Views expressed not necessarily those of the Free Speech and Secular Society
Whether or not hate speech should be included within the ambit of protection offered by the right to free expression is perhaps one of the most contentious issues within the free speech debate. What is often lacking from this debate, however, is a workable definition of what hate speech is. Indeed hate speech means many different things to different societies and attempts to criminalise it are vastly different as a result.
A discussion on the definition of hate speech is not just pointless semantic agitating. What we consider hate speech to be is directly relevant to how justified it is to criminalise it, or use accusations of it to no-platform, lambast and discredit others. Alex Brown, in his impressive analysis of the topic, Hate Speech Law: A Philosophical Examination, attempted to demarcate all the different forms of hate speech. He arrived at 10 separate categories. For the sake of brevity I will look into only two. Consider the two following speech acts:
Example 1: A man aggressively approaches a black person on the train and, without touching him, gets in his face and shouts, using racially offensive terms.
Example 2: A man writes a blog post in which he argues that black people are inferior to white people.
It is likely that both of these examples would be referred to as hate speech. Yet these two behaviours are significantly different in almost all interesting respects.
First, the harm caused by example one is an individual harm. The victim is an identifiable person who has had foisted onto their lives a targeted attack. It is possible that the victim would have apprehended violence, been distressed and potentially suffered other psychological and emotional harms which would be identifiable to a judge in a court.
Example two has no similar primary victim. It is a diffuse statement targeted at the general public (or whatever portion of the general public are readers of the blog). While there may be offense taken by people who happen to read the blog there is no individual harm comparable to that seen in example one. The harm that potentially accrues from example two relates to the risk that people will be convinced by the ideas expressed in the blog and act upon them.
This brings me to the second difference. The man shouting on the train is not, in any meaningful sense of the term, communicating ideas. He is creating an extreme level of discomfort for his fellow citizen through racial verbal abuse, but there is no real attempt to insert into society any perspective, knowledge or argument.
The racist blog writer is communicating ideas. His ideas are foundationally stupid and without rational basis, but he is undeniable making an entry into the market place of ideas. He is making falsifiable claims of a scientific or sociological nature.
The extent to which an element of speech can be said to be communicating an idea directly relates to the third difference I want to emphasise: It is often said that the best way to counter hate speech is more speech. But of our two examples this only really rings true for the blog. An effective way to remedy the blog entry would be to create articles, blogs, posts, speeches and campaigns that highlight the factual inaccuracy of the assertion of racial superiority. Indeed such a campaign would be even more valuable were it to highlight the racism that underlies this scientifically ridiculous claim.
This logic cannot be applied as cleanly to the shouting train man. A rational exposition the factual inaccuracy of racism is unlikely to be an effective piece of counter speech for a man bellowing in your face. Indeed to offer counter speech in example one might risk escalating the situation and making it worse, or even violent.
From this exposition we can see that these two forms of ‘hate speech’ have different harms, different values and different vulnerabilities to counter speech. This can allow a person to favour criminalisation of some forms of ‘hate speech’, but not others. Indeed, as may be clear from the tone of the above discussion, I view the speech in example one as being potentially worthy of criminalisation yet view the speech in example two as worthy of free speech protection.
British criminal law does not share this view, considering it necessary to criminalise both. It does, however, acknowledge the difference by criminalising the different speech acts through different laws: The shouting train man would be prosecuted under provisions which criminalise the intentional causing of harassment, alarm and distress (section 4A Public Order Act 1986) whereas the blog would be prosecuted under incitement of racial hatred laws (section 11 Public Order Act 1986).
Unfortunately this distinction broke down in the minds of some politicians who supported the extension of the incitement of hatred laws to protect religion. During the debates on this law many parliamentarians justified the criminalisation of incitement of religious hatred, a law which criminalises the type of speech seen is example two, by giving examples of the types of targeted vilifications seen in example one. To give an illustration, Emily Thornberry MP offered the following example:
“A young lady on her way to the Elizabeth Garrett Anderson school is on the bus with her head covered. A man starts shouting at her and abusing her because she is a Muslim”
It should be clear to the reader that this type of targeted verbal assault fits squarely within example one and yet it was being used to justify the criminalisation of incitement of religious hatred, which refers almost entirely to the types of speech (blogs, speeches, articles etc) in example two.
Misunderstandings such as these can lead not only to poor public understanding of the law but more importantly can lead to speech being criminalised under false pretences. Politicians, free speech campaigners and social justice advocates should all make an effort to be much clearer when they speak about hate speech.