All western european countries have hate-speech laws. In 2008, the E.U. adopted a framework decision on “Combating Racism and Xenophobia” that obliged all member states to criminalize certain forms of hate speech. On the other side of the Atlantic, the Supreme Court of the United States has gradually increased and consolidated the protection of hate speech under the First Amendment. The European concept of freedom of expression thus prohibits certain content and viewpoints, whereas, with certain exceptions, the American concept is generally concerned solely with direct incitement likely to result in overt acts of lawlessness.
Yet the origin of hate-speech laws has been largely forgotten. The divergence between the United States and European countries is of comparatively recent origin. In fact, the United States and the vast majority of European (and Western) states were originally opposed to the internationalization of hate-speech laws. European states and the U.S. shared the view that human rights should protect rather than limit freedom of expression. Rather, the introduction of hate-speech prohibitions into international law was championed in its heyday by the Soviet Union and allies. Their motive was readily apparent. The communist countries sought to exploit such laws to limit free speech.” Gee, aren’t you shocked? The communists limiting freedom of speech? Or am I just exploiting the commie boogeyman here? Not to shock you, but this idea of “hate speech” originated in the U.N., gasp!
The (nonbinding) universal Declaration of Human Rights (udhr) adopted in 1948 by the U.N. does not include an explicit duty to prohibit hate speech. Article 19 simply secures “freedom of opinion and expression.” However, the drafting history shows that the issues of hate-speech regulation and restrictions on free speech were frequently discussed. During the negotiation of Article 19, the drafters faced the challenge of whether, and if so to what extent, freedom of expression should tolerate even intolerance. The majority of states favored a robust protection of free speech such as that set out in a U.S. proposal (un Doc. e/cn. 4/21), which read “there shall be freedom of speech, of the press and of expression by any means whatsoever.” However, the Soviet Union continuously proposed various amendments aimed at prohibiting expressions of intolerance. Intolerance of what, since the USSR has always been intolerant of stuff we tolerate, such as homosexuality? What they wanted prohibited was criticism of communism, and their methods of enforcing it!
Communism is hardly the only ism to promote repression of freedom of expression. The word Islamophobia was created by the Organization of Islamic Conferences to repress criticism or even evaluation of Islamic fundamentalism, as homophobia was created for the same purpose. What is true does not fear examination or criticism; Any philosophy, religion or lifestyle that wants to suppress those is by definition false.
“Congress shall make no law respecting an establishment of religion, nor abridging the freedom of speech, or of the press…” Do you recognize these words? Every attempt to curb free speech in America has run up against the First Amendment. Even though it is addressed to Congress, the wording clearly recognizes that freedom of speech is a basic right and the government cannot grant it, but only abridge it. However, not all speech has legal protection. There are two types of threatening or defamatory speech that can potentially be restricted by the law. One is speech or conduct that is likely to incite imminent lawless action such as violence. The second includes certain classes of speech, such as slanderous and libelous words, which can be restricted, if they meet the proper legal definition, by threat of civil suits.
How did the Soviet idea of “hate speech” and it’s tyrannical brother, “hate crime”, worm their way into American jurisprudence? Those ideas, the foundation of which is the implicit claim that we can accurately read someone’s mind and intent by their words and actions, rode to prominence on the back of the group identity-historical grievance dragon. Instead of worrying about the violent intent of individuals, hate speech advocates wanted to ban utterances, conduct, or writing that they deemed prejudicial against a protected individual or group. They were most successful on college campuses, spawning a rash of new speech codes and other imaginative methods to control what people say and think. In the name of diversity certain classes of people—racial minorities, women, and homosexuals—were considered to need protection from offensive language.
The shift from supporting freedom of expression to criminalizing and ostracizing both speech and implicit thoughts was not due to some heightened awareness of persecution so much as a new focus on generalizing the causes of the persecution. I call it, in deference to George Orwell, the NewNewspeak and NewThoughtcrime. Because that’s a mouthful, let’s call it NNNT. NNNT fails to distinguish between legitimate political content, which is protected by the Constitution, and explicit intentions to commit violence, which are not. Under the new rules, what may clearly be an expression of political opinion could be interpreted as offensive to anyone anywhere, and therefore arbitrarily deemed hateful. No direct threats of harm are even necessary. Certain ideas and opinions are now defined by the political content censors to be the moral equivalent of a threat to do violence and physical harm. They make no distinction between threatening someone with real violence and merely disagreeing with the facts and arguments. Nor do they make allowance for the possibility that a disagreement over facts and logic may have nothing whatsoever to do with feelings of hatred.
To assume that all disagreements are grounded in irrational fears is itself irrational. If it were otherwise, we might as well abolish not only our universities but our system of law: Both rely on the assumption that people are moral beings with the freedom to make choices. Without that assumption, people honestly could not be held accountable for anything. If it were all about presumed ill motives, especially those mandated by vague social forces, we might as well not bother to learn the facts about anything. Our pursuit of knowledge and justice fundamentally depends on open and honest debate, and to sacrifice that standard is not only to return to pre-liberal standards of controlling knowledge but to slide over into authoritarian methods of thought control.
Proponents of hate speech restrictions such as New York University Professor Jeremy Waldron believe that criminal intent to commit violence is irrelevant. All that is required for speech to be categorized as hate speech is that a person’s or group’s “dignity” is “under threat.“ From whom? What threat? “Dignity” that needs to be protected by suppressing speech (hate speech, the NewNewspeak) and criminalizing thoughts (hate crimes, NewThoughtcrime) isn’t dignity, it’s servitude. Put aside the huge difference between offending someone and meaning them physical harm. The bigger problem is that it is left almost entirely to the accuser to determine and apply the standards for defining dignity and therefore establish what is offensive and what is not. I am not making this up. The following is an excerpt of a letter that a Scottish pastor, David Robertson, wrote to Police Scotland superintendent regarding a poster. It has unfortunate implications for us.
Going home the other day I noticed a poster that said: Dear Bigots, you can’t spread your religious hate here. End of sermon. Yours, Scotland. “ This is part of a series which is also addressed to transphobes, homophobes, racists etc. The only problem is that this is produced by the Scottish Government and Police Scotland. You state that “A hate incident is any incident that is not a criminal offence, but something which is perceived by the victim or any other person to be motivated by hate or prejudice.” By your own criteria your posters, especially the one on religion is a hate incident. I perceive it as being motivated by hate and prejudice.
Why? In my day-to-day life I experience a great deal of anti-Christian prejudice, fuelled by ignorance and prejudice. Your poster will just add to that. You imply that it is religious people who are responsible for what you call homophobia and transphobia (although you don’t define what you mean by these terms–is being opposed to SSM ‘homophobia’? Is believing that a woman is a ‘female adult human’ transphobia? By not defining your terms you have of course left room for people to claim your support for anything that they determine is ‘phobic’).
The exclusive nature of the post is also disturbing–you sign it ‘yours Scotland’. You call your website OneScotland which distinctly implies that those of us who don’t agree with the political/ social ideology you are seeking to impose on us all, don’t really belong to Scotland. But this is our country as well as yours. You don’t have the right to call yourselves ‘Scotland’ – as though the rest of us don’t really belong here. Since when do you have the right to speak for the whole of Scotland? You put up this hateful, mocking, threatening poster in our name.
It can’t happen here? It is, just not as far along as Western Europe and Canada. This is a cancer criminalizing thoughts.