Hate Speech Laws and Gored Oxen

This story illustrates perfectly the problem at the core of hate speech laws of the type that so many of our Western allies have. I've documented many times what goes on in England whenever anyone reports an anti-gay statement made there. Scotland Yard sends out detectives to investigate. Now I give you the other side of the coin:

A CRIMINAL investigation has been started by Scotland Yard into an advertisement from the Gay Police Association (GPA) that blamed religion for a 74 per cent increase in homophobic crime.

The Times has learnt that the inquiry into the advertisement, which was carried in The Independent, was ordered by the unit set up to counter hate crimes such as homophobia.

The advertisement depicted a Bible beside a pool of blood under the heading "In the name of the Father". It appeared in the newspaper's diversity supplement to coincide with the Europride event in London.

This is why hate speech codes are so dangerous and must be opposed, and it illustrates exactly why those who favor them as helping some minority group should rethink their position. Giving government the authority to police speech is the last thing that gay rights advocates should favor because that power can easily be turned against them as well. And once we've begun to punish "hate speech", we all become targets. We all oppose some ideology or another, and our own statements of opposition can just as easily be interpreted as actionable in that regard as well.

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We all oppose some ideology or another, and our own statements of opposition can just as easily be interpreted as actionable in that regard as well.

Maybe the objective is that we should never feel that passionately opposing something or someone is permissable. Maybe the goal is that we should all become wishy-washy, relativistic wafflers who never say anything that might sound like we're against someone, because it might hurt their feelings.

What, you're not in favor of hurting peoples' feelings, are you?

Well, if the people in question are stupid gits, I am, in fact, in favour of telling them that they are stupid gits. Loudly and obnoxiously. The hurt feelings of stupid gits take distinctly second place to warning society of the fact that they are, in fact, stupid gits.

- JS

The article isn't clear, but I suspect that two different laws are involved here. The law against incitement to religious hatred is a recent one and that, from Widdicome's response seems to be what is being investigated. There was a big campaign against it, mostly because it was so ambiguous and badly worded, but tI think it got through in the end. I seem to remember the government accepting it was veryopen, but saying the courts would do the right thing with individual cases

By G. Shelley (not verified) on 28 Aug 2006 #permalink

Maybe the objective is that we should never feel that passionately opposing something or someone is permissable. Maybe the goal is that we should all become wishy-washy, relativistic wafflers who never say anything that might sound like we're against someone, because it might hurt their feelings.

What, you're not in favor of hurting peoples' feelings, are you?

Well, maybe that is the goal. Warm chicken soup is pleasant and therapeutic while very hot chicken soup scalds the lips and tongue.

I'm not sure that the goal is to become wishy-washy, relativistic wafflers as much as guide people to be rational vs. emotional and drive arguments off the streets and into courts where they can be reasonably mediated. I have a clear litmus test in my mind on these types of issues:

1. Is the government acting in good faith -- i.e, is the stated and functional goal one of keeping the general peace, or is it to undermine one group's point of view in preference for another's?

2. If it is doing the latter, is it obviously justified such that the groups and ideas being marginalized deserve it?

3. Do I feel so strongly about this that I'd grab a gun or some other such persuasive instrument in order to defend safety or right an injustice? Apparently, the ballot is not an effective instrument in many western democracies.

4. And lastly, do I prefer to use this decisive instrument of persuasion over my need to cut the grass. I really hate an unkempt lawn and get emotional over that.

I don't get the general argument that stupidity is best countered by getting all giggly and pointing it out (mostly with the intention of peeling the scab of the party identified as stupid). I guess it goes with the logic of stupid speech is best countered by speech not deemed stupid by the responder although I'm not sure if it's meant to pursuade the subjective reader or the objective reader.

Oh, and that term, fisking. Lovely. Can we start using hitchensing to denote drunken ramblings? ...like mine?

As a Brit, I entirely agree about the dangers of hate speech legislation. The possibilities of such legislation being abused in order to suppress speech found to be offensive rather than an incitement to violence or other criminal activity is just too great.

I would hope that if this investigation leads to those responsible for the advertisement being prosecuted, that the court applies a stringent test to distinguish between speech that is merely offensive to a particular group and that which is a clear incitement to criminal behaviour.

On the face of it, the advertisement does not appear to be an incitement to violence against religious believers. It simply alleges, based on statistics on crime, that homophobic crime inspired by religious belief has risen by 74% in the last year.

If charges are brought by the Crown Prosecution Service, you could have an absurd situation where the victims of crime are prosecuted for offending those responsible for committing the offences.

Whatever happens, a defence is available under Article 10 of the European Convention on Human Rights.

By Ian H Spedding FCD (not verified) on 28 Aug 2006 #permalink

This is why we need a constitution. British attitudes to freedom of speech are terrible; when Billy Connolly hit the news for making offensive jokes, everyone said he shouldn't be allowed to say those things. Then a little while ago some postmen refused to deliver election leaflets for the British Nationalist Party (who want to repatriate every non-White citizen). How can they think it's appropriate to try and stop a political party getting democratically elected? Yes, they're horrible - so don't vote for them.

". . . hate speech codes are so dangerous and must be opposed"

Ed, I think you're exactly right on this issue. Each of us is probably tempted at least a little to support a law that seems to silence those "other people" who seem clearly wrong. But silencing someone we think is wrong will almost inevitably end in silencing those we think are right. The only workable solution is free speech for all opinions.

Ted wrote:

Is the government acting in good faith...?

This question ignores the fact that the harm done by hate-speech laws is not done solely by government action, but by the actions of individual plaintiffs filing complaints under the laws. So the question should be, Can someone acting in bad faith twist or exploit the wording of the laws to achieve an end that is contrary to the stated -- and widely understood -- intent of the law? And normally in cases where the text of a law includes vague concepts such as "offense," "hurt" or "ridicule," whose existence is determined solely by statements of the plaintiff (they say they were "offended," therefore they were offended), the answer ends up being "yes."

Raging Bee, is there such a law? That is, is there a law (in the UK, Australia,
Germany, or wherever) whose violation "is determined solely by statements of the plaintiff"?
I haven't done a great deal of research on the matter, but in all of the cases I do know
of, such is not the case, and there is a much higher standard.

By Greg Byshenk (not verified) on 28 Aug 2006 #permalink

I'm not sure that the goal is to become wishy-washy, relativistic wafflers as much as guide people to be rational vs. emotional and drive arguments off the streets and into courts where they can be reasonably mediated.

That might be the goal, but it is also absolutely out of the realm of what the government is entitled to enforce. The law doesn't exist to make us rational, because it doesn't exist to regulate our thoughts in the first place.

luna: thanx for the link...

It is quite conceivable that a religious group which stresses these biblical themes could be considered by the courts to be expressing religious hatred against other faiths, and thus be found guilty under the proposed bill if it were to become law. Even a single sermon could result in a charge being laid under the law against a pastor.

It is equally conceivable that a religious group which criticizes and attacks these same Biblical themes could also be so prosecuted. A lot depends on who's filing charges on a given day, how good a legal team they can afford, and how convincing a sob-story they can cobble up. (Karl Rove could make a killing as a Sob-Story Consultant.)

So the question should be, Can someone acting in bad faith twist or exploit the wording of the laws to achieve an end that is contrary to the stated -- and widely understood -- intent of the law?

I'm not sure that I understand your point without a specific example, but I think it's an interesting question.

A corollary to this question is, "Are there legal trolls that look at enrolling the public at large into a dogmatic defense?" I think the answer is yes -- the trick is to understand the basic motivation of the people in question -- are they genuinely being oppressed or are they shrieking for attention and as a weapon. I have kids (familial trolls), and this is a learned experience -- they shriek sibling oppression that is not necessarily oppression, but the tykes learned early on that screaming at the top of their lungs implies that someone is disemboweling them. In most cases it's just deft manipulation of household adults into unilateralism.

Looking at the people that oppose and support the Racial and Religious Hatred Bill, I am struck that generally the people that view the Bible as a teaching tool don't mind the bill while those that interpret the bible literally (evangelists mainly) generally oppose it. That is somewhat troublesome and a LOT like my kid that's screaming at the top of his lungs upstairs in a clearly manipulative manner.

I can also see The Secular Society's reservations on the law because satirists and comedians are the harshest observers and they are concerned that satire and irreverence would be construed as intended enticement to hatred -- particularly if you include Pinter, Vidal, Hitchens and so on (not sure about Mr. Bean though) -- and those fellows have some sloppy work among their good work. This is probably more a cultural function of education and tolerance than one of freedom of speech. I do think that they (comedians and satirists) would need to be less careless and trend more toward satire and away from performance art designed to enrage vs entertain.

The evangelists and bible literalists do not want courts to be interpreting their religions. I suppose that's understandable from their perspective, but I don't support it because I find their view of the literal Bible as irrational. I won't grab a gun to dogmatically support them so that they can smite me with the bible later on; when the choice is between bible and courts, I'll take courts, particularly in the western democracies.

Ref:

1. Lawyers Christian Fellowship law analysis.
2. Lawyers Christian Fellowship response to the advertisement in question.
3. Lawyers Christian Fellowship prayer.

Actually I want to revise this paragraph after hitting send:

Looking at the people that oppose and support the Racial and Religious Hatred Bill, I am struck that generally the people that view the Bible as a teaching tool don't mind the bill while those that interpret the bible literally (evangelists mainly) generally oppose it. That is somewhat troublesome and a LOT like my kid that's screaming at the top of his lungs upstairs in a clearly manipulative manner.

After re-reading this I felt this implied that evangelistic biblethumpers are alone in this dogmatic approach, and that was not my sole intent. I contend that dogmatic free speech advocates also fall in this category. The keyword being dogmatic to imply absolutist positions that drive one to the ramparts.

Ted wrote:

A corollary to this question is, "Are there legal trolls that look at enrolling the public at large into a dogmatic defense?" I think the answer is yes -- the trick is to understand the basic motivation of the people in question -- are they genuinely being oppressed or are they shrieking for attention and as a weapon.

But here's a fundamental disconnect: I don't believe anyone is "oppressed" by the opinions of others. By their actions, yes, but not by the expression of their opinions. They may be offended, they may be insulted, they may be infuriated, but not oppressed. And to call that oppression is to trivialize the very concept of oppression.

I can also see The Secular Society's reservations on the law because satirists and comedians are the harshest observers and they are concerned that satire and irreverence would be construed as intended enticement to hatred -- particularly if you include Pinter, Vidal, Hitchens and so on (not sure about Mr. Bean though) -- and those fellows have some sloppy work among their good work. This is probably more a cultural function of education and tolerance than one of freedom of speech. I do think that they (comedians and satirists) would need to be less careless and trend more toward satire and away from performance art designed to enrage vs entertain.

Another major disconnect: why do you think it is the government's job to tell comedians and satirists what they may say or how they may say it? Or non-comedians, for that matter. This is policing thought and expression solely on the basis of whether it offends someone else, which is a thoroughly unworkable premise.

After re-reading this I felt this implied that evangelistic biblethumpers are alone in this dogmatic approach, and that was not my sole intent. I contend that dogmatic free speech advocates also fall in this category. The keyword being dogmatic to imply absolutist positions that drive one to the ramparts.

"Dogmatic" and "absolutist" are emotional terms designed to dismiss someone's position. If they are accompanied by some logical reasons why their position is wrong, that may be acceptable. But you've made none here, you've only declared, without any substantive argument at all, that those who object to such legislation are either Bible thumpers or "dogmatic" free speech advocates. Well if there is such a thing as a dogmatic free speech advocate, I would be one, and unapologetically so. I am a dogmatic liberty advocate in general, I would say, and I apply those principles coherently and consistently without regard to whether I agree with the content of the speech. I wish we had more of such "dogmatism" and less of the zeal I see from people to use the power of government to punish those they disagree with and take offense to.

Ted needs to spend more time listening to Bill O'Reilly and other whiny paranoid dimwits -- those are the people who will make the most of such speech-control laws. Just listen to all those crybaby-bullies go on about how there's a "war on Christians," how shopkeepers "ridicule" and "marginalize" their narrow religion by saying "happy holidays" instead of "merry Christmas," how "Darwinists" and "materialists" are "attacking" their version of "Christianity"...oh, and people who talk about the pedophile-priest scandal are "inciting hatred" against the Catholic Church. And, of course, everyone who says anything bad about radical Islamist politics, or their treatment of women, or the hanging of (allegedly) gay teens in Iran, is inciting "hatred" and "Islamophobia." Does Ted really trust any country's courts to decide which criticism of which religion is allowable? The very notion of having any government agency vetting prople's opinions is flatly contrary to the very concept of free speech.

"Dogmatic" and "absolutist" are emotional terms designed to dismiss someone's position.

I didn't intend it directed at you or anyone else specifically on the blog to imply dismissing the position, but I did intend it as a generally abstract principle of following the rule without detailed deliberation. If I phrased it poorly that it seemed directed at someone in a pejorative manner I apologize.

I didn't feel that dogmatic needed a specific explanation as to why it's bad, because I've run into it repeatedly in documents that appeared to make sense without the supporting definition. For example:

The International Humanist and Ethical Union. (Fundamental #4 and #5)

4. Humanism insists that personal liberty must be combined with social responsibility. Humanism ventures to build a world on the idea of the free person responsible to society, and recognises our dependence on and responsibility for the natural world. Humanism is undogmatic, imposing no creed upon its adherents. It is thus committed to education free from indoctrination.

5. Humanism is a response to the widespread demand for an alternative to dogmatic religion. The world's major religions claim to be based on revelations fixed for all time, and many seek to impose their world-views on all of humanity. Humanism recognises that reliable knowledge of the world and ourselves arises through a continuing process. of observation, evaluation and revision.

or

The UN Declaration of Principles on Tolerance, and from there specifically:

Tolerance is the responsibility that upholds human rights, pluralism (including cultural pluralism), democracy and the rule of law. It involves the rejection of dogmatism and absolutism and affirms the standards set out in international human rights instruments.

The next paragraph does not cover dogmatic behavior, but is instructive in the argument of you have no right to be unoffended. This appears to be a point of view often in contention.

1.4 Consistent with respect for human rights, the practice of tolerance does not mean toleration of social injustice or the abandonment or weakening of one's convictions. It means that one is free to adhere to one's own convictions and accepts that others adhere to theirs. It means accepting the fact that human beings, naturally diverse in their appearance, situation, speech, behaviour and values, have the right to live in peace and to be as they are. It also means that one's views are not to be imposed on others.

Maybe the issue is defining what imposed on others means, but both of my examples discuss rights in the context of associated obligations.

Somewhere in my previous post I make mention that I view these as issues of education and tolerance which at least these two documents seem to support.

This gets more and more ridiculous. You declare my position "dogmatic" and "absolutist" and then cite some UN document that I frankly couldn't care less about that speaks against dogmatism and absolutism. I would argue that you have it precisely backwards. It is the dogmatic absolutist who seeks to use governmental power to censor those whose views he doesn't like. It is those who seek to use governmental power to punish those who offend him who are "imposing their views on others". Those who argue for the freedom of all people to express their views without being coerced - people like me - are explicitly not imposing our views on others because we are arguing against any legitimate authority for such imposition. It is absolutely unreasonable to argue, as you seem to do, that allowing others the freedom to express their views somehow "imposes" those views on us. No one is forced to listen to them or read them. Every other person is entirely free to ignore them, respond to them, be angry about them, or react in any legal manner they like. What they are not allowed to do is impose (there's that word again) their will to censor on the other person. It is absolutely mind boggling to me that you would cite the principle of not imposing one's views on others in defense of governmental coercion.

Does Ted really trust any country's courts to decide which criticism of which religion is allowable?

No, not any country's courts. What I said was:

...when the choice is between bible and courts, I'll take courts, particularly in the western democracies.

Spend more time with the people you mention? Listening to Bill O'Reilly and other whiny paranoid dimwits would make me dumber, and I'm not going to take dumb pills intentionally. At least that's my opinion to what happens from a steady diet of O'Reilly and other paranoid dimwits.

The way to combat these people is through education and tolerance of their audience and market demographic. I'm an American by choice, not by the virtue of fortuitously being squeezed out on the correct plot of land so I guess my POV is different in some of these matters. But I have faith that my decision to be an American is not because I'm smarter, but because some of those values that drove me here still exist in others despite concerted efforts to extinguish them in the approaching Armageddon of Free-Speech vs. Religious fanaticism.

gtg.

I note that people continue to suggest that violations of some law will be dependent up on the
whims of someone feeling hurt, despite the inability to produce any examples of such laws.
Instead, people seem to prefer to refer to whether it is "conceivable" that some law, somewhere,
might be abused. But what exactly is being suggested, here? After all, it is conceivable
that even at this moment, a cloaked alien fleet is crossing the moon's orbit in preparation for an
invasion of Earth. Staggeringly unlikely, I think, and therefore something that I (at
least) will spend no time at all worring about -- but nonetheless conceivable. Somewhat
less facetiously, it is conceivable that almost any law could be abused -- indeed,
I suspect that it is demonstrable that laws of almost all kinds -- fraud, theft, robbery,
rape, murder, etc. -- have been abused at one time or another. But, if the mere fact that
abuse of any law regarding speech is conceivable is sufficient to reject such a law, then
by the same argument, all laws for which abuse is conceivable ought to be rejected --
which effectively means all laws.
Further, much of the discussion about speech laws and their application as "subjective" or
some such are almost completely misguided. The application of almost all law is
subjective, or at least potentially so. There is no magic formula that one can simply plug
into and have justice fall out. There is a reason why judges and juries exist: because the
application of the law requires judgment.
With regard to the instant discussion, pretty much everyone recognizes at least
some limitations on speech. You can boot me out of your living room if you don't like
what I say, and you do not violate my freedom of speech by doing so. That I may be disallowed
from speaking on the public way outside your house 24x7 using a 1000 watt amplifier is also no
violation of my rights. More seriously, a public park or square functioning as a public forum
may be closed from midnight to 6am, and this closure violates no one's right to speak. US law
recognizes (as does almost everyone) that reasonable time, place, and manner restrictions may
be imposed without violating one's freedom of speech. On the other hand, if the state were to
say: yes, you can speak utterly freely -- on Febrary 29, in that cubicle, with the door closed
-- then one would rightly judge that this particular restriction on time, place, and manner is
unreasonable. But note that there is no magic formula that will determine that certain of
these restrictions are "reasonable" and certain others not; rather, this is a matter of
jugdment.
And indeed, as noted, this is part of the point of having judges and juries. More
specifically, it is part of the point of having claims of "offense" be judged. Plainly
a law that was violated any time anyone felt offended -- for any reason, no matter how
unreasonable or patently absurd -- would be an absurd and dangerous law. But similarly, a
"self-defense" justification in law that allowed a successful claim of "self defense" whenever
someone felt threatened -- no matter how unreasonable or patently absurd that supposed
"feeling" might be -- would be equally absurd and dangerous. But this very much does
not mean that any law allowing "self defense" as a justification for violence is
therefore absurd and dangerous. And again similarly, from the fact that absurd and dangerous
"hate"/"offensive"/"abusive" speech laws are conceivable it does not automatically
follow that any and all such laws must be so.

That said, I will note that my individual position on free speech happens to be pretty close to
an absolutist one. But being "pretty close" means that I recognize that there are some reasonable
restrictions possible on speech, and also certain instances of "speech" that can cause real harm,
and therefore are legitimately at least potentially open to state action -- all without any
violation of "free speech rights". Further, it means (and I think it follows rather
straightforwardly if one thinks about it) that there is no magic formula or rule that allows one
programmatically to determine what cases or types of cases fall on either side of the line, but
that determining such requires the exercise of judgment. Finally (and I think that this follows,
as well), these are matters about which reasonable people can disagree. You may think that
the potential for harm from some "speech" is sufficiently low that legal sanctions are unjustified.
But another person, having different experience of the results of such "speech" may disagree. And
they can disagree legitimately, reasonably, and in good faith -- and without being jack-booted
thugs intent on trampling "free speech" into the dust.

By Greg Byshenk (not verified) on 30 Aug 2006 #permalink

Greg: here's a link to a previous discussion of speech-control laws in Australia:

http://scienceblogs.com/dispatches/2006/08/australian_free_speech_probl…

Responses to this post include links to specific legal texts and rulings, as well as criticism based on citation of these texts; all of which together should answer any questions you may have. Also, this is not the only post on this blog on the subject of "hate-speech" laws, particularly in Europe.

Greg Byshenk wrote:

I note that people continue to suggest that violations of some law will be dependent up on the whims of someone feeling hurt, despite the inability to produce any examples of such laws.

Instead, people seem to prefer to refer to whether it is "conceivable" that some law, somewhere, might be abused.

Given that in every case that I am aware of, charges of this sort must be filed by someone who takes offense (with the possible exception of the David Irving case, which may have been initiated by prosecutors), the first statement is quite correct. The second does not reflect my position at all. My position is that all such laws are inherently abusive. And I have not seen a single application of them that did not attempt to make a crime out of something that absolutely should not be a crime - the expression of a belief.

Raging Bee, I've read that discussion, and a small part of the supporting documentation. From
what I have read, there is not a clear argument that the comission's conclusion was wrong.
Further, there is in that discussion almost no reference to or discussion of the
specifics of the instant case. There is only 1) a quote from the defense attorney in the original
message, and 2) a single sentence quoted from the ruling, seemingly selected specifically to
attempt to suggest that the application of the law is much broader than is actually the case.

Ed, your supposed objection is simply misguided.
Yes, it is true that any case under such laws will likely begin by someone filing a
complaint. But such a complaint is not a determination that such a law has been
violated; it is merely a complaint. Without looking up the data, I suspect that many cases of
assault, most cases of fraud, and almost all cases of rape begin with someone making a complaint.
Should we therefore conclude, based on your argument, that laws regarding assault, fraud, and rape
should be discarded?
Further, I refer you back to some of my previous comments, and questions that you have chosen
not to answer:
It seems plain that some instances of expressing one's opinion that one wishes someone dead are n
ot legitimately subject to state action. On the other hand, your "unless something more is in eviden
ce" at least suggests that you agree that some other instances are indeed legitimately subject to st
ate action. But then the question becomes: which is which? You suggest that if A pays B for the acti
on, then A has responsibility. What of the case where B is on A's payroll, but is not paid specifica
lly for the action? What of the case where B is an unpaid follower of A, sufficiently loyal that A c
an count on B doing what A wishes? What of the case where A is able to manipulate B to act in a part
icular way? What of the case where A speaks to a large group, inciting them to violence with full kn
owledge that some (perhaps as yet unknown) subset of them will act?
Or what if it is a series of speeches over a period of time goading my audience, with the entirely
reasonable expectation that at some point some of them will act? Where in this continuum does law
become "inherently abusive"?
I submit that there is no clear and unambiguous point, and that the determination of exactly
where it lies is, as I said, something about which reasonable people can disagree.

By Greg Byshenk (not verified) on 30 Aug 2006 #permalink

Greg Byshank wrote:

Yes, it is true that any case under such laws will likely begin by someone filing a complaint. But such a complaint is not a determination that such a law has been violated; it is merely a complaint. Without looking up the data, I suspect that many cases of assault, most cases of fraud, and almost all cases of rape begin with someone making a complaint. Should we therefore conclude, based on your argument, that laws regarding assault, fraud, and rape should be discarded?

Of course not. But for crying out loud, the entire nature of this "crime" is that someone has said something that offends - not threatens - someone else.

Further, I refer you back to some of my previous comments, and questions that you have chosen not to answer:

If I did not answer some objection you raised, it's not necessarily because I chose not to. This blog gets 100 to 200 comments a day. I can't possibly answer them all, especially if they're on a post that was made 2 or 3 days earlier. I simply write too many posts for that to be possible.

It seems plain that some instances of expressing one's opinion that one wishes someone dead are n ot legitimately subject to state action. On the other hand, your "unless something more is in eviden ce" at least suggests that you agree that some other instances are indeed legitimately subject to st ate action. But then the question becomes: which is which? You suggest that if A pays B for the acti on, then A has responsibility. What of the case where B is on A's payroll, but is not paid specifica lly for the action? What of the case where B is an unpaid follower of A, sufficiently loyal that A c an count on B doing what A wishes? What of the case where A is able to manipulate B to act in a part icular way? What of the case where A speaks to a large group, inciting them to violence with full kn owledge that some (perhaps as yet unknown) subset of them will act?

All of these questions deal with an entirely different issue than hate speech laws. These questions deal with someone issuing threats or encouraging people to harm someone. That is an entirely different category. In all of the situations that I have written about involving hate speech laws in other countries, not one of them - not one - had anything at all to do with either threatening someone or encouraging others to do them harm. You simply are not on point here, period.

I submit that there is no clear and unambiguous point, and that the determination of exactly where it lies is, as I said, something about which reasonable people can disagree.

This is like arguing that because the tides make it impossible to know where the ocean ends and the beach begins, it's reasonable for someone to claim that Kansas is on the beach. Remember, we are absolutely NOT talking about threats or encouraging others to do someone harm. Not one situation I have ever seen where a hate speech law is applied has dealt with that. Every single one of them has dealt with such vague things as "inciting hatred". But the fact that one can't draw clear and unambiguous lines on what constitutes "inciting hatred" is evidence for my position, not yours. It's a very good reason why the government should stay out of it and focus instead on actions which harm someone or deprive them of their rights.

I would argue that even saying "I wish someone was dead" (as opposed to "I'm going to kill you" or "someone should kill you") does not constitute something legitimately actionable. There are all sorts of people I wish were dead. Do I think the world would be better off without rapists and terrorists? You bet I do. If Fred Phelps and his family of vile idiots were to die in a plane crash tomorrow, it would put a pep in my step for days as I whistled "ding dong, the witch is dead." Is my expression of those opinions "hate speech"? Maybe. I do hate them, as I think any sane person should. Some people deserve to be hated. But my opinions do no harm them, nor do they deprive them of any rights. And that means there is no crime here.

You and I have gone round and round on this for weeks now. You may as well give up. You are never going to convince me on this, especially with the weak arguments you've been giving. There is simply no point in continuing to beat this dead horse.

Ed, of course the crime is different. But recall that your objection was that "charges of this
sort must be filed by someone who takes offense", as if there was something unique about this fact;
there is not. Further, you seemed to be making this objection in an attempt to paint "offense"
laws as based purely on someone "feeling offended", which appears to be misrepresentation of
such laws (I am unaware of any such laws, and further note that no one has presented any evidence
that such laws actually exist). The mere fact that a case may begin by someone "feeling offended"
and filing a complaint is no meaningful objection, any more than the fact that a fraud, or assault,
or rape case might begin similarly is a meaningful ofjection to laws on these matters. One may
legitimately object to "offense" or "hate" laws, but one should avoid groundless objections based
on misrepresentations of that to which one is objecting.
And you continue to (mis)represent such laws when you say "entire nature of this 'crime' is
that someone has said something that offends - not threatens - someone else". So far as I am
aware (and as noted previously, I welcome correction if I am in error), "the nature of this crime"
is that someone has said something that is reasonably judged to be offensive. As just
noted, one may hold the position that such is never ground for state sanction, but one can
do so without misrepresenting the laws to which one objects.
Your point about the number of comments is well taken -- in general. Unfortunately, it is
difficult to sustain in this particular case, because you did post a response to my comment
-- and at some length! -- but without addressing what I actually wrote. Of course I have no
reasonable expectation that you should responsd to any comment I might choose to make --
but it is not at all unreasonable to expect that, should you choose to "respond" to some comment
(and specifically to that particular comment), that your "response" actually be responsive
to that comment.
As for my examples being "an entirely different category", I submit that you are simply wrong.
In the first place, many people would consider the last example to a plain example of "hate
speech". In the second place, one could plainly extend the continuum in ways that are sufficiently
obvious that I don't need to spell them out. Consider, for example, the judgment that is required
to determine whether someone is "encouraging" or "inciting" another to act.

This is like arguing that because the tides make it impossible to know where the ocean ends
and the beach begins, it's reasonable for someone to claim that Kansas is on the beach.

No, it is not. Indeed, I have not just suggested, but explicitly stated that there are
cases that plainly are violations of freedom of speech, as well as others that plainly
are not. To say that there is grey is not to assert that there is no black and no
white -- just as pointing out examples of black and white does not disprove the existence of grey.
And this latter seems to be what you are doing. I am pointing out that grey space between black
and white, and you keep pointing to the black and the white (that I have already acknowledged) --
which is just not responsive.
Is saying "I wish someone was dead" actionable? Almost always not. Unless one is in a
position where one can expect one's "wishes" to be acted upon. But in almost all cases, such
"wishes" are without effect, and therefore there can be no harm; and therefore no grounds for any
state action.
The problem is that sometimes speech does have effect, and does cause harm -- if
perhaps not directly and immediately. If I get up every Sunday and preach that those Croats down
at the end of the road are evil, subhuman, etc., then there may be a very high probability that
someone will be harmed or that someone's rights will be violated. And here we are in that "grey
area" where some degree of judgment is required, and where reasonable people can disagree. I
suspect that there is pretty much universal agreement that directing one's followers to "kill them
all, right now!" is on one side of the line, while merely saying "I hate them" is on the other.
But the grey area arises when one begins to consider exactly how much effect one's speech must
have in order to be actionable, exactly how close to direct and immediate harm, or exactly what
the expectation or likelihood is of that harm occurring. One person (or society) may judge that
the risks of harm are insufficient, while another may judge differently.
And, to the best of my knowledge (correction is welcome), all "hate speech" laws are based upon
a judgment of harm. Which is why (to the best of my knowledge) violation of such laws is based
on "hate speech" having some actual or potential effect. Which is further why you do not find
prosectutions based upon someone's merely "hating" some group -- or even saying "I hate
some group".

I conclude by noting that of course you are free to respond -- or not. I will note,
though, that I find it interesting that you feel the need to characterize my arguments as "weak"
when you have almost completely failed actually to engage them, while arguing against things
that I have not said and positions that I have not taken -- and indeed, going so far as to attack
positions that I have explicitly disclaimed.

By Greg Byshenk (not verified) on 31 Aug 2006 #permalink

*Shrug*. I am perfectly willing to let my readers decide for themselves whose position is stronger. We've gone back and forth on this several times and our positions are not going to change. To me, there is absolutely no distinction between laws which make criminal that which makes someone feel offended, and making criminal that which is "judged to be offensive"; the latter is simply a judgement that the former is correct. There is not a single instance I have ever seen of such a "hate speech" crime being punished or even investigated that involved actual harm or deprivation of rights; rather, they are based on the false premise that being offended or insulted by someone else's views is, by itself, a harm or a deprivation of rights. I categorically reject that view, and to me it is quite black and white. Beliefs and opinions, no matter how offensive or insulting someone may find them, do not harm them or deprive them of their rights in any manner that would justify using the power of government to punish them - period. End of discussion. YOu will never convince me otherwise no matter how much you try and obfuscate the issue.

Greg Byshenk said:

So far as I am aware (and as noted previously, I welcome correction if I am in error), "the nature of this crime" is that someone has said something that is reasonably judged to be offensive.

1. As noted by Ed, this is purely conclusory.

2. What then, of your contention of a relationship to possible physical harm? Is "threatening" a necessary component of offensive?

3. What then of the various ministers charged under hate crime laws in Scandinavian countries for expressing disapproval of homosexual acts, or Islam? Are they to be judged "reasonably offensive" based on their understanding of God's law?

It seems to me you are requiring the state to make distinctions about matters of personal belief. If so, where does the state derive such authority, and how is it possible that these distinctions will be made fairly?

Kehrsam, I don't (completely) understand what you are asking.
Is it "purely conclusory" that something is judged to be X? If it is, then it certainly seems
no more so than judgments of intention or reasonableness that are regularly made in matters
of law. Which is part of my point, here. That is, if one does not misrepresent speech
law as "someone felt hurt", then there is no foundation for the suggestion that the judgment
required in their application is sui generis; yes, judgment is required -- but it is the
same judgment that is required in all areas of the application of the law.
What I have already written indicates that it is my understanding (again, I welcome correction
if I am in error) that some element of "threat" must exist. By which I do not mean that person A
must directly and overtly threaten person B, but that there must be some real "threat"/risk of
actual or potential harm as an effect of A's speech/actions.
As for "various ministers charged under hate crime laws in Scandinavian countries", I can make
no comment without something specific to respond to.
It may "seem to [you]" that this is a matter of "personal belief", but I see no evidence that
such is the case. To the best of my knowledge, just no speech laws bear at all on issues
of "personal belief". It may be my "personal belief" that Muslims are evil. To the best of my
knowlege, no "hate speech" law has anything to say about that. Further, I am free to state my
"personal belief" without hinderance -- except in a situation where one may reasonably
expect that so stating will result in harm to muslims.

By Greg Byshenk (not verified) on 03 Sep 2006 #permalink

To me, there is absolutely no distinction between laws which make criminal that
which makes someone feel offended, and making criminal that which is "judged to be offensive"; the
latter is simply a judgement that the former is correct.

Well, plainly there is at least one distinction, one which I am certain even you can
see: the former is a matter of pure personal feeling, while the latter is the judgment of a judge
or jury charged with making such judgments -- and who make such judgments as a matter of course in
the application of law in general. As such, there is no difference in principle
between such judgments being made in cases of "hate speech" and those made in relation to any
other application of the law. A conviction for fraud, for example, does not rest upon some
individual's feeling of being defrauded -- but does rest upon a judgment by judge or jury
that some activity was fraudulent and not merely a case of clever business or someone paying
insufficient attention to the details of a contract.

There is not a single instance I have ever seen of such a "hate speech" crime being p
unished or even investigated that involved actual harm or deprivation of rights; rather, they are ba
sed on the false premise that being offended or insulted by someone else's views is, by itself, a ha
rm or a deprivation of rights.

This is a false dichotomy. Interestingly, what I have previously written indicates why: you
exclude the case of likely or potential harm. And, to the best of my knowledge (as always, I
welcome factual correction), it simply is not the case that speech laws "are based on the
false premise that being offended or insulted by someone else's views is, by itself, a harm or a
deprivation of rights." Rather, they are based on the recognition that -- at least sometimes --
"hate speech" (or "offensive speech") does result in actual harm or deprivation of rights.
And further, the recognition that sometimes it is better to prevent the harm than to attempt to
clean up after it occurs. I would further note that prevention of harm is nothing out of the
ordinary in the law, and is accepted by almost everyone (with the exception of the nuttier
"everything is a tort" sort of Libertarian).
Of course, you (and others) may quite reasonably judge that the level of risk presented is
insufficient to justify any limitation on speech. This is indeed a quite reasonable and
legitimate judgment to make. But... note that, unless you have some absolutely clear principle
for making a distinction regarding the level of risk (which you have not presented, and which I
submit you do not have) this is itself a judgment call.
I might also note, as something of an aside, that to assert "YOu will never convince me
otherwise" on such matters is very often a sign of dogmatism.

By Greg Byshenk (not verified) on 03 Sep 2006 #permalink

Greg,

I think I agree with you assessments down the line, but I think this discussion highlights the difference between the way some Americans interpret the situation with how some Europeans interpret it. As an aside, let me cite an interesting observation from Dean Baker where he makes it clear that he views the NYT (and general press analysis) of European issues as -- well, slightly chauvinistic. (The comments are interesting as well).

To me at least, this extends to civil libertarian and freedom issues as well and the way we view liberties pragmatically. We tend to view liberties very strongly and damned be any connection between those views and our incarceration rates or resulting social issues that may impact on those rates.

In some ways, the secularism of Europeans tends to be helpful. I think it looks at democracy and civil liberties in an evolving state with social responsibilities rather than a main adherence to core documents. The difference in my mind is that Europeans are more ready to respond to current social drivers than to fixate and parse historic documents and navel-gaze on the nature of us as a free and enlightened people.

For example, someone brought up the Finnish incarceration model recently and that it was based on expert, academic, scientific basis and input. Can you imagine this as being the basis for the US penal system? I can't.