Why We Should Resist it With Free Speech, Not Censorship
Table of Contents
Distinguishing between vile words and violent conduct
U.S. law's appropriate distinction between protected and punishable discriminatory speech
More speech, not less
"Top 10" conclusions
What is "hate speech"?
"Hate speech" laws endanger both freedom and equality
Why should we specially protect "verbal conduct"?
Beyond the First Amendment
The U.S. law approach has substantial international support
"Hate speech" laws long were opposed by other democracies
The anti-democratic enforcement of "hate speech" laws even in democracies
Private sector institutions should protect speech
Cost-benefit analysis of "hate speech" laws
President Obama's opposition to "hate speech" laws
Distinctions between punishable and protected discriminatory speech
Under U.S. law, much discriminatory speech may be punished, and all may be condemned
The multiple contexts in which discriminatory speech may be outlawed
Punishing discriminatory speech under the emergency test
--Punishable fighting words
--Hostile environment harassment
Facilitating criminal conduct
Civil lawsuits by private citizens
Invasion of privacy
Intentional infliction of emotional distress
Group defamation claims undermine free speech and equality
Constitutionally protected "hate speech"
The content neutrality and emergency principles: essential pillars of liberty and equality
"Hate speech" laws' inherent vagueness and overbreadth
From the frying pan to the fire: too flexible or too rigid
One person's hateful, hated speech is another's loving, cherished speech
Endangering minority views and speakers
Targeting minority groups
Campus "hate speech" codes
Social media bans on "hate speech"
Current targeting of marginalized views in comparable democracies
France: Bob Dylan criminally charged because of a statement in a magazine interview
Britain: European Parliament candidate arrested during a campaign speech
for quoting Winston Churchill
Netherlands: Member of Parliament convicted because of a question he asked at a political rally
Denmark: Member of Parliament and three other public figures convicted for criticizing aspects of Islam
Sweden: Political party leader convicted for assertion about immigrants' crimes
Austria: A citizen's Facebook post criticizing a public official is deemed "hate speech" that Facebook must delete worldwide
Many European countries: Christian and Muslim religious leaders charged for quoting their sacred texts
The slippery slope
Would censoring constitutionally protected "hate speech" reduce its potential harmful impact?
Would "hate speech" laws reduce any feared harm?
Targeting only blatant expression
Driving some expression underground
Incentivizing more palatable speech
Increasing attention and support
Would "hate speech" laws reduce inter-group hostility, retaliatory violence, psychic harms?
No correlation with reduced discrimination or violence
The rise of Nazism in Germany despite "hate speech" laws
No inter-country correlation
No intra-country correlation
Would "hate speech" laws have a positive symbolic value?
What potential contribution does constitutionally protected "hate speech" make to the feared harms?
Inherently limited contribution
Studies about violence and pornography
Countless contributory factors
Some discriminatory speech does not spur negative psychic reactions
"Hate speech" law advocates cite much discriminatory speech that is already punishable
Substantial factual changes since the pioneering legal articles advocating "hate speech" laws
Increasing counterspeech by disparaged people
The cost-benefit analysis so far
What non-censorial measures would reduce the feared harmful impact of constitutionally protected "hate speech"?
All of us
Developing thicker and thinner skin
Monitoring discriminatory violence
Improving police interactions with minority communities
Proactive outreach and interaction
More inclusive campuses
Self-restraint and social pressure
What are the potential costs of "hate speech" laws?
What potential costs to equality and societal harmony?
Undermining a mainstay of equal rights movements
Deflecting responsibility from people who engage in discriminatory conduct
Disempowering disparaged people
Diverting us from more effective strategies
Undermining constitutional challenges to discriminatory policies
What potential costs to free speech and democracy?
Freedom of speech's intrinsic and instrumental value
Freedom of speech is essential for individuals to form and express their thoughts, for individuals to convey their emotions, for democratic self-government, for defending all other rights
Essential protection of messages that are disfavored or feared to have a general bad tendency
Dangers of subjective criteria in speech regulations
Speech conveying disfavored ideas may well be self-refuting
The appropriate response to disfavored speech is counterspeech
Government may not suppress speech to shield unwilling listeners in public places, to outlaw certain words, because it is motivated by hate, because it is hurtful, due to feared retaliatory violence
Government may censor speech in accordance with the emergency principle
The comparative risks of freedom and censorship
"Hate speech" laws' costs outweigh their benefits
Do It Yourself challenge: Try to craft an acceptable "hate speech" law
How should a "hate speech" law define the newly punishable subset of what is now constitutionally protected "hate speech"?
What personal characteristics should it protect?
Should it protect beliefs?
Should it bar statements about historical events?
If it requires any showing about potential harm, what kind of potential harm, how likely should it be to materialize, how direct and imminent should the connection be between the speech and the potential harm, should the potential harm be assessed by a subjective or objective standard?
What mental state should be required?
Should the speech have to target an individual or small group?
Should it extend to speech in private places, and to personal conversations?
Should it take into account the identities of the speaker and the disparaged people, any other contextual factors?
Should it provide any affirmative defenses?
Should it exempt speech by public officials or candidates?
Should it be criminal or civil?
What remedies and penalties should it provide?
Should there be any threshold procedural requirements?
How have you done?
APPEN DIX A: Protected personal characteristics and beliefs under various "hate speech" laws
APPENDIX B: Punishable messages under various "hate speech" laws
Conclusion: looking back - and forward