I had to submit a paper to my human rights class this week. The topic was whether or not we should tolerate hate speech. I'm posting the paper here – it's not too long – and I am interested to hear what you guys might think about the topic. A bit of context for any american readers: in Canada, we have legislation under the criminal code prohibiting hate speech against identifiable groups. I wrote in the Canadian context, but I know that the US does not have such laws – in fact, only a handful of countries do: Canada, UK, and Australia (most European countries have laws against the jewish holocaust denial). The paper was restricted to a certain length, so unfortunately I couldn't go into as much detail as I might have liked in outlining arguments and counter-arguments, but I'd love to hear opinions. Several classmates submitted papers supporting freedom of expression, so that contingent was also represented in our discussion. My paper is from a strong social justice position.
HATERS KEEP ON HATING AND THE RICH KEEP GETTING RICHER:
Why Hate Speech Should Not Be Tolerated In a Free and Democratic Society
Hate speech is defined as “speech intended to degrade, intimidate, or incite violence or prejudicial action against someone based on his/her race, ethnicity, national origin, religion, sexual orientation, or disability.”[i] There has been much controversy regarding hate speech and laws that prohibit hate speech. This controversy arises first and foremost because of its conflict with the well-guarded right to freedom of expression, which secures each person the right to express ideas and opinions without governmental interference. In this paper, I will advance the view that the “right” to freedom of expression is not final and absolute. I will further argue that expressions of hate cause real harm to groups depicted in such negative ways, and that the rights of marginalized groups not to be spoken about or otherwise depicted in demeaning and derogatory ways outweigh any claim to freedom of expression. Finally, I will argue that marginalized groups are owed societal protection from hate speech.
Identifiable Groups and the Criminal Code of Canada
In the Criminal Code of Canada (CCC), anyone who promotes genocide, incites hatred of an identifiable group in a public place, or promotes hatred is guilty of a criminal offence and will be imprisoned for two to five years.[ii] The CCC states that “In th[ese] section[s], “identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.”[iii] Note that this definition excludes gender, disability, and economic status. Also, identifiable groups are recognized by Section 15 (1) of the Canadian Charter of Rights and Freedoms (CCRF): “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”[iv] (Note that this list excludes economic status and sexual orientation.) It appears from these documents that the Canadian government recognizes that individual identity is based on group membership, and the rights of individuals can be secured through the protection of groups.
Freedom of Expression
Freedom of expression is considered a fundamental political freedom, and is zealously guarded in Western society. Section 2b of the CCRF says that every Canadian has the fundamental right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”[v] This clause is meant to protect citizens of Canada from censorship, defined here as the suppressing of opinions expressed through written word, theatrical performance, or artistic media, usually by the government.
There is a real problem in identifying what kind of act speech is. Stanley Fish says: “If [freedom of speech] is to make any sense… speech must be declared not to be a species of action, or to be a special form of action lacking the aspects of action that cause it to be the object of regulation.”[vi] On this view, speech holds no power to harm anyone. This is a very narrow conception both of what can cause harm, and of what constitutes harm. By discounting emotional and psychological pain from the realm of harm, physical pain is constructed as the only legitimate form of harm. This view is not realistic: we all know that it hurts to be the subject of a cruel comment, and verbal abuse is recognized as harm. Speech certainly is an action that can cause harm. Fish agrees: “[S]peech always seems to be crossing the line into action, where it becomes, at least potentially, consequential.”[vii] Therefore, if speech can cause harm, then speech must be considered a type of action requiring regulation.
Speech and Context
No speech act occurs outside of a particular context. Stanley Fish says: “arguments [that support freedom of speech] only get their purchase by first imagining speech as occurring in no context whatsoever, and then stripping particular speech acts of the properties conferred on them by contexts.”[viii] Allow me to break this statement down. Those who defend freedom of expression first assume that speech happens in a vacuum, free from situational context. The idea is that when a person speaks, she speaks her own ideas, and that should not be controlled. She should be free to speak her mind without worrying what others will think about it. This is erroneous on two counts: first, she does not speak from a place that is context-free. Every life has its own context, and every speaker brings that context to her speech. Second, in order for speech to have meaning, someone has to hear it. The person who listens to speech is also affected by the context of his life. The second part of Fish’s statement refers to what happens when speech enters into context. I say a sentence, and because of the context in which I say it, or the context in which someone hears it, meaning attaches to the sentence. Proponents of freedom of expression would try to strip away that meaning. This argument is somewhat confused: it argues that context is unwittingly conferred onto an act of speech, rather than considering that context motivates that act.
Freedom from Harm
Freedom is a delicate balance. A society can only support an individual’s rights so long as that individual does not infringe on the rights of another. In regards to hate speech, it is hard to understand why one person’s (or group’s) right to freedom of expression should trump the right of a group not to have hateful things said about them. Why should the rights of the haters be held above those of the victims of hate speech? Societies that tolerate hate speech institutionalize that form of violence. When an individual is the subject of “hate” speech, he or she has the right to press criminal charges against the speaker(s) on the basis of slander/defamation of character. When a group is the subject of hate speech, it seems defenders of Section 2b of the CCRF would tell members of that group to just get over the slanderous comments, because the speaker(s) right to free expression is paramount.
Stephen L. Newman, arguing for freedom of expression, says that “[h]ate speech, by its very nature, is threatening, and all victims of hate speech have reason to fear the potential for violence that it represents.”[ix] He argues that special consideration for disadvantaged social groups is untenable, and that those who defend legislation prohibiting hate speech “serve only to explain the heightened sensitivity of historically oppressed groups to continuing expressions of prejudice.”[x] I find this statement to be highly contentious and dismissive of the real concerns of marginalized groups. It is true that hate speech can target both disadvantaged and privileged groups in society, and individuals deserve protection from these threats. However, words of hatred spoken against a person who is socially privileged does not serve to support systems of oppression that already exist against them. Socially privileged groups are not in the same socio-political/economic position as disadvantaged groups: the relation of power that constitutes oppression serves to advance socially privileged groups while simultaneously squashing socially disadvantaged groups. Those who are harmed by such oppression deserve protection and support as society works to undo and disentangle the interlocking systems that have created situations in which disadvantaged people are trapped between the proverbial rock and a hard place. Western society has been built on the backs of disadvantaged people, and they are still paying the price today because of pervasive beliefs involved in racism, sexism, heterosexism, etc. Hate speech, when aimed at the socially privileged, is as harmful as a dent in a suit of armour. For a disadvantaged group, it is a kick in the teeth while they’re already down.
Why does a person commit an act of hate speech? The bottom line is, that person has come into contact with information that has led them to believe something negative about a group or groups of people, and for whatever reason, they feel compelled to express that view. The underlying belief is supported by systems of oppression in society that serve to exploit and demoralize particular groups of people, and serve to privilege other groups. Oppression is about relations of power between groups, and hate speech has a twofold intent: to demoralize and degrade a person or people based on their membership in an identifiable social group, and to impart more power and privilege to the speaker and his/her group.
In a perfect world, if a person or group of people wished to express their prejudices regarding another group (or groups) of people to society at large, that expression would not matter. The only harms that would come about from such an expression would be the public humiliation, chastisement, and exclusion of the person or group expressing those views by the rest of society. However, ours is not a perfect world. Ours is a world rife with interlocking systems of oppression that serve to harm groups of people based on criteria such as gender, sexuality, disability status, economic status, race, ethnicity, and religion. These systems of oppression are only fuelled by such expressions of intolerance and non-acceptance characterized by hate speech. Society owes protection to these disadvantaged groups in the form of legislation prohibiting hate speech.
[i] Wikipedia, “Hate Speech”. Accessed February 2, 2006 at http://en.wikipedia.org/wiki/Hate_speech>
[ii] Criminal Code of Canada, Sections 318 and 319. Accessed February 3, 2006 at http://laws.justice.gc.ca/en/C-46/165505.html#rid-165543>
[iv] Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act 1982. Section 15(1). Department of Justice web site, accessed February 2, 2006 at http://lois.justice.gc.ca/en/charter/>
[v] Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act 1982. Section 2b. Department of Justice web site, accessed February 2, 2006 at http://lois.justice.gc.ca/en/charter/>
[vi] Fish, Stanley. “There’s No Such Thing As Free Speech and It’s a Good Thing Too”, pp 241 in Political Philosophy: Classic & Contemporary Readings (Pojman, L., ed) © 2002: McGraw-Hill
[vii] Ibid, pp 241
[viii] Ibid, pp 243
[ix] Newman, Stephen L. “What Not to Do About Hate Speech: An Argument Against Censorship”, pp 209 in Canadian Political Philosophy
[x] Ibid, pp 209 (Beiner, R. and Norman, W., ed). © 2001: Oxford University Press
*please note: this paper may not be used in full or in part in any form without the express permission of the author*