The impulse is to protect the most vulnerable within society. So we advocate, campaign and legislate to safeguard the rights and freedoms of those deemed most worthy of our concern. We do so with often good intentions. Yet sometimes in our rush to help, we unintentionally infringe on other important rights and freedoms.
Hate speech laws designed to protect minorities from offensive or discriminatory language, for example, almost always come at the expense of someone else’s right to freedom of speech. Take the Public Order Act 1986 (UK), which targets specific kinds of speech and behavior with a string of offences. These include:
“Using threatening/abusive/insulting words or behavior or displaying written material with intent/likely to stir up racial hatred.” (s.18)
“Publishing/distributing written material which is threatening/abusive/insulting with intent/likely to stir up racial hatred.” (s.19)
“Distributing/showing/playing a recording intended to stir up religious hatred.” (s.29E)
“Possession of inflammatory material intended to stir up religious hatred.” (s.29G)
Each offence carries a maximum sentence of seven years. Now look at the vague language used to describe each offence; if what constitutes “insulting” speech and behavior varies from person to person subject to interpretation, the word is for all intents and purposes utterly meaningless, unless we wish to enforce laws based solely on people’s subjective experiences.*
The definitional difference between religion and race should be obvious. Race is determined by specific, immutable biological characteristics. Religion, on the other hand, is merely an organized set of ideas and beliefs. There is no reason to view religious groups as equally deserving of protection as racial groups, unless we wish to imprison people merely for subscribing to competing ideologies.
Dig deeper still to examine the concept of hatred itself. Incitement to hatred, which is unequivocally different from incitement to violence, is the crime of causing another person to think a thought. If the recipient of that thought is equally entitled to hold the same hateful opinion as the transmitter, then the law is indefensible, unless we wish to prosecute people for thoughtcrimes.
The Individual Cost
The Crown Prosecution Service (CPS) has pursued several cases under the 1986 act, perhaps the most egregious being the prosecution of Harry Taylor.
In November and December of 2008, anti-religious cartoons were found in the prayer-room of John Lennon Airport by the airport chaplain, who thereafter lodged a complaint with police in Liverpool. The cartoons were traced back to the militantly atheist Taylor, who was arrested and charged with religiously aggravated intentional harassment.
On March 4, 2010 Taylor was found guilty and sentenced to a six-month term of imprisonment suspended for two years. On top of his suspended sentence he received a five-year Anti-Social Behavior Order (ASBO), banning him from carrying religiously “offensive” materials in public, and was ordered to perform 100 hours of work without pay.
The Social Cost
It’s ironic that laws intended to make life fairer need to discriminate in order to do so. The logic is faulty: elevating one group of people above all others makes life statistically less fair.
The social consequences are actually counterproductive: nothing is done to ease the suspicion that minority groups are somehow different from the rest of society. Hate speech laws in particular send the message that certain people are either too weak or stupid to survive without special protections.
These are ill-conceived and poorly defined laws, regardless of intent. No consideration has been given to all-important details like wording, enforcement, potential knock-on effects, etc. And when you can’t nail down those all-important details, even the best of intentions doesn’t count for much.
*An amendment to remove the word “insulting” from Section 5 of the Public Order Act was passed into law in 2013.
• Hate Speech v Free Speech by Peter Tatchell