gives us a working example. My aim now is to consider some reasons given for why hate speech should be legislated against and in doing so perhaps a clearer picture of what hate speech is will emerge.
1 Waldron, J. (2012) The Harm in Hate Speech. Cambridge, MA: Harvard University Press, pp. 34-37
2 Hornsby, J. (2003) “Free Speech and Hate Speech: Language and Rights” in Normatività Fatti Valori, Rosaria Egidi, Massimo Dell’Utri, and Mario De Caro (eds.). Macerata, Quodlibet. pp. 297
3 Waldron, op. cit. pp. 37