The Politics of Hate Speech Laws

Alexander Brown, Adriana Sinclair

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317019053
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines the complex relationship between politics and hate speech laws, domestic and international. How do political contexts shape understandings of what hate speech is and how to deal with it? Why do particular states enact hate speech laws and then apply, extend or reform them in the ways they do? What part does hate speech play in international affairs? Why do some but not all states negotiate, agree and ratify international hate speech frameworks or instruments? What are some of the best and worst political arguments for and against hate speech laws? Do political figures have special moral duties to refrain from hate speech? Should the use of hate speech by political figures be protected by parliamentary privilege? Should this sort of hyperpolitical hate speech be subject to the laws of the land, civil and criminal? Or should it instead be handled by parliamentary codes of conduct and procedures or even by political parties themselves? What should the codes of conduct look like?

Brown and Sinclair answer these important and overlooked questions on the politics of hate speech laws, providing a substantial body of new evidence, insights, arguments, theories and practical recommendations. The primary focus is on the UK and the US but several other country contexts are also explored and compared in detail, including: Nigeria, Kenya, South Africa, India, China, Japan, Turkey, Germany, Hungary, and Italy. Methodologically, the two authors draw on approaches and concepts from a range of academic disciplines, including: law and legal theory, political theory, applied ethics, political science and sociology, international relations theory and international law.

1 Introduction

1.1 Introduction

Hate speech is a linguistic, social, cultural, technological and legal issue. But at the same time it is also a highly political and politicised issue. In politics one side might accuse the other of cynically exploiting hate speech for political gain, whilst the other side may respond by accusing the first of misusing hate speech laws to silence political viewpoints it simply does not like. In the current climate it can be hard to see any way out of the multilevel disputes that surround hate speech. What is it? What sort of problem, if any, does it represent? What, if anything, should be done about it?

As an example of this politicisation, one might be forgiven for assuming that all sides would agree that it is morally unacceptable to say things that might be offensive to racial or religious groups, they simply disagree on what to do about it. But that is simply not the case. In 2017 a Cato Institute/YouGov public opinion survey in the US found that among Democrats only 14 per cent thought that it is morally acceptable to say things that might be offensive to racial or religious groups, whereas among Republicans 24 per cent thought it was morally acceptable (Cato Institute/YouGov 2017, 12). Perhaps what motivates these particular Republicans is a wider concern that it has become all too easy to regard language as offensive. This view is perhaps encapsulated in the words of Republican Senator Steve King: ‘White nationalist, white supremacist, Western civilization – how did that language become offensive?’ (Stolberg 2018).

Of course, many people would argue that hate speech is not the same thing as merely offensive language. Hate speech is more extreme, it can be threatening in nature, for example. But once again not everyone agrees there is something morally unacceptable about using threatening language towards racial or religious groups. To give a UK example, the English Defence League (EDL) is a far-right organisation known for its anti-Islam and Islamophobic ideology and for its street demonstrations. In 2011, a member of the EDL, Guramit Singh, gave an impassioned speech to EDL supporters on the streets of Peterborough which ended with the following thinly veiled threat (in the context of the violence, rioting and street disturbances that have often accompanied EDL protests). ‘I’ve got one thing to say to the members of the Islamic community who are Islamists […] English Defence League 2011 we’re coming to a street near you, we ain’t even fucking started yet!’¹ Singh was later arrested on suspicion of committing a religiously aggravated public order offence.² EDL’s leader, Tommy Robinson, is reported to have said this about the arrest. ‘The EDL are fully behind him and we don’t think there was anything wrong with his speech’ (Reville 2010). At the time of writing Tommy Robinson is an advisor to the leader of the UK Independence Party (UKIP), a mainstream party in UK politics.

Of course, it might be tempting at this point simply to dismiss these sorts of views as fringe or extreme. But that assessment would be too quick. There are many mainstream liberal thinkers who argue that whether or not one finds it morally acceptable to say things that might be offensive to racial or religious groups, making accusations of ‘hate speech’ against people is itself morally problematic. Just as some critics of hate speakers accuse them of spite, vindictiveness and hatred toward racial or religious groups, so critics of critics of hate speakers accuse them of spite, vindictiveness and hatred toward so-called hate speakers. The American liberal philosopher Ronald Dworkin once referred to proponents of hate speech laws as ‘fanatical moralists with their own brand of hate’ (Dworkin 2009, ix).

The politicisation of the problem of hate speech is perhaps at its sharpest when politicians and political parties trade accusations of hate speech. To take one example, in the US midterm elections in November 2018 Rashida Tlaib and Ilhan Omar became the first two female Muslim congresswomen. They are both Democrats. Not long after being in office Omar was accused by some people, including Republicans and Democrats, of anti-Semitism. Omar had made a series of tweets (some old, some new, and some subsequently deleted) in which she claimed that ‘Israel has hypnotized the world’ and alleging that support for Israel among many congresspersons was due to the money (‘Benjamins’) donated by wealthy Jewish individuals and organisations (Crow 2019). Omar’s accusers argued that her tweets perpetuated familiar anti-Semitic conspiracy theories. Yet in response Omar protested that accusations of anti-Semitism against her were themselves fuelled by or constituted Islamophobic negative stereotypes, aimed at silencing her.

What I’m fearful of is that, because Rashida and I are Muslim, that a lot of our Jewish colleagues, a lot of our constituents, a lot of our allies, go to thinking that everything we say about Israel to be an anti-Semitic because we are Muslim [sic]. And so to me it is something that becomes designed to end the debate, because you get in this space of, yes, right like I know what intolerance looks like and I’m sensitive when someone says, ‘The words you used Ilhan are resemblance of intolerance’ [sic]. And I am cautious of that and I feel pained by that. But it’s almost as if, every single time we say something regardless of what it is we say that is supposed to be about foreign policy or engagement, our advocacy about ending oppression, or the freeing of every human life and wanting dignity, we get to be labelled something and that ends the discussion, because we end up defending that and nobody ever gets to have the broader debate of what is happening with Palestine. I want to talk about, I want to talk about the political influence in this country that says it is okay for people to push for allegiance to a foreign country.³

Omar’s oblique reference to divided allegiance, however, attracted yet further accusations of anti-Semitism, based on the idea that she was eluding to longstanding tropes about Jewish Americans having conflicted allegiances. Reflecting the growing controversy about Omar but also a much wider backlash against hatred in American politics, in March 2019 the House of Representatives took the unusual step of passing (by a margin of 407 to 23 votes, with Omar among the 407 Representatives voting in favour) a wide-ranging Resolution condemning various kinds of racist, anti-Semitic and Islamophobic acts and statements ‘as hateful expressions of intolerance that are contradictory to the values that define the people of the United States’.⁴

At the same time, however, not all of Omar’s critics – and not all critics of the Democrats’ handling of the controversy – were perceived as having the necessary moral credibility or ethical standing to call out the problem of hatred in American politics. For example, during the controversy President Trump took to Twitter to declare the following.

It is shameful that House Democrats won’t take a stronger stand against Anti-Semitism in their conference. Anti-Semitism has fueled atrocities throughout history and it’s inconceivable they will not act to condemn it!⁵

Yet many critics of Trump decried this and other similar interventions as an act (tweet) of breathtaking hypocrisy, from a president who has consistently exploited hateful rhetoric against various minority groups and who has allegedly defended white supremacists (Haaretz 2019).

Interestingly, one of the strategies used by Trump to deflect criticism away from his own hate speech has been to denounce ‘the Mainstream Media’ and ‘the Fake News’ as ‘anti-Trump haters’.⁶ His aim is to suck the force from criticisms that he is a hate speaker by tarring with the same brush some of the people who make that criticism, meanwhile hoping that the audience will accept the false equivalence between genuine hate speakers and ‘anti-Trump haters’. It is in this vein that in July 2019 Trump Tweeted – in response to accusations made against him by Omar and many other political figures of racism and xenophobia for having earlier Tweeted that members of the so-called squad should ‘go back’ to where they came from – that ‘[t]he Democrat Congresswomen’, including Omar, ‘have been spewing some of the most vile, hateful, and disgusting things ever said by a politician in the House or Senate’. For its part, the House of Representatives responded to Trump’s ‘go back’ Tweet by passing a further Resolution (by a narrow margin of 240 to 187 votes, and without the support of the Republican Party) that ‘condemns President Donald Trump’s racist comments’.

In addition to heated political disputes about what counts as hate speech, it can also seem as though there is no escaping an extreme polarisation of views on what to do about the problem. On the one side, there are many liberals, progressives and people on the political left who think that hate speech is a genuine problem for individuals and communities and that hate speech laws are necessary – whether that be in the form of criminal laws, civil laws, anti-discrimination laws or human rights laws. On the other side, there are some liberals as well as social conservatives and people on the political right who believe that hate speech is simply a concocted idea, a strain of political correctness, and that hate speech laws are simply political weapons being used to silence critics in entirely illegitimate ways. Consequently, it can strike people as naïve to imagine there could be any escape from the binary choice between thinking that legal measures can, and should, be among the battery of measures that authorities use against hate speech and thinking that whatever authorities do to combat hate speech they should never make it unlawful, not least because this puts authorities on a slippery slope to massive censorship (Strossen 1990, 2018; Chemerinsky 2003; Hare 2006; Heinze 2009; Baker 2009) (see Chapter 5).

Furthermore, even if everyone accepted the optimistic theory that xenophobia, racism, anti-Semitism, Islamophobia, homophobia, misogyny and so on are slowly decreasing over time (Pinker 2018, ch. 15), people disagree about the role of hate speech and hate speech laws in this. Some people believe that hate speech is both a driver of, and the canary in the coal mine for, prejudice, bigotry and hatred in society and that if hatred is slowly decreasing, then it must be partly thanks to the emergence of hate speech laws (see Delgado 1982; Delgado and Yun 1994b; Delgado and Stefancic 1996). Other people insist, however, that hate speech is itself a kind of necessary safety-valve or pressure-release mechanism, meaning that hate-motivated crime and violence actually decline where people are free to engage in hate speech without threat of legal sanction (Emerson 1963; Heins 1983). Indeed, some people believe that the very existence of hate speech laws actually makes the problems of intolerance, division and hatred worse (see D’Souza 1991; Harel 1992; Heinze 2006, 2016, ch. 5; Tatchell 2007; Baker 2009; Volokh 2010; Neller 2018) (see Chapter 6 [6.3.3]).

These issues are compounded by the globalisation of hate speech and its effects. When states use legal measures (i.e. domestic hate speech laws) along with various extra-legal measures to combat hate speech, they are reliant on other states to do likewise. If, however, other states fail to do their bit and the problems of intolerance, division and hatred get out of control and escalate into widespread discrimination and violence in those other states, then neighbouring states may end up becoming involved in humanitarian aid, refugee flows, peace keeping responsibilities, and dealing with downturns in economic markets and even conflict itself (Kübler 1998).

Another aspect of the globalisation of hate speech is the rise of Internet-based communication and social networking. Online hate speech in particular is no respecter of state borders. The worry is that if powerful states like America remain implacably opposed to hate speech regulations, or if powerful multinational Internet companies like Twitter, Facebook and YouTube simply have weak enforcement of their own community standards on hate speech, then it no longer matters what the rest of the world does because hate speech will travel between countries through the Internet.

However, this book argues that there are eight reasons to be optimistic that genuine progress can be made, and is being made, on the issue of hate speech and hate speech laws: signs that political communities and the international community as a whole are already moving beyond seemingly entrenched positions and intractable disputes on this issue and are capable of moving even further.

First, governmental authorities, civil society organisations (CSOs), non-governmental organisations (NGOs), intergovernmental organisations, academics and other stakeholders are beginning to commit themselves to more tirelessly and rigorously amassing evidence of the extent of hate speech, its many harmful effects, the different ways of combating hate speech – including through counter-speech, education and different kinds of hate speech laws – and the comparative efficacy of these different sorts of measures. Perhaps only with these efforts will sceptics come to acknowledge that hate speech laws might have a legitimate place within larger bodies of measures designed to combat hate speech. We discuss some of these developments later in this chapter and in the rest of the book.

Second, there is increasing awareness that hate speech does not always or necessarily have to do with feelings, sentiments or attitudes of spite, vindictiveness and intense dislike or hatred toward its targets (Brown 2017a). Building on important insights in the field of hate crime studies (see Jacobs and Potter 1998; Iganski et al. 2011; Citron 2014), there is a growing understanding that hate speech can also come from, and aim at, contempt, fear, anxiety, mistrust, disenfranchisement, alienation, social exclusion or even loneliness (Brown 2017a). Greater understanding of, and even a degree of empathy for, what drives hate speakers opens up new possibilities. Whilst this understanding might not alter some people’s view that hate speech is morally problematic and that hate speech laws are necessary, it could help to reduce the tendency or perceived tendency of critics of hate speakers to themselves adopt a posture of spite, vindictiveness and hatred toward hate speakers. Hate propaganda expresses ideas based on the fundamental moral inferiority or lower moral worth or dignity of those being targeted as though it matters less how well or badly their life goes. As such it is unhelpful if critics of people who use hate propaganda express this criticism in a language which suggests or could be read as suggesting that they in turn believe that hate speakers are fundamentally morally inferior or have lower moral worth or dignity. One can believe that what another person is doing or saying is morally bad and because of that hold them in lesser social esteem or regard measured on ordinary scales of good or bad moral agency, without at the same time thinking that the person is fundamentally morally inferior or has lower moral worth or dignity. Once again, we believe that in order to make progress in these directions more comparative work needs to be done on how the problem of hate speech is viewed in different countries. Increasing this understanding may help raise consciousness about how best to talk about the problem of hate speech without lapsing into the same bad habits. We undertake some of this comparative analysis in Chapter 2.

Third, there is an emerging international norm on hate speech which requires states to use legal prohibition as one measure to combat hate speech alongside a range of other measures including education and counter-speech. The norm has been formalised in a growing body of international hate speech instruments. In Chapter 4 we examine more closely this body of international hard and soft law and explain, using several approaches in international relations theory, why some states do and other states do not agree, sign, ratify and comply with these instruments. Now, it is true that states are sometimes prepared to engage with international treaties on hate speech because of a perception that the problem of hate speech is found in other countries, not their own. But this perception is increasingly being supplanted in many countries with an awareness that hate speech is occurring in their own backyards, offline as well as online. This is due in no small measure to the work of intergovernmental organisations and bodies who monitor compliance and/or adjudicate on individual applications and complaints under international hate speech instruments. Indeed, even states that have historically been resistant to enacting hate speech laws at home have in recent years responded to domestic pressure as well as to external diplomatic criticism and to legal obligations under international hate speech instruments by introducing such laws – Japan being a case we shall discuss later in this chapter and in Chapters 2 [2.8] and 4.

Fourth, it is increasingly recognised that calling on states to make hate speech unlawful does not mean accepting as legitimate every kind of hate speech law and every use of hate speech laws. It is perfectly compatible with affirming the appropriateness of hate speech laws in general to also insist that states should not misuse hate speech laws to suppress political opponents or dissent. Ju...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• 1 Introduction
• Part I The political context of hate speech laws
• Part II Political arguments against hate speech laws
• Part III Hyperpolitical hate speech and what to do about it
• Bibliography
• Index