Hate speech
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Hate speech is a controversial term for speech intended to degrade, intimidate, or incite violence or prejudicial action against a group of people based on their race, gender, ethnicity, national origin, religion, sexual orientation, or disability. The term covers written as well as oral communication. It is also sometimes called antilocution and is the first point on Allport's scale which measures prejudice in a society.
Legal aspects
In the United States, government is broadly forbidden by the First Amendment of the Constitution from restricting speech. Jurists generally understand this to mean that the government cannot regulate the content of speech, but that it can sanction the harmful effects of speech through laws such as those against defamation or incitement to riot.Indeed, the term "hate speech" and its surrounding discussion (whether and to what extent speech should be regulated) is something restricted to American legal discourse. For example, the German constitution is subtly more restrictive, guaranteeing 'freedom of voicing one's opinion' and elsewhere restricts its misuse against the public peace. The German Criminal Code specifically forbids inciting hatred against ethnic groups, and revisionism, as in France, is prohibited under those grounds.
Since such laws often apply only to the victimization of specific individuals, some argue that hate speech must be regulated to protect members of groups. Others argue that hate speech limits the free development of political discourse and ought to be regulated, but by voluntaristic communities and not by the state. Still others claim that it is not possible to legislate a boundary between legitimate controversial speech and hate speech in such a way which is just to those with controversial political or social views.
Speech codes
Various institutions in the United States and Europe began developing codes to limit or punish hate speech in the 1990s, on the grounds that such speech amounts to discrimination. Thus, such codes prohibit words or phrases deemed to express, either deliberately or unknowingly, hatred or contempt towards a group of people, based on areas such as their ethnic, cultural, religious or sexual identity, or with reference to physical or mental health.It may also in some contexts challenge the rights of individuals based on any or all of the above criteria.
In addition to legal prohibition in many jurisdictions, prohibition of the use of hate speech has been written into the bylaws of some governmental and non-governmental institutions such as public universities, trade unions and other organizations (see below), though the use of speech codes in public universities in the United States is blatantly illegal. Its use is also frowned upon by many publishing houses, broadcasting organizations and newspaper groups.
Laws against hate speech
In many countries, deliberate use of hate speech is a criminal offence prohibited under incitement to hatred legislation.Some examples:
- Holocaust denial is outlawed in seven European countries as a form of hate speech, while the Council of Europe has passed laws against any type of revisionism, defined as denial or downgrading genocides or crimes against humanity.
- In the United Kingdom, incitement to racial hatred is an offence under the Public Order Act 1986 with a maximum sentence of up to seven years imprisonment.
- In Canada, advocating genocide or inciting hatred against any 'identifiable group' is an indictable offense under the Canadian Criminal Code with maximum terms of two to fourteen years. An 'identifiable group' is defined as 'any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.' It makes exceptions for cases of statements of truth, and subjects of public debate and religious doctrine.
- In Iceland, the hate speech law is not confined to inciting hatred, as one can see from Article 233 a. in the Icelandic Criminal Code, but includes simply expressing such hatred publicly:
(The word "assault" in this context does not refer to physical violence, only expressions of hatred.
- Victoria, Australia has enacted the Racial and Religious Tolerance Act 2001, which prohibits conduct that incites hatred against or serious contempt for, or involves revulsion or severe ridicule of another on the grounds of his race or religious beliefs.
- New Zealand prohibits hate speech under the Human Rights Act 1993. Section 61 (Racial Disharmony) makes it unlawful to publish or distribute "threatening, abusive, or insulting...matter or words likely to excite hostility against or bring into contempt any group of persons...on the ground of the colour, race, or ethnic or national or ethnic origins of that group of persons." Section 131 (Inciting Racial Disharmony) lists offences for which "racial disharmony" creates liability.
- France has made hate speech laws restricting the open expression of Anti-Semitism, and ethnic bias in public, but it implies to guidelines in news journalism (i.e. newspapers and state-owned Television) in how to report (or be told not to discuss) those matters.
- California, USA laws may declare hate speech is protected in public, but allows easy prosecution for alleged hate crimes, in verbal form as well in physical form. California law claims hate speech at the workplace does not constitute as "protected speech" and employers have the very right to terminate or discharge those who committed hate speech on workplace grounds.
Justification for laws controlling or prohibiting hate speech
Proponents of limitations on hate speech argue that repeated instances of hate speech do more than express ideas or expresses dissent; rather, hate speech often promotes and results in fear, intimidation and harassment of individuals, and may result in murder and even genocide of those it is targeted against. As such, historical revisionism is thought to be a form of propaganda which, deleting memory of real events, allows them to repeat themselves (as in the: "Never more!", following World War I... and then the Holocaust).
According to Richard Delgado, it is possible to identify hate speech on the use of certains key-words, arguing that "Words such as 'nigger' and 'spic' are badges of degradation even when used between friends: these words have no other connotation." Therefore, the act of calling someone a name should be censored if the name used belongs to a previously-identified hate speech. However, Judith Butler (1997) claims that "this very statement, whether written in his text or cited here, has another connotation; he has just used the word in a significantly different way." (Butler considers that "mentioning" a word is an effective "use" of the word in another context) Butler, Judith (1997). Excitable Speech: A Politics of the Performative. New York: Routledge. ISBN 0415915880. On this basis, Butler claims that words do not have an absolute meaning, but one that depends on the context. She thus underlines the difficulty of identifying a hate-speech. Ultimately, the state itself defines the limits of acceptable discourse, according to her. However, Butler takes the precaution to explicitly deny being against all forms of limitation of discourse, the object of her book being only to point out the different issues at stake when one address the problem of hate speech and censorship. She points out, for example, that the very act of forbidding hate-speech reconducts this hate-speech, as quoted by juridical authorities, thus leading to a proliferation of this discourse - Butler's reasoning here follows Michel Foucault's statement according to which sexuality has not only been censored during the Victorian era: it was also put in discourse through a "sexuality dispositif", thus transforming "sex" into what the West names "sexuality". In this case, censorship of sexuality has made the discourse of sexuality proliferate, with the constitution of a huge amount of scientific or pseudo-scientific litterature on "sexuality", conceived as the secret of our own personal identities.
Arguments against legal restrictions
There are a number of arguments suggested against the prohibition of hate speech:
- As a form of censorship, prohibiting hate speech would interfere with the right of free expression and free discussion of opinions, as well as with freedom of the press.
- The difficulty to define "hate speech". A legal definition would need to provide clear guidance to an individual speaker or writer, and to prosecutors, judges and juries involved in the prosecution of "hate speech". Any ambiguity or lack of clarity and specificity in such definitions would necessarily result in arbitrary and unpredictable decisions. Judith Butler thus argues that, in the US, it is jurisprudence which defines "hate speech", in not always in a "progressive" way.
- Specifically, prohibiting "hate speech" would effectively invest government prosecutors with wide discretion to persecute and silence expressions of certain opinions as "hate speech" based on political convenience while ignoring equally "hateful" expressions which have the support of vocal or violent groups.
- Hate speech restrictions would be attempts to control not only the relevant speech actions, but the thoughts of individuals, and would thus be an attempt to create a kind of thoughtcrime.
- Even if used, hate speech does not necessarily lead to actions, and that where actions are carried out, the speaker of those words cannot be held responsible for the actions of others. Critics of this position hold that position depends on denying what they argue as historical truths (i.e. that hate speech in practice has been used to incite murder and genocide). They also underline that the definition itself of "hate speech" entails a continuing line between words and acts, generally following J.L. Austin's performative concept of speech acts.
- Prohibiting hate speech would do nothing to change the ideas that give rise to the opinions behind the "offensive" terms. On this view, it is agreed that hate speech may be dangerous and should not exist, but suggested that we should not attempt to end it by legislative action, as opposed to debate and discussion. The antirevisionist Nizkor Project follows such a stance.
- In some cases it is held that prohibiting hate speech would be part of a campaign of political correctness intended to censor any expression of certain ideas, even if there is no accompanying incitement to hatred or criminal action.
- Hate speech would not necessarily lead to racial hatred. Some argue that common sense of the people make themselves be repulsed by hate speech, which should therefore be openly expressed. Justice Brandeis, who endorsed this view, famously wrote, "Sunshine is the best disinfectant." This argument may be tied to Habermas's theory of a transparent discourse, where pure rationality leads to a final consensus (i.e. he trusts rationality to crush hate speech). Critics of this position argue that hate speech, such as the Nazis' anti-Semitism, were undisturbed by logical reasoning. Or, as Slavoj Zizek puts it:
"How are we to combat effectively this Id-Evil [reference to Freud's Id and maybe Kant's radical evil] which, on account of its 'elementary' nature, remains impervious to any rational or even purely rhetorical argumentation? That is to say, racism is always grounded in a particular fantasy (of cosa nostra, of our ethnic Thing menaced by 'them', of 'them' who, by means of their excessive enjoyment, pose a threat to our 'way of life') which, by definition, resists universalization. The translation of the racist fantasy into the universal medium of symbolic intersubjectivity (the Habermasien ethics of dialogue) in no way weakens the hold of the racist fantasy upon us." Slavoj Zizek, The Metastases of Enjoyment: On Women and Causality, Verso, London, NY, 1994, p.71
Differing concepts of what is offensive
A central aspect of the hate speech debate is that concepts of what is acceptable and unacceptable differ, depending on eras in history and one's cultural and religious background. For example, personalised criticism of homosexuality and the belief that it is "immoral", based on a person's religious beliefs, are to some a valid expression of their values, to others an expression of homophobia and are therefore homophobic hate speech. Prohibition in such cases is seen by some as an interference in their rights to express their beliefs. To others, these expressions generate harmful attitudes that potentially cause discrimination.
Furthermore, words which once "embodied" negative hate speech connotations, such as 'queer' or 'faggot' against homosexuals, 'nigger' against people of African origin, have themselves been "reclaimed" by their respective communities, who attached more positive meanings to the words, so undermining their value to those who wish to use them in a negative sense. Significations differ following the context, as Judith Butler argues.
Concepts of what qualifies as hate speech broadened in the late twentieth century to include some views expressed from an ideological standpoint. For instance, some feminists refer to jokes about women or lesbians as hate speech. Just recently in Canada sexual orientation was added to the list of relevant characteristics for protection from hate-speech. Not everyone accepts that there is a comparison between classic forms of hate speech, which were incitement to hate or even physically harm, and the use of language that arguably just shows disrespect. Some discussions between politically right wing and left wing can be viewed as hateful, even though the language indulged in by both sides is not normally classified as hate speech. However, some argue that such comments demean and undermine the individuals and so should qualify as hate speech.
Attitudes towards controlling hate speech cannot be reliably correlated with the traditional political spectrum. In the United States, there is a general consensus that free speech values take precedence over limiting the harm caused by verbal insult. At the same time, many conservatives believe verbally expressed "discrimination" against religions, such as blasphemy, should be condemned, while liberals feel the same way about verbal "discrimination" against identity-related personal characteristics, such as homosexuality.