Sunday, September 25, 2011

Making hate speech a crime?

Today, via this blog, I came across this essay, written by an abortion rights activist.  It's a thought-provoking essay, no matter what you might believe about the points she makes.  It addresses the inevitable dilemma regarding free speech and its consequences.  No sane person could rationalize the act of falsely yelling "Fire!" in a crowded theater - the hackneyed example of a limitation on free speech.  A while back, I wrote my own essay on the subject of free speech.

I'm not going to repeat all Ms. Arthur's arguments or go through them point-by-point here.  The problem, as I see it, boils down to words and their consequences.  It would be extremely naive to suggest that words are just words and have no impact other than what we choose to allow them to have (although I've made arguments to that effect).  My right to free speech ends where it infringes on your rights as a human being.  As already noted, after all, there are justifiable limits we've imposed on the right to free speech.  Hate speech against someone, especially from a public forum, can inspire violence, even if the words contain no explicit call for violent action.  The example Ms. Arthur gives of Bill O'Reilly's comments about Dr. Tiller, the abortion provider, make it clear that even though O'Reilly does a marvelous Pontius Pilate imitation when it comes to accepting any responsibility for Dr. Tiller's murder, it seems pretty obvious to me that he should be called to account in some way for his very public and very provocative comments.  Mere words can have fatal consequences, it seems.

But we have a dilemma.  If we make "hate speech" a crime, then its implementation would have to be very narrowly prescribed.  Who among us has, at one time or another, not made strongly critical or even offensive remarks about someone else?  Just where might we be able to draw a line separating such instances from prosecutable, criminal hate speech?  How many children (and adults!) engage in verbal bullying of others?  Lately, we've seen that such verbal bullying can result in terrible consequences - suicide or violent rampages by the target for such words.  Should we prosecute any and all bullies, putting them in prison with thieves, murderers, and rapists?

Moreover, I find it pretty naive to believe that making hate speech a crime is going to eliminate hate speech, and make us a more tolerant society.  Prosecution for theft, murder, rape, etc. hasn't caused those crimes to disappear, after all.  Tolerance isn't going to become widespread if we make intolerant words a crime - rather, we'll only have made criminals out of people whose only crime is intolerance.  The Westboro "Baptist" Church strikes me as a classic target for hate speech prosecution, and I just can't see how putting them behind bars (as detestable as they are) is going to be the key to developing a society willing to embrace all people.

Insofar as I can tell, we humans aren't wired for tolerance.  Some of us may have the ability to overcome our tribalism by sheer will power and a commitment to rationality.  But the "us vs. them" mentality is so pervasive that "hate speech" is pretty much everywhere.  If I accuse a religious fanatic of being an "idiot" for saying that I'm going to hell because I don't accept his/her religion, is that "hate speech" that makes me liable for prosecution under a statute outlawing hate speech?

In some circles, using the word "nigger" (spoken by white person) is considered hate speech.  Not only is it seen as being "politically incorrect" - it's seen by some as an incitement, rather than a mere word.  If we start to "sanitize" free speech - to restrict it in ways that go far beyond the existing restrictions (many of which are listed in Ms. Arthur's essay) - by criminalizing "hate speech", then we'll have gone too far in restricting free speech.

We need to keep in mind that the Constitutionally-guaranteed right to free speech is not restricted to those words with which we agree or condone!  If "hate speech" does wind up producing criminal actions, then we should prosecute those crimes, rather than adding the words that might have inspired them to the list of criminal acts.  There's nothing in words that forces people to act in unlawful ways.  Our actions are choices we make as individuals.  Restricting free speech in this way simply inhibits the discourse among free people that we Americans traditionally have valued so highly.