Criminalization of the ´hate speech´.

Manipulación del lenguaje

Prague, 23.8.2023

David Thunder is Professor of Philosophy at the University of Navarra. In addition to his teaching activity, he publishes articles in his blog. He brings together the intellectual heritage of the USA and the Latino, or rather, Spanish. We offer one of his most recent publications on hate speech and its implications.

Original English article:

Thankfully, there is a silver lining in the cloud for the United States. There – at least for the time being – citizens are protected from government-imposed hate speech laws by the First Amendment, which stipulates that “Congress shall make no law…abridging the freedom of speech, or of the press,” a stipulation that also applies to each individual State government. As long as this article of the constitution is rigorously enforced, hate speech rules can only be imposed by private institutions in the United States. That is small consolation to someone who is suspended from Youtube for uttering uncomfortable truths, but it is better than nothing.

In Europe, by contrast, we do not have a constitutionally enshrined free speech culture as strong as that of the United States, so both governments and private institutions may capitulate to ever shriller demands of leftist lobbies to censor and sanction anyone who dares question any of their favourite causes. Under these circumstances, it is perhaps an opportune moment to recall why criminalising speech is a terrible idea, that should have no place in a free society.

So here are five considerations telling strongly against the criminalisation of political and scientific speech:

1. Criminalising speech will not improve social mores – indeed, it is likely to corrupt them.Sometimes, advocates of hate speech claim they want to promote a more tolerant or respectful society. But criminalising bad thoughts or sentiments will only drive them underground, and if anything, feed resentment and hatred by creating one set of rules for the politically correct, and another for those who question political orthodoxy. The rebound effect can be powerful. Law is a crude instrument, not designed to micromanage complex social problems.
2. Thenotion of a speech crime converts the law into a partisan instrument of political ideology. The harm inflicted by offensive speech – setting aside clear-cut cases like shouting “fire” in a movie theatre or publicly advocating violence against other citizens – is extremely subjective and often comes down to people’s political leanings. A leftist will tend to view conservative opinions as harmful to individuals; a conservative may view leftist opinions as harmful to the common good.
3. The incredible vagueness of the notion of a speech crime is a handy tool for wanna-be despots.For example, the notoriously vague notion of a “hate crime” will inevitably be used to prosecute citizens who do not share the political opinions of the prosecutor or judge. A case in point: recently, a Mexican was convicted for “digital hatred” and “political violence” for insisting that a biologically male trans individual was a man. This is clearly a case of prosecuting someone because they state a political opinion at odds with the politics of a judge or prosecutor. Pandemias de las ideas
4. Speech crimes corrupt our legal system by removing certainty from the law.Because there is no well-defined or publicly agreed meaning to such crimes – because they are so vague – they remove certainty from the law. The properties of speech crimes are so vague and subjective that you might as well toss a coin or consult the politics of the prosecutor in order to ascertain whether you are likely to be prosecuted or convicted for a hate crime.
5. Speech crimes have a dampening effect on political speech.With hate speech laws on the statue books, citizens will refrain from speaking their mind publicly on issues they believe prosecutors or judges will frown upon, for fear of being fined or jailed. So the criminalisation of speech deals a severe blow to freedom of speech, one of the pillars of a democratic society.

The battle for free speech is a battle for the minds and hearts of citizens. If we fight this battle exclusively in the legal domain, without engaging with the culture and helping each new generation of citizens internalise the value of freedom of speech, we should not be surprised if the law is superseded by an illiberal or authoritarian culture.