why hate speech laws can't work

Great Debates
21

The OP asserts that “hate speech laws can’t work.” I argue that his example is ridiculous, that hate speech laws can and do work, and, to re-iterate, that they are not inconsistent with constitutional protection of speech in a free society – they are complementary, and together they define the kind of society we want to live in, and our basic human decency.

Please stop dragging in your favorite out-of-context recollections yet again. It has nothing to do with the general question posited by the OP and my response to it.

On the specifics that you are inexplicably trying to link to the present discussion to somehow demonstrate that I don’t know what I’m talking about – which is a rather perplexing claim when applied to a subject that is entirely philosophical – my responses are as follows.

Whether or not Fred Phelps could have been charged under hate speech laws would depend entirely on the specific details of how such laws were written and interpreted. I’m of the opinion that such laws could be written without running afoul of a reasonable interpretation of free speech guarantees balanced against a larger public interest. Indeed Snyder v. Phelps was brought on the premise that such laws already exist with respect to the infliction of emotional distress. And if I don’t know what I’m talking about, then neither does Samuel Alito or John Paul Stevens. As I said before, Justice Alito stated that “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.” John Paul Stevens, by that time retired, stated that had he still been on the bench he would have concurred with Alito.

Secondly, yes, I have argued that the Supreme Court stated that burning crosses is protected speech. Because they did, in Virginia v. Black. This was a complicated case with multiple opinions and dissents but it largely centered on whether burning crosses was prima facie evidence of intent to intimidate, and concluded that it could be and could thus be limited, but it wasn’t prima facie evidence and must be considered a protected “message of shared ideology”. My view is that burning crosses represents the shared ideology which is, to quote Chris Rock, the ideology that would have your grandmother hanging from a tree. The ideology of a century of reprehensible racist violence. Which in my opinion is not identical to, nor deserving of the same protection as, say, the ideology of the Boy Scout merit badges. This is not an arbitrary distinction. Certain ideologies should be, and must be, flat-out unacceptable and unconditionally condemned. One hopes that basic human decency is part of what defines us as a society.

22

I’ve never heard anyone argue that it’s okay to burn a cross on someone else’s property.

If you want to burn a cross on your own property, many of us hold that to be a right, as a protected form of speech.

23

If you look back at the protected groups I cited, diesel mechanics and redheads were not among them. And I explained why we need such laws. You ignored it.

So you think that making up a ridiculous definition of “genocide” and then using it to establish a ridiculous conclusion somehow advances your argument?

So you think that making up a ridiculous definition of “sexual identity” and then using it to establish a ridiculous conclusion somehow advances your argument?

And incidentally, I don’t know about your society, but my society doesn’t “advocate violence” against anyone.

I already defined it. Go back and look.

You know what? We already have religious freedom. Yet we somehow manage to effect a reasonable separation of church and state, enact laws against polygamy, and get prayer out of public schools without too many of us getting our shorts in a knot about it.

24

Wolfpup at one point claimed that’s what R.A.V. vs St. Paul, argued when SCOTUS struck down a hate speech law in Minnesota that involved some kids who burned a cross on a black family’s lawn. He ignored the fact that the Court specifically ruled that this wasn’t protected speech because there were already laws against it. They struck down this law as well as the Virginia law he’s pointed to in this thread for being far too broad.

25

This seems to be quite a reversal of earlier positions. I remember you getting into a long rancorous battle with Tom and Miller in which you seemed to be arguing that you felt Fred Phelps would have run afoul of hate speech laws.

You also went much farther and claimed that SCOTUS ruled that burning a cross on a black family’s lawn was protected speech in the Minnesota case.

Have you forgotten or did I misremember? Apologies if I did.

26

Ah, here’s one where you both angrily complain about the First Amendmemt protecting Fred Phelphs, who as Miller and Tom point out, never threatened anyone and also claim SCOTUS protects the right of the KKK to “burn crosses on the lawns of black families”.

http://boards.straightdope.com/sdmb/showpost.php?p=18142484&postcount=53

27

Anyway, we’ve made clear the dangers of the slippery slope where you begin by only claiming you’re going to go after people who incite violence(for which we have laws) and then quickly go after people like Phelps who while loathesome “have never actually threatened or intimidated anyone”(as both Miller and Tom have pointed out).

28

The question of what constitutes a “threat” is a matter of interpretation and of existing law. I note that you studiously ignore my quote from Justice Alito. You and some of the justices and other posters may have one view of the issue, I and Justice Alito and John Paul Stevens and constitutional scholars and legislators in most first-world democracies have a different one. Who is right? No one – it’s a question of values, and specifically, of the kind of society one wants to live in. My point is, it’s absurd to argue that hate speech laws “can’t work” since you can look at all the countries out there where they’re working. Let’s leave it at that.

And no, there is no “slippery slope” as long as there is a constitutional guarantee of free speech, as I already pointed out. You need to make a damn good case for any limitation on it. Yet there are situations where such a case can be made. You may pretend to be amused by my use of the word “absolutism” but it refers to the belief that in no situation may any such case be made, which is clearly nonsense, yet many believe it.

I’ve made my point, and it does come down to values, and to some extent, to an eager willingness to dispense with the obvious benefits of government and beneficial legislative protections because some folks just don’t trust government, not in any circumstances, no matter what. In their view, anything and everything a government ever does just turns to evil. Most of the same folks who utterly oppose hate speech laws would also oppose any role of government in paying for their health care – they would much rather give their money to greedy corporations who exist only for profit and would be happy to let them die were it not for the government enforcing some small modicum of regulation against the very worst corporate malfeasance. It’s a question of values and culturally entrenched beliefs. I wasn’t hoping to convince anyone but I wanted to express my opinion of how wrong the OP was. And I’m going to leave it there.

29

So then you are saying you believe that Phelps should have been thrown in jail even though he never called for genocide or incited violence against anyone, despite earlier claims that hate speech laws should only be used on violent threats or calls for genocide?

Or have you changed your mind since this?

30

No, I have not changed my mind, and I don’t see anything in that quote that would lead you to believe that I might have.

These quotes from the Southern Povery Law Center about Phelps were written before his death and so are in the present tense, but they are a vivid illustration of the point I was making in that specific regard:
Fred Phelps and his 100 or so followers at the Westboro Baptist Church have made their mark on history by pumping out what may be the most crudely vitriolic and sustained expressions of unrelieved hatred of LGBT people in America today.

Although he does not physically attack gays and lesbians, Phelps calls for them to be tried and executed, and celebrates the death of those who do meet a violent end. Most famously, Phelps and his supporters picketed the 1998 funeral of Matthew Shepard, a gay student brutally murdered in Laramie, Wyo., carrying signs reading, “Matt Shepard Rots in Hell” and “AIDS Kills Fags Dead.”
When you consider that the relatively tame (by comparison) racist rants of Donald Trump have unsurprisingly been attributed as the inspiration for acts of violence against Muslims and Mexicans as well as protestors at his rallies, there is zero credibility in any assertion that Phelps’ vitriol was not responsible for a lot more.

And Phelps himself was only a stickler for legality when it came to exploiting the First Amendment, he wasn’t exactly an upstanding citizen upholding his rights otherwise …
Since 1951, Phelps has been arrested repeatedly for assault, battery, threats, trespassing, disorderly conduct, and contempt of court. He has been convicted four times, as well as disbarred, but has successfully avoided prison.
And the outrage against his actions has resulted in actual laws, not just in countries that support laws against hate speech, but in the US, too:
… his attempts to picket in Canada resulted in that country’s first hate-crime law, informally known as the “Fred Phelps Law.” Other legislation sparked by Phelps’ protests includes the federal “Fallen Heroes Act.” Passed in May 2006 after Phelps made headlines targeting the funerals of U.S. soldiers killed in Iraq, it prohibits protests within 300 feet of any national cemetery from 60 minutes before to 60 minutes after a funeral. Twenty states have since passed laws similar to the Fallen Heroes Act, while many cities, including Phelps’ hometown Topeka, have enacted local ordinances tailored to thwart Phelps.
Look, here’s the bottom line. I have no patience with those who go around patting themselves on the back because they believe that letting creatures like the late Fred Phelps do what they do represents some kind of virtue and proof of a free society. No, it’s a needlessly and stupidly blunt instrument that protects hate and poisons society. And it happens either because they don’t trust government to have the intellectual discrimination to distinguish between mindless inciteful hatred and disagreeable speech, or because they lack such intellectual discrimination themselves.

31

Specifically which ones? I would say the US justice system has clearly stated that what most people would absolutely consider “hate speech” to be protected by the 1st Amendment.

The countries (like the UK) which have enacted “hate speech” laws (that would clearly not pass the 1st Amendment test) have resulted in prosecutions (see examples above) for people using their freedom of expression. This is one case where the US constitution actually did it’s job and protected the citizens of the US from having their rights infringed upon.

Threats could be argued to an exception to the rule, but what constitutes a threat is an area of law that has been pretty well defined for centuries.

32

And THIS is why the 1st Amendment is a really good idea!

I would also add the other area that shows how good an idea it is (as demonstrated by other free democratic liberal democracies that don’t have it) is the recent(ish) Burqa ban in France. There are plenty of Americans who would say exactly that about banning Muslim headdresses in public. But even a complete reactionary conservative blowhard judge would throw such a law out, as it clearly contravenes the right of freedom of religion.

33

[Quote=wolfpup]
Hate speech can be usefully defined as speech that advocates genocide or violence against an identifiable group by race, ethnicity, religion, or sexual identity.
[/quote]

It is worth pointing out that this is not the legal definition used in most hate speech laws, at least not the ones in Europe that I’m most familiar with. They generally define hate speech as speech that promotes hatred against a given list of groups, not speech that advocates genocide or violence. [In England, for instance.](http:// U.K. Criminalization of Speech Is Really Starting to Scare Me)

Needless to say, the definition of hatred is subjective, and such laws give courts arbitrary power to punish or not punish certain speech. Charlie Hebdo, for instance, had to fight in court against such charges stemming from silly cartoons showing the Prophet Mohammed. Certainly those didn’t promote genocide or violence. Charlie Hebdo managed to win in court, but others have lost equally ridiculous cases. It is easy to imagine how aggressive atheists, or aggressive members of many groups, might run afoul of such laws.

34

Show me where I said the First Amendment wasn’t a good idea. If you got that out of anything I said, you’re not paying attention.

It’s too bad that the facts argue the exact opposite of what you’re trying to claim.

First of all, France has a long history of racial intolerance and Muslim segregation that has cultural roots and nothing to do with hate speech law or lack thereof. If you want to talk about anti-Muslim sentiment and burqa bans why not look closer to home – why not look at the US and Canada for examples? Because it’s really quite instructive.

A few years ago the Conservative federal government that Canada had endured for too long introduced a rule that said burqas could not be worn during citizenship ceremonies. This wasn’t a “burqa ban”, it was a ruling specific to the ceremony of taking the oath of citizenship, but there were two interesting consequences.

Consequence #1: A federal court overturned the burqa ban. The court ruled that under the Citizenship Act, citizenship judges must provide for all possible religious freedom, a requirement that itself is rooted in the Canadian Constitution, which has an article very much like the First Amendment guaranteeing freedom of speech and religious expression. Yeah, that constitution thing I keep talking about. It exists, even when you have laws against hate speech. In fact I’d say the spirit of such constitutional guarantees is especially respected when you have laws against hate speech. It may seem counter-intuitive, but read on.

Consequence #2: The government’s original position on the burqa became an election issue in which its general anti-Muslim stance was thoroughly rejected by the voters, throwing the government out of power last fall and giving the Liberal party a majority which they used to carry forward their program of admitting 25,000 Syrian refugees by the end of last month. Refugees who are being welcomed by communities across the country, burqas and all, in one of the most amazing outpourings of generosity I’ve seen in a long time.

Now let’s turn to the US and compare and contrast. Essentially all the Republican candidates for president want to ban Syrian refugees altogether, and the leading presidential candidate has staked his whole platform on Islamophobia and the premise that all Muslims should be banned from immigration. Someone started a thread here a while ago on the subject of having seen Muslims with burqas in a Walmart or somewhere and how they were being glared at and shunned and how people are just getting fed up with these Muslim interlopers.

And even without the xenophobic bigots running for the Republican nomination, anti-Muslim sentiment has already been institutionalized by government. The US may not have a burqa ban but it does have laws and regulations that provide for:

[ul]
[li]Delaying and denying Muslim immigrant petitions[/li][li]“Proxy denaturalization” through passport confiscation[/li][li]The no-fly list[/li][li]“Special registration” for Muslims[/li][/ul]
How much of this could be prevented with hate speech laws? Superficially, only the very worst of the hateful stereotypes that are being promulgated, maybe none at all depending on how the laws were written. But more subtly, looking at the long term associations, as a general rule laws against hate speech tend to be embraced by societies that place a priority on advancing racial and ethnic equality and have little tolerance for bigotry. Whether the laws promote a more egalitarian and accepting society, or whether it’s being egalitarian in the first place that promotes such laws, is a debate in itself. Which is cause and which is effect? Maybe it’s a little of both. But there seems little doubt that, all else being equal, the two are highly correlated.

As I said earlier, I have little patience for those going around patting themselves on the back for permitting hate speech from the likes of Fred Phelps and white supremacists as a sort of badge of freedom, because it’s not necessary for free speech to be protected with such a crudely blunt instrument. We should be smart enough to be more discriminating.

A valid point, but the argument that a certain type of law shouldn’t exist because it might be taken to an abusive extreme is an argument that can be applied to any type of law at all. It seems to be a rather pointless truism that reflects nothing more than the chronic distrust of government I was talking about earlier. And, again, this is why constitutional safeguards exist.

35

This.

36

Leaving aside the fact that many Canadian Muslims would dispute your claims about Canada, nor can we be sure that your presentation about the situation is anymore accurate than your repeated claims that the American courts have ruled that burning crosses on the lawns of black families against their wishes is “protected speech”, you claim that we shouldn’t worry about bad uses of such laws in France because France and French politicians have huge histories of bigotry.

Of course aren’t the people who draw up, enforce “hate speech laws” going to be the same people who draw up and enforce the “no fly list” you hate.

Beyond that, you began this by claiming you only would want people who explicitly incited violence, genocide and threatened people bot speakers who merely say nasty things about groups.

However, you then explicitly say you’d like to use such laws to jail Fred Phelps who engaged in bigoted, hateful speech, but never harmed anyone.

In fact, in earlier threads you’ve explicitly said that bigoted hateful speech calling for the death of Jews should be protected and you’d object to spokesman for groups like Hamas, while in Canada being punished even though such groups have killed huge numbers of Jews, including Jews who have no connection to Israel.

Now, why you want people jailed for homophobia who’ve never actually engaged in violence against gays or harmed a single one, who belong to an organization, the Westboro Baptist, which has never done so, but want representatives from groups that have killed more Jewish civilians than black civilians were killed by the KKK, I don’t know. However, it’s a clear example that even smart, reasonable people such as yourself, when given such power may engage in inconsistent application of it.

37

Unlike America which has never had ANYTHING like that! Racial intolerance in America? Who could imagine such a thing!

The difference between the US and France is not that America has no xenophobic bigots, have you heard Michelle Bachmann speak recently? I am absolutely sure her ilk could get Burqa bans passed by local (and maybe national) legislators in no time at all. The reason they haven’t is that even the most conservative pigheaded judge would throw them in short order. That is because Americans are protected by the first amendment.

38

You stated clearly that Fred Phelps style of hate speech should be made illegal. The only way this would be possible is by gutting the first amendment.

Countries that don’t have such explicit protections like the 1st Amendment, and have passed hate speech laws, have clearly restricted the civil rights of their citizens.

39

First off, Fred Phelps never had any followers outside his own family. He got infinitely more media coverage than his pitiful following ever warranted. The idea that 350 million people should have their rights infringed because of a nobody like Phelps is preposterous.

But if we take “hate speech” seriously… there’s a certain Doper whose tagline is a quote from Diderot, about how great it will be when the last king is strangled with the guts of the last priest.

Oooooh… that sounds kinda hateful to me. Even sounds like it’s advocating the murder of clergymen of my faith! Speaking as a Catholic, I feel threatened and unsafe when I see such things!

So, under the laws wolfpup is proposing, I think we can all agree Der Trihs should be hauled away and sent to prison for life.

Can’t be too careful.

40

Indeed. That’s kind of my point. White supremacists, neo-Nazis, Islamophobes, homophobes, and flagrant racists go about their business with complete impunity. At the moment at one such individual is the front runner for President of the United States.

[Emphasis mine.]
I guess you missed the part where I described the former Canadian Conservative government trying to enact a very limited burqa ban that would have applied only to citizenship ceremonies. Guess what happened?

It was thrown out in short order by a federal court. (I don’t know if the judge was “conservative” or “pigheaded”.)

That is because Canadians are protected by Article 2 of the Canadian Constitution.

It appears to be a uniquely American fantasy that other countries don’t have constitutionally guaranteed freedoms. See for example the link in my previous comment.

And hate speech laws don’t “infringe” rights, they protect them. Any right can always – always – be reduced to a question of balance between conflicting rights. Your right to make noise has to be balanced with my right to peaceful enjoyment. If your right was absolute it might be a pretty noisy place, with no actual benefit to anyone. Your right to free speech has to be balanced against my right to be free of threats and harassment. I don’t think anyone seriously questions these precepts. The argument against this position, at its core, stems from such a profound distrust of government that some believe that only absolutist interpretations of constitutional freedoms should be permitted, which is absurd since Supreme Court cases abound in which exceptions are clearly acknowledged.

This isn’t about Fred Phelps, although that provides a rather remarkable example of how absolutism is counterproductive. Phelps wasn’t a “nobody” to those families whose peace and dignity was viciously assaulted in a time of grief and symbolism, where peace and dignity was all they had left with which to honor their fallen sons. How you balance basic human rights says a lot about the kind of society you live in. See above.

Which is yet again a clear demonstration of how poorly some people understand what hate speech laws really are.