The First Amendment Should Never Protect Hatred
By Tanya Cohen
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…illegal in Australia, and the Australian Human Rights Commission goes to great lengths to prosecute anyone who makes comments that offend minorities or oppose human rights. Australia’s human rights courts have ruled many times that it doesn’t matter whether the comments are “true” or “balanced” or not; if the comments may offend minorities or incite hatred, then they are against the law in Australia, as they should be. Australia has also proposed legislation (the Human Rights and Anti-Discrimination Bill) which declares people automatically guilty of offending, insulting, humiliating, or intimidating minorities unless they can prove their innocence beyond any reasonable doubt. This legislation has been wholeheartedly endorsed by the Australian Human Rights Commission and by literally every single human rights group and progressive think tank in Australia, from Amnesty International Australia to Per Capita. The Human Rights and Anti-Discrimination Bill was proposed by Australia’s centrists. The Australian left complained that the law didn’t go nearly far enough. But, in the US, not even so-called “progressives” tend to support legal sanctions on hate speech. Do Americans have any idea how ridiculous it seems to people in civilized countries when Americans who call themselves “progressive” actually OPPOSE laws against un-progressive speech? In Australia, you absolutely cannot call yourself a progressive unless you actively work to criminalize all forms of un-progressive speech. Even the most far-right ultra-libertarians in Australia still strongly agree that racial vilification and incitement to hatred (including Holocaust denial) should be against the law.
America’s northern neighbor Canada has a much deeper respect for fundamental human rights than America does. In Canada, hate speech and advocating genocide are very serious criminal offenses that can land you up to fourteen years in prison. The Supreme Court of Canada has also found that truthful statements can be classified as illegal hate speech, and that not all truthful statements must be free from restriction. Each Canadian state has its own Human Rights Tribunal to investigate and prosecute people for hate speech and other human rights violations. Nobody in Canada believes that laws against hate speech and advocating genocide infringe on freedom of speech, and, like Americans, Canadians are guaranteed the right to freedom of expression through the Canadian Charter of Rights and Freedoms.
Americans have a deep and fundamental misunderstanding of what freedom of speech is. Freedom of speech does NOT mean that you have the freedom to say anything. As any human rights lawyer could explain, freedom of speech is all about striking the right balance between rights. Rights have to be restricted or removed when they interfere with other rights. You don’t have the right to spout racist hate speech because that interferes with other people’s right to be free from racial discrimination. Freedom of speech exists so that people can criticize their government, provided that they do so in a civil, polite, and respectful manner. Freedom of speech does NOT give you the right to offend, to insult, to disrespect, to oppose human rights, to argue against the common good, to voice approval of totalitarian ideologies, to perpetuate toxic systems of privilege and oppression, to promote ideas which have no place in a modern democratic society, to be provocative or incendiary, or to express opinions which are unacceptable to the majority of people.
Most champions of hate speech are straight, white, Christian males who have never had to experience the devastating consequences of hate speech. These highly privileged members of society will never understand the harm that hate speech causes to vulnerable minorities. Hate speech is not “freedom” to the Muslims who face widespread attacks and abuse as a result of hate speech from outlets like Fox News and Bill Maher. Hate speech is not “freedom” to the women at abortion clinics who are shouted at by right-wing protesters just for attempting to exercise their human right to choose. Hate speech is not “freedom” to the thousands of people who are killed by guns every single year in America thanks to the gun lobby’s propaganda turning public opinion against sensible gun bans. Hate speech is certainly not “freedom” to the LGBT people who are viciously attacked and even murdered as a result of hate speech from the Christian right.
Hateful, hurtful, or offensive speech can never be “free” when one considers the extremely high cost that it has on its victims and on society as a whole. When bigots are allowed the unfettered right to incite hatred and violence against vulnerable minorities, the consequences can often be fatal for the members of those vulnerable minority groups. For example, human rights and LGBT rights activist Peter Tatchell notes that human rights and LGBT rights groups in Jamaica have confirmed a rise in anti-gay attacks after the release of homophobic reggae songs that incite hatred and violence against LGBT people. Likewise, attacks on Muslims always increase when powerful figures like Bill Maher make bigoted statements that incite racial hatred and violence against Muslims (in fact, racist hate speech from Bill Maher recently incited a man in Chapel Hill to shoot three innocent Muslims – in a civilized country, Bill Maher would be held legally accountable for the shooting). There is also a strong connection between rape culture – for example, songs like “Blurred Lines,” which directly incite rape – and actual acts of rape and sexual violence. Hate speech does have very serious consequences in the real world, but straight, white, Christian men could never be able to understand just how severe those consequences can be. Privileged members of society will never know what it’s like to be a victim of hate speech. As a descendant of Holocaust survivors, I know first-hand the extreme danger that flows directly from hate speech. Those championing hate speech, however, clearly do not understand just how dangerous hate speech is. There is a hierarchy of power in society, with straight, white, Christian men firmly at the top. Freedom of speech is counter-productive if the people who benefit from it are the people who already hold far too much power and privilege in our society.
No country prosecutes hate speech strictly enough to truly protect human rights. For example, when Denmark failed to ban the infamous Muhammed cartoons, human rights groups around the world voiced their outrage, with Amnesty International releasing a statement saying that the cartoons should be prosecuted since they qualify as religious hatred under international human rights law (Article 20 of the International Covenant on Civil and Political Rights). Germany, in particular, has repeated failed to protect human rights. Most recently, Germany has been heavily criticized by the international human rights community for its failure to ban the hate group PEGIDA. When Germany failed to ban the fascist party NPD, human rights groups around the world voiced their outrage, and Russia even focused on it in a report about Western Europe’s human rights failures. But these countries at least HAVE hate speech laws and they often do enforce those laws. In the US, hate speech laws do not even exist. This is absolutely unfathomable in a country that claims to be a free democracy.
America’s failure to enact human rights legislation also makes it difficult for other countries to adequately protect human rights, especially online. Stopping the spread of online hate speech has been made a top priority of the UN and the international human rights movement, but it’s very difficult to protect human rights online when the US controls most of the Internet and steadfastly refuses to pass any kind of human rights legislation to stop hate speech. A French Jewish leader recently told the US that it needs to join the civilized world by cracking down on online hatred since hate speech on the Internet puts vulnerable minorities in very real danger (both mental and physical), but, unfortunately, we all know that his urgent pleas to the US will go completely ignored, and online hate speech from the US will continue to place French Jews and other vulnerable minorities around the world in serious danger. Until the US decides to finally cooperate with the international community, the UN and human rights groups will never be able to remove hate speech from the Internet and elsewhere. In addition to passing strong legislation against hate speech, the US needs to report to the UN and it needs to allow the UN to prosecute Americans under the UN courts. When other countries fail to press hate speech charges against their citizens, the UN often steps in and presses charges under the UN courts. In America, however, that would currently be impossible. America also needs to hand over control of the Internet to the United Nations, which will use the international human rights framework to protect human rights online, as it has repeatedly encouraged all nations to do.
America has always been very uncivilized, unenlightened, unfree, and backwards when compared to Europe, Canada, Australia, and New Zealand. The rest of the world continues to forge ahead in human rights – Belgium recently passed human rights legislation outlawing all forms of sexist speech, and numerous countries are passing human rights laws requiring anyone accused of hate speech to prove their innocence or be declared automatically guilty – while the US still lacks even the most basic legal framework for protecting fundamental human rights. But it doesn’t have to remain that way. Things CAN change. While the United States needs to strongly support freedom of speech and firmly oppose all forms of censorship, it also needs to sincerely protect vulnerable minorities from all manifestations of hate speech. There is absolutely NO excuse whatsoever for an advanced democracy in the year 2015 to not have any kind of laws against hate speech. America will never be up to international human rights standards until it makes protecting the basic human dignity of all of its citizens a top priority. Freedom of speech should never be a shelter for hatred, for malice, for abuse, for insults, for offense, for vilification, or for the dissemination of ideas that oppose human rights. Freedom of speech has to be balanced against the feelings of others. What America needs are human rights-based laws that strike the proper balance between freedom of speech and freedom from hatred. The current stance taken by America – that freedom of speech means the freedom to engage in all manner of hatred and discrimination – is hideously outdated and totally contrary to international human rights law.
The human right to freedom of speech has always been subject to the human right to freedom from hatred and discrimination. The right to freedom of speech and the right to be protected from hate speech are both firmly enshrined in international human rights law, and you cannot have one without having the other. Under international human rights standards, all countries are required to ensure the utmost freedom of speech while also vigorously prosecuting all manifestations of hate speech. When freedom of speech interferes with someone else’s freedom to not be offended, insulted, disrespected, vilified, or subjected to hatred, it needs to be restricted. Freedom of speech is something that always has to be balanced against the basic human rights of others. Your freedom ends where the freedom of others begins, and nobody has the right to take rights away from other people. This is human rights 101, and anyone with even an entry-level knowledge of human rights could explain this. Bigotry has absolutely no place in a modern democracy, and it’s time for the United States to finally fulfill its obligations under international human rights law and pass strong human rights legislation outlawing hate speech while setting up Human Rights Tribunals in each state to investigate and prosecute people who engage in hate speech and other human rights abuses.
Outside of the US, even the most dedicated ultra-libertarians and free speech activists acknowledge that hate speech must always be outlawed, and that hate speech is not free speech. If anyone in Australia ever proposed that all laws against hate speech/vilification should be completely abolished, they would lose their job, they would lose all of their friends, and they would have to hire bodyguards. That’s not even an exaggeration. Outside of the US, hate speech laws have absolutely universal support from every single facet of society. Saying that there shouldn’t be any laws against hate speech would be like saying that there shouldn’t be any laws against child abuse. It’s just completely unthinkable in a civilized society where people have basic human rights and freedoms. It’s not something that anyone would ever even consider.
In civilized countries like Canada and Australia, we recognize that we are legally obligated to outlaw hate speech under international human rights conventions. Even if the public wanted hate speech laws to be repealed (which the public never would), the laws could not be repealed because all countries are required to outlaw hate speech under legally-binding international human rights conventions. In the US, this seems to be an utterly alien concept to the vast majority of the public. Is the US even aware that, by failing to pass and enforce laws against hate speech, it is explicitly violating international human rights law? Very rarely do I see any Americans acknowledge this. In civilized countries, it’s just common sense that international human rights conventions have to be obeyed to the fullest. It’s not even up for debate. Only in the US does the public and the government completely disregard these legally-binding international human rights laws.
Slurs and insults are not part of the “free exchange of ideas,” so the justification for “free speech” – that all ideas should be able to be discussed – doesn’t even cover that. In fact, slurs and insults are a kind of bullying that often discourage the target’s participation in discussion and debate in the “free exchange of ideas” and, therefore, slurs and insults are actually a crude form of censorship and themselves are an attack on another person or group’s freedom of speech. Vulnerable and marginalized groups cannot speak out openly when they are constantly hounded by hateful bigots spewing toxic vitriol at them. Hate speech is itself a form of censorship, and outlawing hate speech is thus required in order to protect freedom of speech.
At a time when racism, fascism, anti-Semitism, homophobia, and Islamophobia are surging in Europe, it is now more important than ever for the United States to finally fulfill its international human rights obligations and enact a law against all forms of hate speech. The fact that America still does not have a hate speech law in the year 2015 is a national embarrassment, and it’s an embarrassment that can be easily fixed. Under international human rights law, America is required to outlaw all forms of hate speech, along with hate groups and propaganda for war. Human rights defenders in the US need to make the creation of hate speech legislation their number one goal for the country, just like they’re doing in Japan right now. America needs to take a human rights-based approach to freedom of speech, balancing freedom of speech against human dignity, civility, and respect. Until the US passes comprehensive laws against hate speech, it will never be able to call itself a free country, much less the leader of the free world.