Sunday, October 28, 2007

Bigotry, Hate Speech and Free Expression

The Web gives me chills sometimes, because of the venom and hatred I see there. It is frightening to see the comments on a web post like this descend into a flurry of vicious attacks by the participants. The dynamic is perfectly predictable in all instances. People who believe they are protected by anonymity become wildly supportive of their group perspective and grievances on an issue. Those on the other side, unable to target the known qualities of a particular person, seize instead on the characteristics of the group that person represents. And the vitriolic spiral starts.

This happens so often that it seems that the promise of the Web was just a foolish dream. There was hope that the ability to communicate and build online communities would draw us together in a web of insight and understanding, but we find to our horror that this technology just pulls us down into a maelstrom of hate.

So what to do about it?

I've read a number of blogs lately that advocate criminal restrictions on hate speech. I formulated my initial perspective on this from a post by Thinking Girl - in particular her statement:

In regards to hate speech, it is hard to understand why one person’s (or group’s) right to freedom of expression should trump the right of a group not to have hateful things said about them. Why should the rights of the haters be held above those of the victims of hate speech? Societies that tolerate hate speech institutionalize that form of violence.

And these claims from Crooked Timber:

If particular groups are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere (they may speak, but most people will not listen to people like them) then the freedom and equality of citizens is undermined, and the formal right that those people have to legal, civil and political equality is of lesser value than the formally similar rights of others. Far from liberty being endangered by hate-speech legislation it may—and whether it is depends very much on the specific social and historical circumstances—ensure that many people continue to enjoy effective liberty.

Free speech has real benefits. Popular ideas and powerful elites can be challenged, even mocked, and adversarial processes often lead, over the longer term, to better, more complete understanding. Societies ought to adapt over time to social pressures and new knowledge, and relatively free speech is the lubricant that allows change to happen less violently. Restricting speech can lead to stasis and rigidity, because it robs societies of the sometimes painful truth about themselves.

I'm not an absolutist about it. There are restrictions today on libel, slander, on knowingly false advertising, disturbing the peace, threats, harassment, and incitement to riot. And these are all very reasonable in my view.

But I am against extending that suppression to insults, mocking, and the sort of vile commentary I see all over the internet. I'm against the legal suppression of hate speech, but I'm totally in favor of people making their outrage clear through campaigns, boycotts, and complaints to ISPs about terms of service violations. These efforts are often very successful, particularly when you watch some people go to extraordinary lengths to avoid giving any offense to certain groups.

The first reason I'm opposed to hate speech suppression is that such suppression requires selection of particular groups that need protection. Some might claim that a general prohibition, similar to Canada's, on hate speech directed at sex, race, sexual orientation, religion, and national origin would protect everybody. But I think they are really being disingenuous. Many people identify every bit as strongly with their profession as others do with their religion. Lawyers are often hated, frequently mocked, and are sometimes spoken of as parasites on society. They've been targets of murderous attacks - yet no one argues we should protect lawyers from hatred. And hate speech suppression really isn't about marginalization in general - just some types of marginalization. I'm doubtful that anyone would argue that pedophiles are a group worthy of protection, even though they are marginalized, are frequent targets of hate speech, and they could probably be systematically targeted for violence without triggering lots of outrage. No, proponents of hate speech suppression always have narrow, quite particular groups in mind for special, more vigilant protection.

That's why you could never arrive at a workable, fair standard, which is my second problem with hate speech laws. Any hate speech standard would have to classify both the speech and the target group. Development of such a standard wouldn't be anything like a deliberative process - it would be an exercise of naked political power, and one that would likely trigger lots of hate speech. The process of enacting such laws and deciding on mechanisms to enforce them would be more venomous and poisonous than the Clarence Thomas hearings, because the stakes would be higher. If you think we have hate speech now - just wait.

The battle for protection will be won by the groups that are most cohesive, most vocal and most successful at marshaling their activists. There is a certain paradox in that "battle for protection" that proponents of hate speech suppression don’t acknowledge. The claim is that hate speech marginalizes people, and frightens them enough to drive them out of the public arena. Yet proponents of hate speech laws claim at the same time that these groups would be able to enact their wall of protection into law. It doesn't add up, unless you assume there is a group that is powerful enough to force the law through, yet benevolent enough to do it not from self-interest, but out of selfless regard for a weaker group. I'm guessing that enlightened liberals are the group they have in mind for this.

Alternatively, proponents might believe that the movement to enact these laws wouldn’t just represent one group, but rather a mix of marginalized groups – groups that are individually weak yet powerful when standing in shoulder-to-shoulder solidarity. That's my third objection, because it supposes that hate is always unidirectional - from the powerful haters to the oppressed victims. Never from one marginalized group to another marginalized group. Just a couple of Google searches will yield lots of hate speech by one victim group directed to another. Consider one example that is particularly hard to unravel - in a hypothetical hate speech trial involving this black, ex-Gay, Christian - would anyone be willing to wager on whether he would be the plaintiff or the defendant?

Since hate speech by one marginalized group against another is prevalent, hate speech laws could easily become another instrument of oppression. Divide and conquer has been long recognized as an effective strategy employed by the powerful, and selective enforcement of hate speech laws between one marginalized group and another is an excellent tool for promoting division.

I'm always puzzled by one particular sort of blindness. Given what we know about OJ juries, the manslaughter charges in Jena, and the Duke rape case, on what basis do we suppose that hate speech laws, which require reasoning about subtleties like intent, context, and the historical basis for group sensitivities, would be any more fairly executed than laws that involve facts, testimony and evidence? Those that argue for giving communities more power to jail people for speech have some obligation to explain why they expect anything approaching justice and fairness in their execution. I sense a sort of magical thinking in hate speech suppression advocates - clearly they believe that laws are unjustly and unfairly applied now, but these new laws will, of course, only be used with the most painstaking regard for fairness.

Finally, anyone arguing for hate speech suppression as a means for addressing injustice has an implicit, but deeply flawed, model of their use in overturning oppression. The hope is that marginalized groups, once granted protected from hate speech, will be empowered to seize their share of society’s benefits. But hate speech laws will greatly strengthen the power of the state. There is no basis to suppose that a marginalized group, once it successfully gains its share of the state's power, will repeal those laws. Human nature being what it is, the group or groups then in power will use these laws as a tool to extend a more rigid hegemony. The new order would enforce its newfound power by using hate speech laws against people who express anger at the new, unjust order.

So the best, but highly unlikely, outcome of hate speech laws, is a temporary relaxation of today’s injustice, at the cost of worse injustice later. The far more likely outcome is more hate, and more injustice, today.


Joshua L. Pappas said...

Very well reasoned and well written post.

Mizrepresent said...

I hear you. And thanks for visiting my blog. Hate speech, unfortunately goes beyond speaking your mind on a blog, it lies and formulates in the minds of those who don't know how much it hurts in the real world. I read many comments from posters after the Jena Six incident and i've experienced this hate head-on, with my own son and relatives. It is sad and i don't have the words to convey what i really feel, or think, but i will do all i can to prepare mine own for the insults, the hate that they no nothing about and hope and pray that one day this will come to an end.

Perdita said...

Interesting to know.