It takes as little as a flyer, a speech, a newspaper article, or a comedian to trigger calls for “hate speech” bans on college campuses. Considering that many college students support the prohibition of hate speech, let’s imagine if the would-be censors got their way — what would our society look like?
First, we must acknowledge that, in the United States, hateful speech is fully protected by the First Amendment. There’s no “hate speech versus free speech” debate raging in our nation’s judiciary. Nor is there a balancing test, an exemption, or a special constitutional provision allowing the government to prohibit it — hateful speech is categorically protected in our nation, including at public colleges and universities, and that’s not changing anytime soon.
Getting back to our hate speech-less utopia, we have the luxury of looking to an actual world full of hate speech prosecutions in the many nations that do not enjoy our broad free speech protections. For example, in Pakistan, people are arrested and sentenced to death for “blasphemy” for insulting Islam, while in Egypt, individuals are arrested for “debauchery” for waving rainbow flags at concerts.
Then, there are the thirty Turkish journalists currently facing consecutive life sentences for their anti-government articles, as well as the Kyrgyz author imprisoned for “inciting hatred between religious groups” for publishing a book questioning God’s form.
Don’t forget about Germany, where just this year police raided dozens of people’s homes for “hateful postings over social media,” or the United Kingdom, where a man was convicted for his anti-military Facebook comments, or France, where a man was fined for holding up a sign saying “Get lost, jerk” to French President Nicolas Sarkozy — words Sarkozy himself said to a critic who refused to shake his hand during a public event.
In response to the objection that such oppression would never happen in the United States, we at FIRE would argue that, well, it already has: Look no further than efforts to address hate speech on American colleges campuses, which have ensnared a professor for blogging about same-sex marriage, students for their racially-themed humor at a party, a student-created satirical play promoted as “offensive or inflammatory to all audiences,” and a student newspaper for printing political satire.
But what if outlawing such expression is the price we must pay for a more tolerant society? If only that were true.
Those urging a crackdown on hateful speech must explain why such laws are routinely used to target minority viewpoints and have done nothing to reduce levels of hate or intolerance in other countries. A 2014 article in The Daily Beast makes a salient point about how such laws actually have the opposite effect:
So one would assume that racial discrimination has been dumped on the ash heap of history in France, considering racist thoughts and symbols have been made illegal. How, then, does one explain that the National Front, whose former leader Jean-Marie Le Pen was found guilty of Holocaust denial, is now the most popular party in the country?
Advocates of hate speech bans should not be surprised to find that governments, when given the immense power to punish intolerance, have used this weapon against their critics. Investigative journalists, controversial politicians, political activists — these are the most frequent targets of hate speech laws. Even nongovernmental actors, such as Facebook, are inclined to use their hate speech policies to censor marginalized users.
This abuse of hate speech statutes is due to their excessively broad, vague, and subjective language. These laws aren’t scalpels used to surgically target hateful rhetoric, they are blunt instruments granting tremendous discretion to the officials tasked with enforcement. Considering that calls for campus hate speech bans are often coupled with allegations of a university power structure hostile to minority voices, is it that difficult to imagine these policies later stifling those very same voices?
Even assuming hate speech laws are enforced precisely the way are they intended, is eliminating the supposed harms of hateful speech worthwhile? If such speech is not just valueless, but so caustic that it physically hurts people, then why should we tolerate it?
The best case for hate speech is the history of political movements in the United States. The Abolitionist Movement in the 1800s, the Women’s Rights Movement in the 1850s, the Civil Rights Movement in the 1950s, and the advent of gay rights movements just a few decades ago would have undoubtedly run afoul of hate speech laws had they been in effect. Nor is it difficult to imagine members of Black Lives Matter, Alt-Right, and Antifa facing prosecution under such laws if they existed today. These movements came about because of a robust First Amendment, not in spite of it. Yesterday’s hate speech is today’s civil rights legislation.
We at FIRE believe that college students have the foresight to learn from the past, the humility to hold an open mind, and the courage to confront hateful speech with more speech, not violence or censorship. We’ve seen first-hand students persuade their ideological opponents and thrive in a society that resolves its problems in the marketplace of ideas rather than in the boxing ring. Yet for those who still believe that students are children too weak to live with freedom of expression, author Christopher Hitchens offers this challenge:
To whom do you award the right to decide which speech is harmful or who is the harmful speaker? Or determine in advance what are the harmful consequences going to be, that we know enough about in advance to prevent? To whom would you give this job? To whom are you going to award the job of being the censor?
To whom you would give the job of deciding for you, relieve you of the responsibility of hearing what you might have to hear?
Do you know anyone — hands up — do you know anyone to whom you’d give this job? Does anyone have a nominee? You mean there’s no one ... good enough to decide what I can read? Or hear?
Proponents of hate speech bans should not be shocked when the censors they empower enforce perverted conceptions of what qualifies as hate speech. Nor should they feel bewildered when their disempowered voices fall on deaf ears or draw the ire of the speech police.
Those calling for a world without hate speech need not look far away or far back to envision the society they seek to create. We encourage them to simply open their eyes.