June 8, 2018 2:14PM

“Hate Speech” Laws Undermine Free Speech and Equality

Having no specific legal definition, “hate speech” is a vague term. It is generally understood to mean speech that expresses hateful or bigoted views about certain groups that historically have been subject to discrimination. Concerned by the impact of hate speech on vulnerable populations, social justice advocates see sense in restricting this type of speech.

However, these types of laws often fall hardest on the very people they are intended to protect. Nadine Strossen explores this idea in her new book, Hate Speech: Why We Should Resist It with Free Speech, Not Censorship. (Hereafter all page citations are to this book).

Strossen draws attention to the fact that prohibitions of “hate speech” are characterized by unavoidable vagueness and overbreadth.  A law is “unduly vague” (and unconstitutional) when people “of common intelligence must necessarily guess at its meaning.” “Hate speech” laws are inherently subjective and ambiguous in their language, with the use of words like “insulting,” “abusive,” and “outrageous.” Specific to laws about speech, vagueness “inevitably deters people from engaging in constitutionally protected speech” (69).

One person’s “hate speech” is another’s anti-“hate speech.” Strossen cites many examples in which certain religious views are assailed as “hate speech” against LGBT individuals, while critiques of those religious views are attacked as anti-religious “hate speech.”

This issue is also prevalent on campus, exemplified by a situation at Harvard University in which a group of students hung a confederate flag from their dorm room. In response, other students hung swastikas from their windows.

Strossen notes the irony of the situation:

Of course, the swastika is deeply identified with Hitler’s anti-Semitic and other egregiously hateful ideas, not to mention genocide. However, the Harvard Students who hung the swastika were trying to convey the opposite message, condemning the racism that the Confederate flag connoted to them by equating it with swastika. So should these swastika displays count as “hate speech”—or as anti- “hate speech” (78-79)?

Deciding what should count as “hate speech” leaves room for decision-makers to err or disagree about whether an expression constitutes “hate speech.” This arbitrariness of these laws on campus means that “...all members of the campus community face enforcement that is unpredictable and inconsistent at best, and arbitrary, capricious, and discriminatory at worst” (77).

Moreover, “given the pervasiveness of individual and institutional bias,” the government is likely to enforce “hate speech” laws, as it has other laws, to the disadvantage of the disempowered and those with unpopular ideas. David Cole, ACLU legal director reiterates this point:

Here is the ultimate contradiction in the argument for state suppression of speech in the name of equality: it demands protection of disadvantaged minorities’ interests, but in a democracy, the state acts in the name of the majority, not the minority. Why would disadvantaged minorities trust representatives of the majority to decide whose speech should be censored (81)?

Strossen observes this phenomenon even in countries with established democratic governments. Take Canada, for example, which is more willing to restrict certain forms of speech than the United States. The Canadian Supreme Court explains the word “hatred,” (as used in their laws) as “unusually strong and deep-felt emotions of detestation, calumny and vilification”; and “enmity and extreme ill-will . . . which goes beyond mere disdain or dislike.” How confident would you be in distinguishing between speech that conveys “disdain,” which not punishable, and speech that conveys “detestation” or “vilification,” which is punishable? The consequence of this innate vagueness and overbreadth is illustrated in the following case:

Canadian customs seized copies of a book being imported from the United States because it was dangerous, racist and sexist. The book was Black Looks: Race and Representation by bell hooks, African-American feminist scholar who was then a professor at Oberlin College. hooks describes the impact of this decision in “Outlaw Culture: Resisting Representations”:

It seemed ironic that this book, which opens which opens with a chapter urging everyone to learn to “love blackness,” would be accused of encouraging racial hatred. I doubt that anyone at the Canadian border read this book: the target for repression and censorship was the radical bookstore, not me…it was another message sent to remind radical bookstores—particularly those that sell feminist, lesbian, and/or overtly sexual literature—that the state is watching them and ready to censor.

Thus, “hate speech” laws are enforced against the certain groups they try to protect. We must resist solutions that embrace censorship, as hate speech laws fall hardest on those they aim to protect. Instead, we should favor the liberal solution, more speech:

Just as free speech always has been the strongest weapon to advance reform movements, including equal rights causes, censorship always has been the strongest weapon to thwart them. That general pattern applies to “hate speech” laws, even though they are adopted to advance equality (81).