Abstract
From the standpoint of international human rights law, this is in one sense a simple question. Several human rights treaties allow, or even require, limitations on expression that could broadly be labelled ‘hate speech’. But beyond this, the picture quickly becomes murkier, especially considering the lack of agreement as to what ‘hate speech’ actually means or what types of expression it includes.
Limitations – even when justifiable – are a risky tool
The International Covenant on Civil and Political Rights (ICCPR) protects the right to freedom of expression, but also prohibits both propaganda for war and ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.
Direct and public incitement to genocide is criminalised under both the 1948 Genocide Convention and the Rome Statute of the ICC. But less extreme types of expression may also affect human rights. For example, Amnesty International’s recent report, Choice and Prejudice, documents how stereotypical or hostile rhetoric against Muslims in Europe may fuel discrimination.
Joshua Franco
Credit: Mark Boardman/www.mark-boardman.com
But does this mean that all hateful expression should be banned, or even criminalised? Does human rights law compel what Miklós Haraszti describes as the ‘pursuit of a benign utopia of an offense-free society [that] takes its toll on freedom of expression?’ International human rights law says no.
Freedom of expression encompasses even that which is offensive or shocking, and human rights law imposes a stringent test for attempts to limit this right. Limitations – even when justifiable – are a risky tool. They risk, for example, creating free speech ‘martyrs’ of the speakers and giving the hateful message a larger platform than it might otherwise enjoy.
Flawed limitations are dangerous not only to expression but to all human rights. For example, when laws are overbroad or unclear and people cannot discern the boundary between protected and prohibited expression, they will often self-censor even protected expression for fear of sanction. People afraid to speak out are less able to demand their rights or hold governments to account.
Examples are plentiful. In Rwanda, broad and ill-defined laws on ‘genocide ideology’ and ‘divisionism’ keep people from criticising the authorities. In April 2013, the Turkish pianist Fazil Say was handed a 10-month suspended sentence for ‘insulting religious values’ in a tweet. In Russia, broad legal concepts of treason and extremism have facilitated a widespread crackdown on civil society that has stifled dissent.
So what is to be done? Limitations on expression are only one means available to government to address discrimination or incitement, and are rarely the least restrictive or most effective. States must also ensure that robust anti-discrimination protections are established in law and enforced. Many states that claim restrictions on expression are necessary to promote tolerance also refuse to keep disaggregated statistics that would help illuminate the extent of discrimination on grounds of race or other characteristics. Counter-speech is also essential. Politicians should lead by condemning incidents of discriminatory expression, while ensuring that members of targeted minority communities can make their own voices heard in the media and elsewhere to counter the ignorance on which so much prejudice is based.
Hateful rhetoric is offensive, but only the most extreme forms of incitement can justify prohibition. Before resorting to prohibition, we should ask whether it is really justifiable and effective, or rather serves only to mask the problem of intolerance and discrimination that it reflects and which we must urgently and meaningfully address.
Though it can be defined in a variety of ways, there is general consensus that hate speech is speech that intends to harm people, either by inciting violence against its targets, or by being so deeply offensive that its very expression causes psychological harm. Part of the problem is that these two scenarios are often conflated.
For some, hate speech is simply a matter of vocabulary, the belief that some words are so taboo that they should never be uttered even with irony. But things aren’t really that simple. Meanings are never entirely independent of contexts, and interpreting speech acts is not always straightforward.
Let’s take the easiest sort of case first. Hate speech that is intended and likely to incite actual violence is beyond the pale. Some radicals argue that even that should not be legislated against, that it is just part of the free market of ideas, albeit a nasty part. They are wrong. I’m with John Stuart Mill in believing that free expression has immense consequential value, and that censorship of incitement to violence is justifiable. Expression rightly has limits and we should distinguish between liberty, which is valuable, and mere licence that allows anything at whatever cost.
Nigel Warburton
Credit: Mark Boardman/www.mark-boardman.com
But even in cases of suspected incitement, deciding which speech acts fall into this category can be difficult. It’s easy to see that some of the disgusting utterances urging specific acts of violence on Rwandan radio – whether expressed in metaphors of cutting down tall trees, or in unequivocal language – directly incited acts of butchery, and that was their speakers’ intention. But what about the general culture of stereotyping that was the precursor to this? The gradual shift from offensive caricature to incitement to violence might seem to justify the nuclear option of outlawing all offensive caricature. But the cost of that would be far too high. Instead we need to find the point at which censorship is justifiable, and police the borders with great vigilance – no easy matter.
Tough too is the decision about whether deliberately inflicted psychological harm carried out through speech and directed at a specific group should be illegal. Just because you might like to live in a society where such acts of verbal attack directed at a group don’t occur, it doesn’t mean that the law should be used to censor them when they do. Mill didn’t have a sophisticated notion of psychological harm; we can’t so easily ignore the long term and deeply debilitating effects of some kinds of verbal cruelty.
Broadly, there are two approaches. In the UK, Canada, Denmark, New Zealand and many other countries, the stance is to prosecute some expressions that vilify specific groups, whether or not these expressions are incitements to specific acts of violence. In contrast, First Amendment protections of free expression in the United States allow a greater range of hatred to be expressed without legal intervention.
The worry about the anti-hate-speech model is that it risks banning mere offence, comedy, irony, legitimate criticism of beliefs, cultures and practices. At its most extreme, for example, it could criminalise atheists who mock the absurdities of specific religious practices and beliefs. Mill argued for the great value of dissent, even dissent that you find deeply offensive: it is through the collision of viewpoints, often forcibly and perhaps rudely expressed, that we have the best chance of arriving at truth or at least clarity about what we believe. In his words, ‘both teachers and learners go to sleep at their post as soon as there is no enemy in the field’. He was surely right about that. Eliminate those you dislike and you will probably end up holding your views as dead dogma.
There is also the worry that outlawing some sorts of expression treats members of vulnerable groups in a patronising manner, as incapable of responding to offensive speech with counter-speech and needing to resort to legal protection. A further consequential worry is that where dissent is outlawed it is likely to go underground and fester. Far better to meet the deeply offensive with rebuttal and ridicule in public than to encourage secret exchanges of toxic views.
If someone labels an expression ‘hate speech’, we need to investigate what sort of hate speech is claimed and what the consequences of consistent outlawing of this type of speech might be. It would be nice if issues about the limits of free expression were straightforward, but anyone who believes that they are is naïve.