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Saturday, January 14, 2023

Hate Speech Laws: The Best Arguments for Them—and Against Them

Hate speech is a problem, but hate speech laws are not a solution.


What is hate speech, and why is it so controversial?

Hate speech is tricky to define (more on that later), but a workable definition is:

Any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons on the basis of race, religion, skin color[,] sexual identity, gender identity, ethnicity, disability, or national origin.”

Hate speech can have severely negative impacts on its targets, which is one reason people on every side of this issue condemn it.

Yet whether or not hate speech should be prohibited by force of law is less clear.

Those who would ban hate speech cite the impact it has on victims. They also contend that a culture of hate speech leads to criminal violence, even genocide.

Most defenders of free speech condemn hate speech but defend the right to utter it. They contend that legislating hate speech doesn’t work, and often backfires. They also argue that we should distinguish vices from crimes, and that vices are better handled through non-governmental action.

Vices vs Crimes

What is a vice, and how is it different from a crime? This distinction is at the heart of why so many free speech supporters consider it unjust for the government to imprison, fine, or censor someone over hateful speech.

As the great abolitionist lawyer Lysander Spooner wrote in his essay Vices Are Not Crimes, “Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another.”

A vice also may cause distress to those around us, but doing something someone dislikes is not in and of itself a rights violation.

Spooner argued that only acts that violate someone else’s rights—that is, their person or property—should be considered crimes.

Lying around the house all day in a drunken stupor is a vice. It’s obnoxious, and it imposes social costs on your friends and family. But it doesn’t violate anyone’s rights. If your friends and family get tired of you, they can simply exercise their own right to stop spending time with you.

Burning down your neighbor’s house, by contrast, is a crime. It violates your neighbor’s property rights. Those who commit crimes are subject to the use of force (including governmental force) so as to defend and restore victims.

Hate speech is a vice. Like daily drunkenness, it’s bad behavior that can be distressful to those who associate with you.

But vices are not crimes. The relevant question is not, “is X vice good or bad?” The relevant question is, “are we justified in sending people with guns to threaten and imprison people who do X vice?”

The answer is an emphatic no. The use of government force (such as the state sending police to haul someone off to jail) is only justified in response to rights violations (such as murder or arson). Imprisoning someone for using a racial slur is morally indefensible; it’s a solution that’s far worse than the problem it tries to solve.

The Right to Freedom of Speech

How do we distinguish crimes from non-crimes (including both vices and virtues)? We spoke above about rights, but what exactly does that mean?

According to classical liberalism—the political philosophy underpinning the US Declaration of Independence and Bill of Rights—the foundational right from which all other rights spring is the right to ownership. The right to ownership isn’t merely the right to own land. Instead, this right is composed of two elements:

1) Self-ownership. As a human being, you have an inalienable right to your own person. Anyone who physically assaults you, holds you captive, or coerces you violates that right.

2) Property in goods. You also have the right to own external goods. For example, if you make a printing press, you have a right to use that press as you see fit. Now maybe you didn’t make the press yourself, but bought it. In that case you still have an inalienable right to it, because you traded the products of your body (the goods or services you produced) for money which you used to purchase the printing press.

The great philosopher John Locke puts it succinctly in The Second Treatise of Government: “every Man has a Property [that is, ownership] in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.” (emphasis in original).

In this conception, free speech flows inevitably from the concept of ownership rights. You have absolute ownership over your own vocal cords, therefore you can speak whatever words you wish. You can also acquire ownership of a printing press (or a website) and use those tools however you wish.

In this sense, the right to say words that most people consider vile or blasphemous—including the right to publish those words using tools you own, or contract with others who own those tools—cannot morally be curtailed. The right over your own body is fundamental to what it means to be a human.

By contrast, while some people are (justifiably) offended by racial and sexual slurs, there is not and cannot be a right to not be offended.

On a moral level, you cannot be held responsible for someone else’s thoughts and feelings. The assumption of that positive right (a positive right is one that imposes burdens on other people’s behaviors) would curtail your own rights.

On a practical level, laws based on a supposed positive right to not be offended are a disaster. The reason is that offense is inherently subjective; speech that offends one person can make another simply shrug (and vice versa).

The United Kingdom provides a chilling example of what happens when the law authorizes throwing people in jail for causing offense. The Hampshire government recently passed a law banning, “malicious communication,” that is, communication sent, “with the intent to cause the recipient distress or anxiety.” The criteria for determining what constitutes malicious communication are inherently subjective: they depend on the communication’s “potential impact” and (most concerning) “how the other party might interpret your behavior.”

What was the result of this law? People started being arrested for making memes on social media. One man made a meme of the trans rights flag that’s shaped like a Swastika. Police officers showed up to take him into custody. As they explained to the meme-maker, “Someone has been caused anxiety based on your social media post. And that is why you’re getting arrested.”

Beyond being a gross violation of civil liberties, the idea that causing anxiety should be illegal is hardly a good legal standard. One wonders if the victim of the arrest could have the officers themselves arrested, on the grounds that throwing him in jail caused him anxiety.

The First Amendment

Speech is not a crime; that is, even hateful speech doesn’t violate anyone else’s rights. By contrast, throwing someone in prison for speech would be a crime, because it unjustly curtails their right over their own person and property.

The First Amendment is grounded in this classical liberal idea of ownership rights. As George Stephens notes in an article with the classical liberal John Locke Foundation, Locke’s ideas of ownership rights (what Locke called property rights) were foundational to the United States’ founding documents.

When the Amendment was written, governments already had a long history of imprisoning citizens for speech they didn’t approve of. As Jacob Mchangama documents in his book Free Speech: A History from Socrates to Social Media, England’s King Henry VIII outlawed books and other writings that insulted the royal person or made claims that Henry VIII determined to be false.

By guaranteeing the rights to speech and assembly and the press, the Founding Fathers hoped to protect the fledgling country from any government that tried to throw citizens in jail for speaking their mind.

But defense of the First Amendment isn’t just a libertarian principle. The left-leaning American Civil Liberties Union (ACLU) has defended the speech rights of Nazis and of KKK members. One reason for the ACLU’s decades of principled defense is this: if we empower the government to censor people whose views we find abhorrent, sooner or later that same power will be turned against people whose views we find noble.

As Nadine Strossen, president of the ACLU from 1991 to 2008, puts it, “It is precisely those who lack political or economic power who are the most dependent on robust freedom of speech.”

Liberal titan Noam Chomsky puts it even more bluntly: “If we don’t believe in freedom of expression for those we despise, we don’t believe in it at all.”

Why Do People Want to Ban Hate Speech?

Why do some people want to ban hate speech? Their arguments, in brief, are as follows:

1) The idea that hate speech can cause physical harm to its victims

2) The idea that hate speech has nothing to offer the marketplace of ideas

3) The idea that legal hate speech creates a cultural norm supporting racial slurs, demoralizing current and potential victims

4) The idea that hate speech primes the pump for violence and genocide

5) The idea that legalizing hate speech is defending the bad guys

Let’s consider each of these arguments in turn.

1) The Idea That Hate Speech Can Cause Physical Harm to Its Victims

The first argument is the idea that hate speech isn’t just irritating; it can cause real damage to its victims. Richard Delgado and Jean Stefancic lay out the case in their article “Four Observations about Hate Speech” published by Wake Forest Law Review:

“Although some courts and commentators describe the injury of hate speech as mere offense, the harm associated with the face-to-face kind, at least, is often far greater than that and includes flinching, tightening of muscles, adrenaline rushes, and inability to sleep. Some victims may suffer psychosocial harms, including depression, repressed anger, diminished self-concept, and impairment of work or school performance. Some may take refuge in drugs, alcohol, or other forms of addiction, compounding their misery.”

In a New York Times op-ed titled “When is speech violence?”, clinical psychologist Lisa Feldman Barrett makes a similar argument: “If words can cause stress, and if prolonged stress can cause physical harm, then it seems that speech—at least certain types of speech—can be a form of violence.”

If the targets of hate speech suffer physical harm—by causing stress, by robbing them of sleep, by increasing their blood pressure—then, the argument goes, perhaps we are justified in using the power of the state to protect victims from that harm.

Counterpoint to This Claim

The claim that we should ban hate speech because it can cause harm to its victims rests on a confusion of two terms. In reality, hate speech can (but doesn’t always) lead to distress; it does not lead to harm.

What’s the difference? Harm, in the classically liberal sense, is a rights violation. Being punched in the nose causes harm. Distress is unpleasant, but a feeling of distress does not mean that your rights were violated.

Hate speech can lead to distress, but it doesn’t follow that we should ban hate speech.

Writing in The Atlantic, social psychologist Jonathan Haidt acknowledges that hateful speech can cause distress while rejecting the idea that we should therefore ban said speech. As Haidt notes, other behaviors that can cause distress include, “gossiping about a rival” or “giving one’s students a lot of homework.” As Haidt explains, “Both practices can cause prolonged stress to others, but that doesn’t turn them into forms of violence [i.e. harm].”

Haidt’s examples further illustrate the central distinction between vices and crimes. Banning crimes (i.e. things that cause harm) is important in a free society. A ban on vices, be it hateful speech or gossiping about a rival, would be a tyrannical restriction of people’s freedom. Essential to the very concept of freedom is the freedom of others to do and say things that we personally do not approve of.

The argument that we should ban hate speech because of the distress that hate speech can cause also rests on the mistaken view of “naive statism.” It assumes that hate speech laws (or any law, for that matter) will work precisely as intended: X is bad, so you ban X and that’s the end of the story. In this fairy tale, there are no unintended consequences, and bans on X don’t backfire.

In reality, the impact of hate speech laws is very different from what proponents imagine. What is their actual impact?

Hate Speech Laws Empower Politicized Censors

First off, hate speech has no agreed-upon definition. It’s inherently subjective. Further, these laws cannot be narrowly tailored. The law is a blunt instrument, made more blunt when it goes after behavior that cannot—by its very nature—be nailed down.

To see precisely how hard it is to nail down what is and isn’t hate speech, let’s consider some examples.

Should the n-word be banned? Many people consider that a clear-cut example of hate speech. But what about when it’s uttered by a professor who’s reading verbatim from the James Baldwin book The Fire Next Time (a book about racial injustice in the 20th century)?

Should anti-trans speech be banned? Many commentators seem to think so, but what would that mean? Would “deadnaming” a trans person (referring to them by their pre-transition name or gender) qualify? What about a parent refusing to call their trans child by preferred pronouns; should that parent be locked in prison (as has happened in Canada)?

These are just a couple of the endless edge cases that cannot be decided in advance and that any hate speech law must therefore leave to the broad discretion of state authorities.

Bans against XYZ hate speech are enforced by those in power. Any bans will be politicized by their very nature, because one person’s righteous anger is another person’s hate speech. We can see this on Twitter, which combines censorious impulses with far-left politics to create shockingly politicized bans. Sarah Jeong, former editorial writer for the New York Times, made hateful tweets such as, “Are white people genetically predisposed to burn faster in the sun, thus logically being only fit to live underground like groveling goblins,” and, “oh man it’s kind of sick how much joy I get out of being cruel to old white men.”

In spite of the fact that Jeong’s tweets vilified people on the basis of race, Jeong is still active on Twitter.

Across the aisle, though, the Christian satire outlet The Babylon Bee wrote an article naming Rachel Levine (a transgender woman and US Assistant Secretary For Health at the US Department of Health and Human Services) as “Man of the Year.” Twitter decided that that satire was more hateful than Jeong’s tweets, and suspended The Babylon Bee for their post. (The Bee was reinstated after Elon Musk’s purchase of Twitter.) 

When censorious laws are applied by people with political biases (that is, by human beings) they will inherently be applied unevenly. Imagine your political opponents having the power to ban subjective hate speech. Republicans might ban any discussion of Critical Race Theory. Democrats might ban any criticism of the transgender rights movement.

This isn’t hypothetical, and it doesn’t just happen on Twitter. These kinds of laws are always applied by those in power to punish ideas they don’t like. In the United States in the 1950s, “criminal syndicalism” statutes made it a crime to advocate violence in order to achieve a certain political end. These laws were weaponized against political ideas that US rulers didn’t like. Writing for the American Enterprise Institute, Tom Snyder notes that:

“While framed in general terms, those statutes were mostly intended to make it illegal to advocate the adoption of Marxism, communism, and most forms of socialism – all of which preached the need for a violent workers revolution – in the US. Criminal syndicalism statutes could thus criminalize not only pure speech advocating Marxism, but also being a member of a party that advocated Marxism.”

The result was the widespread purge of leftists known as McCarthyism. Censorship advocates should be wary of ushering in another purge.

Hate Speech Laws Drive Bigots Underground

Even when hate speech laws actually target genuine hatred, they don’t eliminate it; they just drive bigots underground. This actually makes it harder to root out bigotry and to confront prejudiced people with the ideas necessary to help them move past their prejudice.

Daryl Davis is a black jazz musician who befriends KKK members and convinces them to disavow their racist beliefs. He finds them, talks to them in earnest, listens to their hatred…and changes their minds. To date, he’s convinced more than 200 KKK members to hang up their robes, including an Imperial Wizard (the highest-ranking member of the Klan).

In a world where white supremacists weren’t free to utter their noxious beliefs, Davis’ work would be impossible. He wouldn’t know who to target.

Davis’ work requires that KKK members be free to express their ideas, because only then can he counter them. He tells the story of a KKK member who told him that, “Well we all know that all black people have within them a gene that makes them violent.” By listening to the white supremacist, Davis was able to flip the script and offer a counterargument. Davis responded, “Well, we all know that all white people have a gene within them that makes them a serial killer.” When the KKK member got offended, Davis responded with, “What I said was stupid, but no more stupid than what you said to me.”

According to Davis, after his rejoinder the white supremacist, “got very, very quiet and changed the subject. Five months later, based on that conversation he left the Klan.”

If bigots don’t air their ideas in public, they’re less likely to be exposed to a solid refutation of those ideas. If the KKK member who told Davis that all black people had a violent gene inside of them had never been able to air his ideas, Davis never would have been able to rebut them. Rather than hanging up his robes, the man would likely still be a part of the Klan.

Here’s the flip side of the same concept: driving bigots underground radicalizes them. In a world where their hateful ideas are banned, these men and women will only feel free to express their thoughts to people who already agree with them. That creates echo chambers.

Hate Speech Laws Rob Minorities of Key Information

Driving bigotry underground also robs minorities of important information.

For example, if you force Christians who think homosexuality is a sin to bake wedding cakes for same-sex couples, then same-sex couples cannot discriminate in their choice of a cake maker. They cannot vote with their dollars and give money to more tolerant Americans, while avoiding giving money to homophobes.

They also cannot factor a cake-maker’s beliefs about homosexuality into their decision of which cake maker to hire, even though those beliefs are highly relevant. A cake-maker who supports gay marriage is more likely to pour dedication and craftsmanship into the cake. A cake maker who opposes gay marriage, and resents being forced by law to violate his religious beliefs, is more likely to spit in the cake…or at least not put in his best work.

Hate Speech Laws Turns Bigots Into Martyrs

At the same time that hate speech laws drive many bigots underground—preventing the rest of society from being able to engage with and cure their prejudice—it turns the few who stand against the laws into martyrs.

Weimar Germany tried to censor Hitler and the Nazis before they rose to power. The state used hate speech laws aggressively in an attempt to crack down on Nazi ideology. The Weimar Republic shut down hundreds of Nazi newspapers and actually banned Hitler himself from speaking in many parts of Germany from 1925 until 1927.

Far from being crippled by these laws, the Nazis leveraged this censorship to build awareness and support for their ideas. One poster read, “Why is Adolf Hitler not allowed to speak? Because he is ruthless in uncovering the rulers of the German economy, the international bank Jews and their lackeys, the Democrats, Marxists, Jesuits, and Free Masons! Because he wants to free the workers from the domination of big money!” A 1920s cartoon said of Hitler, “He alone of two billion people on Earth may not speak in Germany.”

Greg Lukianoff, CEO of the Foundation for Individual Rights in Education, explains the net effect: “Far from being an impediment to the spread of National Socialist ideology, Hitler and the Nazis used the attempts to suppress their speech as public relations coups. The party waved the ban [on Hitler speaking] like a bloody shirt to claim they were being targeted for exposing the international conspiracy to suppress ‘true’ Germans.”

This was especially effective because Nazi ideology already posited an international Jewish conspiracy to disempower Aryan Germans. Hitler was able to spin the censorship as evidence of those claims: the powers that be wanted him silenced because he was exposing their secrets.

Reporting on hate speech trials similarly empowers hateful actors by elucidating the bigots’ ideas. In Canada, where denying the Holocaust is seen as a criminal offense, a Holocaust denier was brought to court in 1985. Journalists at the New York Times who covered the case had to explain his ideas and reasoning in order to inform their readers of the controversy. It is hard to imagine a more effective PR vehicle.

Crucially, this reporting amplifies bigots’ ideas in a way that doesn’t encourage meaningful discussion. More people were exposed to the claim that the Holocaust wasn’t real, but Holocaust deniers weren’t given a chance to discuss their arguments and therefore change their minds. It therefore represents the worst of both worlds: media coverage elevates bigots’ ideas without providing a vehicle to cure them of their prejudice.

Hate Speech Laws Create More Bigotry

Hate speech laws can backfire in another way, too: they can create the illusion that prejudice is both popular and based on sound ideas, inadvertently strengthening the case of bigots in society.

In an email to me, Lukianoff described how hate speech laws can create the illusion that hatred is widely popular in society.

“…[B]anning certain opinions often leads many people to believe that those opinions are so dangerous and sufficiently widely held that they must be banned with the extraordinary force of law…This not only can but will send a message that more people hold certain views than actually do.

This results in what John L. Jackson dubbed ‘racial paranoia,’ the sense that the only reason why white people aren’t espousing hateful rhetoric is because of the force of law, rather than because they do not in fact agree with such opinions and rhetoric.”

Speech suppression can embolden people with hateful views, because it creates the mistaken impression that the silent majority agrees with their prejudice. Even worse, this “racial paranoia” can actually lead people towards bigotry. Humans are social animals, after all. If we believe that most of our peers hold XYZ belief, we’re more likely to at least consider the belief in a positive light.

Bans against hate speech can also send the message that hateful ideas are too effective to counter with reasoned argument. As Tyrion Lannister said in A Clash of Kings (the second book in the A Song of Fire and Ice series that inspired the popular Game of Thrones TV show), “When you tear out a man’s tongue, you are not proving him a liar, you’re only telling the world that you fear what he might say.” Hate speech laws send the message that bigotry cannot be rebutted in the marketplace of ideas. After all, an idea that can be easily rebutted isn’t so dangerous it needs to be banned; it’s merely dumb.

Or as Lukianoff puts it: hate speech laws “can actually prompt people into seeking evidence for why the ‘bad guys’ might be onto something.”

This isn’t just theory. Many countries in Western Europe have passed aggressive hate speech laws, but their peoples are far more intolerant than US citizens. 24 percent of the total population in Western Europe harbors anti-Semitic attitudes, according to an index of anti-Semitism created by the Anti-Defamation League (a nonprofit dedicated to measuring and combating anti-Semitism). This is in spite of the fact that many Western European hate speech laws explicitly prohibit Holocaust denial.

In the United States, the number of folks who harbor anti-Semitic attitudes is just 10 percent.

Hate speech laws may even contribute to bigotry. As Lukianoff explains, “…[I]n practically every country that passed laws against anti-Semitism in Europe reported rates of anti-Semitism have gone up, and substantially. America which has not enacted such laws has not seen a similar increase.”

In 1987, the United Kingdom passed a law against, “words or behaviour … likely to stir up racial hatred.” In the following years, racial tolerance actually declined.

According to a 2017 study published in the European Journal of Political Research, the recent rise in Western European extremism was partly fueled by, “extensive public repression of radical right actors and opinions.”

2) The Idea That Hate Speech Has Nothing to Offer the Marketplace of Ideas

The second argument used by proponents of hate speech bans is that hate speech isn’t useful to society, so we lose nothing by banning it.

Understanding this argument fully requires us to back up for a moment, into one of the defenses of free speech. Some free speech defenders argue that we shouldn’t ban certain words or ideas, because freedom is essential to the “marketplace of ideas.” That is, if we create an open marketplace wherein ideas of all kinds are free to battle it out, then we as a society will eventually move closer to truth. Everyone benefits.

But proponents of banning hate speech argue that hate speech doesn’t contribute anything of value to this marketplace. It doesn’t improve us as a society, and it doesn’t help society get anywhere we should want to go; so there’s no downside to banning it. As David Shih writes for NPR, “It might mean that racist hate speech is not a ‘necessary evil’ that jumpstarts racial justice within a liberal marketplace but is — for the foreseeable future — nothing more than state-sanctioned injury of people of color.”

Counterargument to This Claim

The idea that so-called hate speech contributes nothing of value to society rests on two mistaken premises.

First, “hate speech” doesn’t just mean racial slurs. Hate speech laws are applied selectively by those in power, and throughout history governments have criminalized lots of ideas that we now think have value.

In 2014, a Brooklyn graffiti artist was arrested on hate crime charges. Her alleged crime? Spraypainting messages like, “NYPD pick on the harmless” and “a wrongful arrest is a crime.”

Across the aisle, radical feminists in England have run afoul of hate crime laws. Their alleged crime? Insisting that men and women are marked by biological differences. Say what you will about trans rights, but it’s hard to see how stating biological facts doesn’t contribute at least something to our national discourse.

A few years ago, the “lab leak” theory of the COVID-19 outbreak (that the virus might have originated from a lab in Wuhan, China) was dubbed a hateful and racist idea. Now evidence is emerging that the theory might be true. This showcases a fundamental problem with attempts to outlaw hate speech: yesterday’s fringe conspiracy theories can become today’s plausible arguments. Prominent journalists smeared and dismissed the “lab leak” theory, which hurt our overall understanding of the pandemic.

But even if we only look at racist and sexist slurs, the idea that hate speech has no value to society rests on a flawed understanding of why free speech is important.

It’s true that racial epithets don’t contribute to the marketplace of ideas, but that’s not the only value of free speech. There’s another value in letting people speak freely, which is that free speech helps us all understand each other—and the society in which we live—a little better.

Greg Lukianoff calls this the “Lab in the Looking Glass” theory. As he describes it:

“Imagine being a scientist and showing up to a new fully staffed laboratory with all of the best equipment that’s ever been invented. You have not been told about the project you will be working on, but there is a huge curtain in front of you. The director of the project announces that the study is the most challenging that has ever been undertaken and you will not be able to finish it in your lifetime, but even knowing a little bit more about the subject will be of nearly limitless value. He pulls back the curtain to reveal a gigantic mirror looking right back at you.”

“You and your colleagues are to be the subjects. The project: to know everything about you and everything related to you.” (emphasis in original).

If we want to understand human nature, and the society that we live in, then of course letting bigots speak is essential. Prejudice is an unfortunate part of many folks’ psychology, and understanding that prejudice requires listening to them.

This understanding isn’t just useful for abstract philosophy either. More practically, we can only treat an illness when we fully understand it. If data came out tomorrow that 30 percent of Americans think black people are inferior, that would be terrible. It would also represent essential information for us to know about our society, because only when we are armed with this information can we craft any kind of useful response.

Curing prejudice requires understanding it. Understanding it requires letting the carriers of that prejudice speak.

3) Hate Speech Creates Social Contagion of Bigotry

The third argument used by proponents of hate speech bans represents a “social contagion” view of hate speech. The idea is that if John calls a black man the n-word in public, then people around John will start to think this kind of rhetoric is acceptable. Bigots will feel more free to express themselves, and social norms will change to encourage racism as white folks on the fence start to wonder if John is on to something with his racial hatred.

Delgado and Stefancic sum up this perspective: John’s actions may “giv[e] onlookers the impression that baiting minorities is socially acceptable, so that they may follow suit.” For Delgado and Stefancic, this open acceptance of racial slurs can even produce racism: “many Americans harbor measurable animus toward racial minorities. Might it be that hearing hate speech, in person or on the radio, contributes to that result?”

Counterpoint to This Claim

The biggest problem with this “social contagion” theory is that it gets the facts precisely backwards. Hearing hateful speech doesn’t make someone more likely to become prejudiced. In his book, Free Speech: A History from Socrates to Social Media, Jacob Mchangama makes this point using one of the most starkly hateful regimes from human history. Nazi Germany didn’t just legalize anti-Semitic hate speech, they used government organs to pump out non-stop propaganda about Jews. If the “social contagion” theory was remotely true, this firehose of state-sponsored hatred should have driven anti-Semitism through the roof.

What actually happened? Measures of anti-Semitism barely budged. Nazi propaganda got a foothold “in districts where anti-Semitism was already prevalent before the Nazi takeover.” In other parts of Germany—for example, among the working class and Catholics—Nazi propaganda didn’t generate the hoped-for hatred of Jewish people.

Why didn’t a flood of hate speech generate widespread anti-Semitism among the German people? Aldous Huxley, author of Brave New World, described the limits of propaganda in 1936:

“Propaganda gives force and direction to the successive movements of popular feeling and desire; but it does not do much to create these movements. The propagandist is a man who canalizes an already existing stream. In a land where there is no water, he digs in vain.”

Hate speech—even when made pervasive and pushed with all the power of a totalitarian government—can empower bigots to speak more openly, but is ineffective at actually creating more prejudice.

By contrast, as we saw in looking at Western Europe, banning hate speech can create more prejudice. There’s a reason that Western Europe has over twice the anti-Semitism on average as the United States.

It’s also worth noting that unlike Nazi Germany—or even large swathes of Western Europe—the United States is not a particularly hateful place. A white man shouting the n-word at a black man in a crowded area is unlikely to be met with cheers and applause. He’s far more likely to be met with boos, social condemnation, and even fists in certain parts of the country.

As Lukianoff, himself a liberal who’s never voted for a Republican, explained to me, “I think people like Delgado have misled young people into thinking that nobody thought about racism prior to 2020. Meanwhile, growing up in the 1980s, at least in the circles I was in, racism was already taken for granted to be a great evil. No law forced us to think that way.”

What about the idea that if we as a country allow hate speech, then those in power (i.e. We the People in a republic) are giving their tacit approval to bigotry? Lukianoff finds that argument more than a little absurd:

“The argument that if one opposes making any sort of speech illegal that he or she somehow agrees with or condones it is hard to take seriously. Even assuming the most constrained, minimal interpretation of free speech in which it only goes as far as absolutely necessary to maintain a democratic republic and therefore should only apply to speech relating to self-government, you still do not end up in a place where a decision not to make opinions, views, or kinds of speech illegal is the same as approving of them.”

As Lukianoff explained to me, the idea that if something is legal, it must follow that those in power support it, is hard to square with the ideals of a republic. That sort of logic might fly in a monarchy: the king dislikes something, ergo it is banned. But in a republic, we understand that freedom means the freedom to do things that those in power don’t approve of.

4) Hate Speech ‘Primes the Pump’ For Violence and Genocide

The fourth argument used by proponents of hate speech bans is that racist violence flows from racist speech. The demonization of one group in society encourages hatred against that group. Violence and genocide flow downstream from this hatred.

Or as United Nations Secretary-General Ban Ki-moon put it, “One of the key warning signs [of genocide] is the spread of hate speech in public discourse and the media that targets particular communities.” Based on this claim, he called for governments to “stand firm against hate speech and those who incite division and violence.”

Ban Ki-moon cited the 1994 Rwandan genocide as evidence that hate speech lays the groundwork for violence. Other commentators have cited the Third Reich’s demonization of Jews to back up the notion that hate speech leads to violence.

Counterpoint to This Claim

Both of these examples seem a little strange, because they’re examples of state-sponsored propaganda. That’s a completely different beast from simply legalizing hate speech.

Nazi Germany illustrates the difference well. As discussed above, Nazi propaganda was ineffective at generating anti-Semitic attitudes among adults. But there was one group where it was successful: young people.

Mchangama writes that, “Studies have shown that Nazi propaganda was most effective on young Germans—more impressionable, with little experience of living in a free society and subject to institutional indoctrination in schools and Hitler Youth organizations….”

This makes sense. If you take young people and subject them to endless propaganda from teachers and other leaders about how XYZ population is awful and must be scourged from the earth, then many of those young people will start to believe it. Schools mold minds.

But does anyone think that’s remotely applicable to a discussion of hate speech regulation? Do Delgado and Stafancic believe that, in the absence of laws banning hate speech, our schools are simply propaganda organs indoctrinating young people in the idea that racial minorities are inferior? The comparison is absurd.

The idea that the 1994 Rwandan genocide—in which Hutus, the ethnic majority, slaughtered an estimated half a million members of the Tutsi ethnic minority—represents an argument in favor of hate speech laws is similarly more than a little strange.

It’s true that the genocide was accompanied by a wave of speech demonizing the Tutsis. As former US ambassador to the United Nations Samantha Power described the genocide, the killers, “carried a machete in one hand and a transistor radio in the other.”

But this speech was created and propagated by state outlets. Radio stations that didn’t tow the governmental line were banned. There was an official state radio station, and most other stations were controlled by pro-government forces.

Lukianoff describes the importance of this distinction. “To use the authorized media of a genocidal state as evidence of the danger posed by excessive liberty suggests a failure to understand the core concept of liberty.”

Even if the radio messages had come from private individuals, they wouldn’t qualify as protected speech in the United States. These messages provided the names and addresses of Tutsis along with a call to kill them. That’s not protected speech; that’s incitement to commit murder, which is already illegal under existing United States law.

But what about the messages that didn’t rise to the level of incitement, but did still carry toxic messages about Tutsis? Here proponents of hate speech laws are on stronger ground, but only slightly.

It’s possible that this expression laid the groundwork for the genocide, but that claim is tenuous and experts are split on whether or not it’s plausible.

Political scientist Scott Strauss performed a deep analysis of radio reception and genocidal violence in Rwanda in order to ascertain to what effect radio messages drove the murders.

He found that radio broadcasts only reached 5-10 percent of the population. In 1994, only 10 percent of the population even owned a radio, and coverage was uneven. Further, the initial violence didn’t correlate with areas of broadcast coverage. He concluded that radio broadcasts had “marginal and conditional” effects, but that “radio alone cannot account for either the onset of most genocidal violence or the participation of most perpetrators.”

Richard Carver, who worked with both Amnesty International and Human Rights Watch, concluded that, “[t]he massacres would have taken place with or without the RTLM [Radio Television des Mille Collines, the primary radio station in Rwanda at the time] broadcasts.”

When we look at the impact of actual hate speech laws, rather than government propaganda designed to incite murder, the idea that private hate speech leads to violence just doesn’t hold up.

Denmark, Germany, and the United Kingdom all have strong hate speech laws, while the United States does not. If legal hate speech truly primed the pump for violence, then we should expect the United States to have more hate crimes than these three countries.

In fact, we see the opposite pattern. In Denmark in 2019, there were 8.08 hate crimes per 100,000 people. In Germany, the number was 10.34 per 100,000 people. In the United Kingdom, it was a staggering 157.67 per 100,000 people.

The United States saw just 2.61 hate crimes per 100,000 people. That’s still far too many, but it paints a clear picture: hate speech laws don’t reduce violence against minorities, and might just create more of it.

5) The Idea That Legalizing Hate Speech Is Defending the Bad Guys

The fifth argument put forward by proponents of banning hate speech conceptualizes the fight against racism as a simplistic struggle in which you are either helping racists or hurting them. In this view, free speech isn’t the universal principle that Chomsky and Strossen describe. Rather, free speech is a tool that some groups of people use to gain power. Supporting the rights of X group thus entails supporting the group itself. Restricting their speech is a way to restrict the power of X group.

Noah Berlatsky summarizes this view in an article for NBC News calling for new hate speech laws, subtitled, “Maybe it’s time we stop defending Nazis.”

Going deeper on his “us versus them” conception of how law works, Berlatsky writes, “”Free speech!’ is a battle cry that has been picked up by neo-Nazis and white supremacists. They see First Amendment advocates as allies—and it’s not because they love freedom.”

In this view, if “neo-Nazis and white supremacists” see First Amendment advocates as allies, maybe it means there’s something wrong with the First Amendment. If a tool empowers our enemies, then we should reform or gut that tool.

Counterpoint to This Claim

This argument rejects the Enlightenment perspective of law as a universal principle. It rejects the idea that the law should treat everyone equally, and instead sees the law as a tool to empower or disempower certain groups.

Such an argument is deeply mistaken. Defending the free speech of neo-Nazis doesn’t just protect skinheads; it protects all of us, because that’s how freedoms work. If you empower censors to target your opponents, then soon those same censors will target your friends. That’s especially true in a republic, in which power changes hands on a regular basis.

When the ACLU defended the rights of Nazis to march, they protected that same freedom for future marginalized groups such as Black Lives Matter.

There Can Be No Free Speech Without the Freedom to Utter Hate Speech

The essence of the argument against hate speech laws is this: without legal hate speech, there can be no free speech.

Hate speech laws are subjective and are therefore employed at the discretion of those in power. In practice, hate speech is essentially saying things that those in power do not like.

China, for instance, recently made it a crime to mock the country’s heroes. The Chinese Communist Party routinely arrests people who criticize communism.

It’s not just China; governments always and everywhere use censorship as a tool to crack down on the types of speech they don’t like. Human rights activist and staunch liberal Glenn Greenwald published a lengthy article detailing how hate speech laws are used to punish progressives. After citing examples from a half-dozen countries, he notes that:

“This is how hate speech laws are used in virtually every country in which they exist: not only to punish the types of right-wing bigotry that many advocates believe will be suppressed, but also a wide range of views that many on the left believe should be permissible, if not outright accepted. Of course that’s true: Ultimately, what constitutes ‘hate speech’ will be decided by majorities, which means that it is minority views that are vulnerable to suppression.”

There can be no freedom of speech without the right to say what those in power do not want said.

Is Hate Speech Constitutionally Protected?

In the United States, the First Amendment clearly protects speech that some people deem hateful.

The Supreme Court has long considered free speech to be a bedrock American principle that can only be curtailed in very narrow cases. These cases include defamation, harassment, obscenity, fighting words, and true threats. The Court has wisely not interpreted the First Amendment to ban hate speech, for many of the reasons cited in this article, including that such a ban would be inherently subjective and morally wrong.

Of course, the question of whether X behavior is legal is a different question than whether it’s moral. Racist and sexual slurs are deeply immoral. But the Supreme Court has widely and consistently recognized that there are more effective ways to counteract hate speech than blunt laws.

If Hate Speech Laws Don’t Work, What Can We Do to Reduce Bigotry In Society?

There are two powerful ways to combat bigotry, which don’t rely on governmental force: counterspeech, and giving bigots enough rope to hang themselves.

Counterspeech—essentially calling out hateful speech when we see it, and producing powerful arguments against hateful ideas—is the best way to combat prejudice. Supreme Court justice Anthony Kennedy describes it well:

“The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”

Counterspeech is more effective than laws banning hate speech, because counterspeech offers the possibility of convincing people out of their bad ideas rather than simply threatening them into silence. As the United Nations puts it, “As the key means to counter hate speech, the United Nations supports more speech – not less – and holds the full respect of freedom of expression as the norm.” (emphasis in original)

As Lukianoff said in an email to me, “I don’t think even the most strident proponents of hate speech laws would argue that a highly tolerant culture, one that rejects racism, is more effective at impeding racism than a law imposed on an intolerant people.”

The second way to combat prejudice is to give bigots a microphone. Most Americans are decent people, and even supporters of white nationalists like Richard Spencer are quick to distance themselves once the speakers’ more odious views become known.

Hate Speech Is a Problem, But Hate Speech Laws Aren’t the Solution

Bigotry is a real problem in any large society, but hate speech laws aren’t the solution.

They drive prejudice underground and let it fester. There’s strong evidence that they may actually foster prejudice rather than reduce it.

Hate speech laws also represent unethical curtailments of our inalienable rights. No human is truly free who can be imprisoned for saying something the powers-that-be do not like.

What we need to combat hate speech is counterspeech and a culture of respect towards our fellow human, not enforced silence.


  • Julian is a former political op-ed writer and current nonprofit marketer. His work has been featured in FEE, National Review, Playboy, and Lawrence Reed's economics anthology Excuse Me, Professor.