The Eternally Radical Idea

Hate speech laws backfire: Part 3 of answers to bad arguments against free speech from Nadine Strossen

September 30, 2021

In May, I published a list of “Answers to 12 Bad Anti-Free Speech Arguments” with our friends over at Areo. The great Nadine Strossen — former president of the ACLU from 1991 to 2008, and one of the greatest experts on freedom of speech alive today — saw the series and offered to provide her own answers to some important misconceptions about freedom of speech. My answers, when applicable, appear below hers.

Earlier in the series:


Assertion: Hate speech laws are important for reducing intolerance, even if there may be some examples of abuse. 

Nadine Strossen: U.S. free speech law does allow government to restrict “hate speech” a term that has no specific legal meaning, but is generally used to refer to speech conveying hateful, discriminatory ideas in appropriately limited circumstances: when the speech directly threatens certain serious, imminent harms, such as intentional incitement of imminent violence or targeted harassment. However, U.S. free speech law appropriately limits government from restricting hate speech solely because of disagreement with or disapproval of a speaker’s viewpoint, or because of vague fears the speech might indirectly lead to some potential harm at some future time.

Hate speech laws are inherently likely to be enforced in ways that further entrench dominant political and societal groups, and that further disempower marginalized individuals and groups.

Prior to the 1960’s, U.S. law did give government broader discretionary power to punish hate speech, and the laws in many other countries continue to do so. (I will use the term “hate speech laws” to refer to these kinds of measures.) These laws are often intended to promote important, positive goals, such as reducing intolerance. In practice, though, the laws are at best ineffective, and at worst counterproductive, in actually advancing those goals. For this reason, many human rights activists, all over the world, have opposed hate speech laws, noting that they too often are used to silence speakers who oppose government policies or advocate minority group rights even in modern democratic countries. 

It is important to understand that hate speech laws are inherently likely to be enforced in ways that further entrench dominant political and societal groups, and that further disempower marginalized individuals and groups. This pattern is not a result of occasional “abuses” of the laws, but rather is the inevitable, systematic result of any use of such laws, given their irreducible vagueness. Just consider the wide-ranging and even contradictory uses of the epithet “hate speech” in current U.S. political debates. For example, some powerful politicians denounce Black Lives Matter advocacy as hate speech, whereas others in turn denounce that very denunciation as hate speech. One person’s cherished repudiation of intolerance is someone else’s hate speech. 

No matter how many synonyms are invoked to try to circumscribe the inherently vague, broad, and manipulable concept of “hate,” these laws unavoidably vest broad discretion in enforcing authorities. Even when such authorities act in utmost good faith, they cannot enforce such unduly vague laws except in accordance with their own subjective values, or those of other people. As one would expect in a government where officials are (appropriately) accountable to their constituents, officials are likely to enforce these open-textured laws in accordance with the values of significant community interest groups.

One person’s cherished repudiation of intolerance is someone else’s hate speech. 

Even when hate speech laws are enforced to punish speech of avowed racists, they are not effective in reducing intolerance. There is no correlation between the enforcement of hate speech laws and the reduction of intolerance. For example, both during the Weimar Republic and in recent decades, Germany has strictly enforced strict hate speech laws. Yet Hitler and his Nazi party rose to power during the Weimar period, and today’s explicitly racist AFD party has grown dramatically in the recent past. Both periods saw disturbing upsurges in violence against Jews and other minority groups. In the U.S., although much progress remains to be made in reducing intolerance, much already has been made since the days of Jim Crow. Yet the constitutionality of hate speech laws was not called into question until the 1960s. In other words, the reduction in intolerance accompanied the reduction in government power to suppress hate speech not the opposite. In fact, civil rights leaders and historians alike concur that robust speech protection — extending even to hate speech — was necessary for promoting the racial justice cause; local officials routinely wielded any speech-restrictive laws to stifle civil rights advocacy.

Even when authorities act in utmost good faith, they cannot enforce such unduly vague laws except in accordance with their own subjective values, or those of other people.

Again, it is important to understand why the foregoing patterns are not merely coincidental, or the result of occasional “abuses” of hate speech laws. Rather, such laws’ inherent features doom them to inefficacy in combating intolerance. 

Logically, hate speech laws leave three options for those inclined to engage in the targeted speech, all of which have negative consequences for reducing intolerance: Some hate speech will be driven underground, thus reducing opportunities for discovering and dissuading those who purvey or heed it; some will be camouflaged in more subtle rhetoric to evade punishment, thereby making the speech more appealing to a broader audience; and some will remain unchanged, or perhaps even ramped up, as the speakers seek the publicity that results from suppression efforts.  

Committed racists and their supporters are not likely to repudiate their beliefs in response to censorship or punishment, but to the contrary may well become more resentful and hardened in their attitudes. Moreover, attempts to suppress their ideas inevitably draw more attention to those ideas. This phenomenon is so common that there are multiple terms for it, including “the Streisand effect,” which refers to an effort by Barbra Streisand to suppress online photographs of her Malibu beach house, which had the direct opposite effect — dramatically increasing the number of people who viewed the photographs. The added attention to the targeted hate speech leads to increased sympathy from some quarters, including from those who view the speakers as free speech martyrs. For these reasons, many hatemongers welcome attempted or actual censorship. Far from muting their ideas, such efforts amplify them. For these same reasons, experts in combatting intolerance, such as the Southern Poverty Law Center, oppose efforts to suppress white supremacist speakers or rallies. The SPLC explains that such suppressive efforts might feel morally satisfying, but they are strategically counterproductive, giving hatemongers the very attention they crave.

Committed racists and their supporters are not likely to repudiate their beliefs in response to censorship or punishment, but may well become more resentful and hardened in their attitudes.

While censorship is an ineffective means to reduce intolerance, non-censorial strategies have shown much more promise in doing so. The term “counterspeech” is often used to describe any speech that counters the ideas and attitudes reflected in hate speech. It can take countless forms and be tailored to myriad particular contexts and purposes, including, for example: proactive education that instills values of tolerance and support for equal human rights for all; responsive information and analysis to refute advocacy of discriminatory policies; and supportive communications to individuals who have been disparaged by hate speech. Contrary to common misconceptions, counterspeech should not be the responsibility of individuals or groups who are targeted by hate speech. Nor should counterspeech be limited to defensive responses to hate speech. Rather, all of us who are committed to countering hatred and discrimination should seize every opportunity to proactively advocate tolerance and related values, including equality, dignity, diversity, and inclusion. 

Many self-described “formers” — former members and even leaders of groups espousing hateful doctrines — have been “redeemed” (as they refer to it) as a result of exchanges with others, who reach out to them with compassion and empathy, helping the “formers” wean themselves away from their hateful ideologies. Such “redeemed” individuals consistently attest that treating them in a punitive or stigmatizing way, in contrast, only has an alienating impact. This experience aligns with the increasing support for “restorative justice” as a more constructive approach to addressing any anti-social conduct than the punitive approach our criminal justice system has traditionally pursued. 

Multiple reports by human rights activists in many countries and in international agencies have concluded that counterspeech should be prioritized over censorship. Even though hate speech laws are permitted in these other countries, human rights experts have concluded that counterspeech is preferable from a pragmatic perspective. For example, the European Commission against Racism and Intolerance, which monitors the implementation of the many European hate speech laws, recently concluded that, in contrast with such laws, “counterspeech is much more likely to be effective” in countering intolerance. 

Greg Lukianoff: Since the widespread passage of hate speech codes in Europe, religious and ethnic intolerance there has gone up. During the same period, ethnic and religious tolerance has improved in the United States.

At least a dozen Western European countries have hate speech laws, many of which run counter to their legal or historical commitments to free speech. But even though those laws have been on the books for years, by most measures Western Europe is less tolerant than the U.S.

Western Europe as a whole scores 24% on the antisemitism index, meaning about 24% of the population harbors antisemitic attitudes — even though many of their hate speech laws explicitly prohibit Holocaust denial. In the U.S., with no such laws, the antisemitism index is ranked at 10%.

Censorship doesn’t generally change people’s opinions, but it does make them more likely to talk only to those with whom they already agree.

If it were true that hate speech laws reduce intolerance, we would expect to see fewer hate crimes where such laws exist. Yet, in 2019, in the U.S., there were 2.61 hate crimes per 100,000 people; while conversely, in Denmark, there were 8.08 per 100,000 people; in Germany, 10.34; and in the United Kingdom, a whopping 157.67.

Nor has restricting hate speech prevented the spread of intolerance. In 1986, the U.K. passed a law against “words or behaviour … likely to stir up racial hatred”; yet, in the 1990s, racial tolerance decreased. Despite having hate speech laws since the 1980s, Germany is experiencing increased Islamophobia and antisemitism. France passed its Gayssot Act outlawing Holocaust denial in 1990, yet as recently as 2019 it held a 17% antisemitism index score.

I don’t just believe that cracking down on hate speech failed to decrease intolerance. I think there are solid grounds to believe that it helped increase it. After all, censorship doesn’t generally change people’s opinions, but it does make them more likely to talk only to those with whom they already agree. And what happens when people only talk to politically similar people? The well-documented effect of group/political polarization takes over, and the speaker — who may have moderated her belief when exposed to dissenting opinions — becomes more radicalized in the direction of her hatred.