Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Eugene Volokh makes a powerful argument about the meaningless and arbitrary distinction between "fair criticism" and speech that is mocking or hurtful. He quotes Anthony Comstock, one of the most notorious censors in American history, trying to make the same distinction:
There is a vast difference between [a "respectable infidel" who simply expresses his disagreement on religious matters] and the one who seeks by scoffs and sneers to wound the feelings of those who differ from him, or who makes a living by blaspheming the name of God, and discusses those subjects that most closely concern the interests of the soul so as to provoke laughter and applause from thoughtless ones.
And Volokh notes:
Seeing this, I was struck by how similar it is to some of the arguments I've heard in favor of what I've called the "new anti-blasphemy laws," in America and elsewhere -- arguments that likewise often deploy the same distinction between "respectable" criticism of religion, which would supposedly remain protected, and "scoff[ing] and sneer[ing that] wounds the feelings." The distinction was unadministrable and unjustifiable then (as the U.S. Supreme Court ultimately realized in Joseph Burstyn, Inc. v. Wilson (1952)), and it remains so today. But it's worth remembering how it was deployed in the past, and how much speech has been restricted in its name.
Indeed, the law struck down in Burstyn sounds very much like those laws I've been criticizing in other countries, laws that prohibit speech that "abuses" or "insults" a religion. From the ruling:
New York's highest court says there is "nothing mysterious" about the statutory provision applied in this case: "It is simply this: that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule . . . ."
And the court rightly concluded:
Under such a standard the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments sacred to a religious minority. Application of the "sacrilegious" test, in these or other respects, might raise substantial questions under the First Amendment's guaranty of separate church and state with freedom of worship for all. However, from the standpoint of freedom of speech and the press, it is enough to point out that the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.
Quite right. And as I said in a comment a couple nights ago, I am struck by the similarities between those who have defended this type of censorship with the arguments made by Robert Bork about the need for cultural and moral censorship in America. In Slouching Towards Gomorrah, he makes virtually identical arguments about the need to restrict individual free speech rights in order to have a more ordered and civilized society.
"The alternative to censorship, legal and moral," he writes, "will be a brutalized and chaotic culture, with all that that entails for our society, economy, politics, and physical safety." He further says, "Without censorship it has proven impossible to maintain any standards of decency." Yet those who defend hate speech laws as necessary to prevent the degradation of society are likely to laugh at Bork's argument that moral restrictions on free speech are necessary to do the same thing. I say they're both wrong.
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Comments
That European laws that prohibit "insults" to religion even exist is the question.
Folks posting here within the past three days have offered evidence that mere insults are not prohibited, but that the speech must move beyond that to actively promoting hatred against a set of people.
On the other hand, some statutes in some places do appear to prohibit mere insults, so it is pretty murky.
Posted by: Gingerbaker | May 30, 2008 10:17 AM
Posted by: Tegumai Bopsulai, FCD | May 30, 2008 10:23 AM
Gingerbaker: the problem is that in the absence of any specific, objective and easily-verifiable distinction between "insults" and "promotion of hatred," no law can ban one without banning the other. How can I say something derisive or insulting about someone without "actively promoting hatred" against him/her? If I quote the most hateful nonsense a particular faux-Christian wingnut said, it will, inevitably (unless no one sees what I write), make others more likely to hate said wingnut and vote against whoever he endorses. How could I NOT be accused of "actively promoting hatred" against them?
The whole point of freedom of speech is to expose injustice and promote hatred against it, and its perpetrators, so that people will be motivated to take action against them.
Posted by: Raging Bee | May 30, 2008 10:34 AM
And you know, cartin' out The Crazy, by invoking Robert Bork is a little unfair, it seems. While I don't have a clue what he was specifically advocating for new restricted speech, the word "Bork" is a virtual synonym for unbalanced. Something tells me that the Europeans didn't use the sage Bork as a model for their laws.
I completely agree with you on the dangers and foolishness of anti blasphemy laws. Someone should write a book titled "Slouching toward the Taliban".
Posted by: Gingerbaker | May 30, 2008 10:37 AM
Gingerbaker: the problem is that in the absence of any specific, objective and easily-verifiable distinction between "insults" and "promotion of hatred," no law can ban one without banning the other.
The UK Racial and Religious Hatred Act 2006 requires that the words or behaviour be threatening (in the legal sense) and have the specific intent of fomenting religious hatred before an offence is deemed to have been committed. The legal definitions of "threat" and "intent" are already fairly well established, and apparently uncontroversial in most other instances.
This distinction is really no different to the existing legal distinctions made between speech that may be offensive or insulting, and speech that is actually threatening.
None of this is to say that I necessarily support such laws - merely that the sky is not falling.
Posted by: Dunc | May 30, 2008 11:24 AM
Oops, screwed up my blockquotes again.. First para should be blockquoted, and is a response to Raging Bee above, not to Gingerbaker.
Posted by: Dunc | May 30, 2008 11:28 AM
So if someone points at members of the Fundamentalist Church of Jesus Christ of Later Day Saints and says "They practice polygamy!" is that hateful, inciteful, insulting?
Depends a lot on who is saying it, and who is hearing it, and in what context.
Kind of a shame when openly admitted facts are taken as insults, though.
Posted by: BaldApe | May 30, 2008 12:19 PM
The UK Racial and Religious Hatred Act 2006 requires that the words or behaviour be threatening (in the legal sense) and have the specific intent of fomenting religious hatred before an offence is deemed to have been committed. The legal definitions of "threat" and "intent" are already fairly well established, and apparently uncontroversial in most other instances.
The problem is what is thretening or even worse guessing at intent.
If I stand up in public and quote verbatim from the Koran, the really nasty bits about setting ambushes for kaffirs and murdering them, my intent may be to educate then again it may be to rile people up so they go and burn down a mosque. Whose to know my intent other than me? Is it my fault that some may become so riled that they harm others?
The same problem applies in all areas of discourse.
Some things, such as shouting FIRE!!! in a theatre when there isn't a fire (just or fun) are rightly prohibited. But quoting what someone said or what is written in a book?
The law is very dangerous; of course the present set of politicians/judges/police etc are all honourable and don't wish to further restrict our freedoms, but consider what would happen if they weren't.
Posted by: Chris' Wills | May 30, 2008 3:09 PM
I'll add that when harm is done, intent is not particularly relevant to those harmed. That intent to do harm is needed to conclude guilt of a wrong doing is inane, imo.
That expressing dislike or hate for something is considered criminal is also silly.
However, if an individual coerces, encourages, or incites harm to others who are no threat to the individual or others then some degree of law is merited.
In any event, it appears to me that those who legislated the present law in question and those who enforced the law are guilty of perpetrating more harm than they are preventing.
Posted by: Ben Abbott | May 30, 2008 6:56 PM
As long as everyone is free to speak, then any "hate speech" can be countered by opposing speech. The problem, as Ed's court excerpt points out, is that once you start restricting speech the restrictions will always be unfairly applied. An even-handed restriction of speech is as mythical as "separate but equal".
Posted by: Taz | May 30, 2008 8:19 PM
Interesting that *religion* is singled out as a protected category. Neurophysiologically this is easy to understand: the relevant parts of the brain (those associated with religious experience) are highly nonverbal; emotions are chemicals; and the emotions that are associated with religion are private and intimate in a similar manner as those associated with sex. So it makes sense that people want to keep others' hands out of the most private regions of their gray matter.
As a logical matter, in terms of belief systems, if we're going to establish religion as a protected category, then we must also do the same for other belief systems that include statements about epistemology, ontology, theology, and ethics. This would include belief systems based on scientific methods, observations, and supported theories. Does anyone else here see what a messy big ball of tangled yarn that would become...?
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I'm pretty close to a 1st Amendment fundamentalist (as in "what part of *no law* don't you understand?"), but I'll draw the line at hate speech, suitably defined.
From the cognitive science perspective, hatred is a state of extreme hostility that circumvents rational thought and incites one to do physical harm to another. One might even say that it circumvents free will, and legally we also recognize that extreme emotion is a qualifier for the difference between a premeditated murder and a "crime of passion."
The law also recognizes that free speech does not include speech that threatens harm to another person: that type of speech is defined as assault (and the action of harming someone is defined as battery: thus, assault and battery consists of making a threat and then carrying it out).
An individual can be prosecuted for assault if they make a credible threat of physical harm to another person, e.g. "I have a baseball bat and I'm going to break both of your legs."
The way I would define hate speech is as "transitive assault" via intermediaries: a) the use of language that would qualify as assault if it was used directly by one person to another, and b) the use of language that meets the "reasonable person" test for "a reasonable person could foresee that..." the language would incite the listeners to commit battery.
For example, "You have a baseball bat, now go out and use it to break so-and-so's legs!" In essence the speaker is threatening the victim via the listener.
For example, stirring up hatred toward an individual and then providing the audience with that individual's home address.
These types of cases are fairly clear-cut: there is always a threat of harm or a credible means of doing harm.
Merely mocking a religion in general, or even a racial group or whatever, would not be sufficient. There has to be a credible threat. Thus the risk of a hate speech law, suitably defined, being used to suppress dissent or even constrain types of speech that are objectionable but not threatening, is minimal, and we can reasonably count on juries and appeals courts to provide redress in cases that are improperly brought.
Posted by: g347 | May 31, 2008 2:14 AM
There is a minor problem here, you are counting on juries and or judges to behave sensibly.
If I disparage a group for their actions or beliefs and the police arrest me I'll be incarcerated possibly until the trial (say 1 or 2 weeks on remand if the courts are running efficiently).
I then appear for trial,
1) say without a jury, and the judge is from the group I've disparaged or thinks that an example needs to be set or has been knobbled by some politicians or just doesn't like the fact that I don't bow before him/her then I'll be found guilty.
2) before a jury which, just happens, to have a group of people from the group I've insulted plus some others who also oppose free speech for their own reasons, then I'll be found guilty.
Oh yes, I could appeal but how can I afford that? Doubt that I'ld be granted legal aid.
Even if lucky and let off I've already been incarcerated for 1 or 2 weeks, interogatted (not pleasant I'm sure) and physically manhandled. I'll also be on the books as a troublemaker.
Free speech should be (I was going to write is, but it obviously isn't) a right not a gift from those in power and shouldn't be subject to the whims any group.
Posted by: Chris' Wills | May 31, 2008 6:33 AM
A Satanist might very well bring suit/charges against a whole bunch of mainstream churches under this sort of law, mightn't they? And then the Wiccans can point to that "Thou shalt not suffer a witch to live" thing.
I think that wise people of any faith should avoid opening this can of worms.
Posted by: Samantha Vimes | June 1, 2008 4:06 AM
Gingerbaker -
Folks posting here within the past three days have offered evidence that mere insults are not prohibited, but that the speech must move beyond that to actively promoting hatred against a set of people.
I have been spending an inordinate amount of time lately, stirring up hatred, disdain and even violent sentiments against a group of people. I have not advocated outright violence, indeed have cautioned others not to get violent (mainly for their own safety). I am sick and damn tired of the fucking thugs in my neighborhood dealing drugs in the streets and shooting at each other - often enough hitting an innocent bystander in the process. Not all of them are involved in violence, a good many don't even deal drugs. But they are an active part of this culture of violence that makes living in this neighborhood intolerable.
I absolutely despise these folks, as do most of my neighbors. I am all about inciting more hatred for them and solidarity against them. I am leaving here. I have options that many of my neighbors do not. I shouldn't have to move because of that, my neighbors who can't shouldn't have to live like that. The more who stand against these assholes, the more likely it is that they will be safe and we can get these assholes out of our homes.
Part in parcel with this, is a congruent drive to incite hatred for ignorance and people who choose to revel in it. It is the demonization of education that is largely responsible for the debilitating hubris. These are kids who feel hopeless enough, pointless enough that playing stupid games of which death, maiming and prison are all potential pitfalls is fun. For very little likely gain they choose to live with little regard for their own lives and none for those around them - including the vast numbers of us who just live here and have nothing to do with their bullshit.
So I am actively inciting hatred and disdain for two groups that have a lot of crossover, the willfully ignorant and gangsters/gangster wannabes. Quite honestly, my only real concern about violence being incited by what I have to say, is that the person who's had enough and tries to shoot one of these fuckers might get hurt or go to jail.
So this should be a crime? Because if the law is applied equally, it would be.
Posted by: DuWayne | June 1, 2008 7:44 PM
DuWAyne--
Look, nobody disputes that violent thugs are a problem and don't deserve much sympathy.
But think about what you are saying here. We have laws and such for a reason. If you were to go out and gather 20 people and tell them to take your available weapons and start a posse, then you are beyond the pale here, and committing a crime. Sorry if it's drug dealer or a bastard, but them's the breaks. I don't like child molesters and think they are scummy people but that doesn't give me the right to try and find them and tell people to do violence on them.
I have every right to say their behavior is reprehensible, though. So do you.
Yeah, i know it pleases certain atavistic parts of our brains to be Charles Bronson. But he's playing fictional characters for a reason.
The issues of gang violence and the like aren't so simple, despite what a lot of hollywood movies would tell you or Bill Cosby. I really understand your frustration.
But understand-- solidarity against the depredations of criminals is very different from advocating explicit violence.
There's also a vast difference between telling people you don't like someone and doing things deliberately designed to intimidate. That's why it's free speech to hold a Klan rally in a public place and not free speech to burn a cross on someone's lawn or tell someone that if they don't pay protection money you'll hurt them. The latter two are implicit or explicit threats of violence. (If that wasn't the case then I could extort money all over town by just saying "Well... I'd love your contribution to the local improvement fund but it's too bad." and then trashing someone's house or business -- after all, I've avoided an explicit threat).
Posted by: Jesse | June 1, 2008 8:27 PM
Hey Dwayne :)
So, you are saying that oppressed gays and Jews should be treated just like drug dealing murderers? Just kidding. ;D
As far as I can tell, hate speech laws are to protect the innocent and oppressed from bigotry.
I think you are safe. But are you sure you want to get ALL the dopeheads, dealers, and criminals off your streets?
After all, they have ideas and speech worth hearing, worth protecting, don't they? Don't you think it might be a valuable thing to hear their theories on why it should be perfectly fine to sell heroin to elementary school kids? Or pimp out your daughter? Shouldn't all ideas be equally represented in the "marketplace of ideas"?
No? You mean some ideas are so reprehensible and dangerous that they aren't worth hearing?
Funny - I think that is what the Europeans feel about a couple of things, too.
Posted by: Gingerbaker | June 2, 2008 7:26 AM
Jesse -
If you were to go out and gather 20 people and tell them to take your available weapons and start a posse, then you are beyond the pale here, and committing a crime.
I'm not doing that nor would I.
There's also a vast difference between telling people you don't like someone and doing things deliberately designed to intimidate.
I am however trying to do exactly this. I want my neighbors to stand up to and scowl at these assholes. I want these assholes to feel intimidated. I want them to feel alienated, like outcasts. They made a choice to be that way and I want them to reap what they so. I want them to know they are absolutely hated and despised.
I do not advocate violence. I do advocate intimidation to the extent that these people know they are not welcome here (or anywhere else).
Gingerbaker -
As far as I can tell, hate speech laws are to protect the innocent and oppressed from bigotry.
And there are fairly innocent people who glorify and emulate that lifestyle. Kids who just want to fit in and choose a very unhealthy, vile lifestyle to fit into.
But are you sure you want to get ALL the dopeheads, dealers, and criminals off your streets?
No. I have no real problem with people wanting to get high and getting high. I just want the criminals off the streets.
After all, they have ideas and speech worth hearing, worth protecting, don't they?
Not worth hearing, but definitely worth protecting. There is a huge difference between the two.
Shouldn't all ideas be equally represented in the "marketplace of ideas"?
No. Just equally protected.
No? You mean some ideas are so reprehensible and dangerous that they aren't worth hearing?
As they are not worth hearing, I can either choose to ignore them or respond to them as I see fit. Depending on the situation, I would be happy to and have responded to these thugs. My response has been to raise ire and hostility against them and those who emulate them.
Funny - I think that is what the Europeans feel about a couple of things, too.
The difference being that I don't advocate making anything they might have to say illegal. Just because I despise them doesn't mean they don't have the same freedom of expression as I do.
And I really do despise the things many of these assholes have to say. I am more than happy to encourage others to disregard these scum. If I can help foment a culture that refuses to put up with these people, who choose not to give them voice or audience - I will be thrilled. But I don't want to see laws that would force that. Rather, I want to see a culture that refuses to revel in that hate and chooses not to give them venue. That is how a bad idea is actually defeated. Laws against expressing the bad idea are never going to bring it to an end. Their mere existence is testament to it's existence.
You just don't get it. I despise a great many people and the horrible things that they have to say. Some are so preposterous and out there that no response is necessary. Others are far more insidious and demand a response. Sometimes I just get so pissed off that I have to respond. But as much value as I place on my right to respond, I also place on the rights of others to say things that make me feel that way.
Posted by: DuWayne | June 4, 2008 2:59 AM
They also protect bigots from innocent criticism. I would like to continue to be critical of the KKK, the ADF, the DI, and a whole bunch of other acronyms. But that means others get to be critical of things, groups and ideas I like.
I think the proper response to hearing these things should be, "Look kids, a moron in its native habitat" not, "Hello police?"
Here we get to one of the big problems I have with hate speech laws. It's a form of censorship. It's the government telling me what ideas are safe for me to hear, as if I'm not capable of evaluating them myself.
You say some ideas are not worth hearing. I ask, how do you know? Is it because you've heard them and rejected them? Imagine if you'd been shielded from that. How would you disagree with an idea you've never been exposed to? And what do you think is a more powerful in countering bigotry, taking the government's word that it's bad without ever hearing hateful speech, or hearing it and evaluating it's merit for yourself?
Posted by: Abby Normal | June 4, 2008 10:18 AM