I wholeheartedly support the goals that prompt calls to censor “hate speech”: equality, dignity, diversity, inclusivity and societal harmony. But along with many human rights advocates in the U.S. and abroad, I oppose such censorship as at best ineffective and at worst counterproductive.
Three points support that conclusion. Free speech principles already let government restrict the most dangerous hate speech, while barring the restrictions most dangerous to democracy. Censorship beyond those principles does not advance its aims. And non-censorial strategies work better.
Current law already permits restricting the most dangerous hate speech
Censorship advocates too often assume the First Amendment categorically protects all hate speech. Not so. The Supreme Court long has permitted government to restrict any speech that directly causes or imminently threatens specific, serious harm. The Court has recognized several such unprotected categories, which cover much hate speech, including intentional incitement of imminent violence and targeted threats and harassment.
Government may also increase penalties for hate crimes: assault, vandalism and other illegal conduct targeting victims for discriminatory reasons. Because such intent is typically proved through hate speech, this is another vehicle for punishing expression tightly linked to demonstrable harm.
What government may not do is restrict speech solely due to disfavor or speculative fear of its content. However unpopular an idea — and however adverse its emotional impact — that does not justify stripping “We the People” of our equal right to decide which ideas to voice or heed. Hate speech typically addresses matters of public concern; the Supreme Court has explained that such speech is “more than self-expression; it is the essence of self-government.”
In short, the real question is not whether government may restrict hate speech; it is whether government should restrict hate speech that is not directly linked to demonstrable harm. Restrictions on such constitutionally protected speech constitute “censorship” — currently illegal, and rightly so. Here is why.
Censoring protected hate speech does not deliver equality
There is not even a correlation between censoring hate speech and advancing equality, let alone a causal relationship. Worldwide, hate speech laws have accompanied rising hateful rhetoric and hate crimes; their absence has accompanied falling intolerance and violence. In Europe — where hate speech is criminalized across the member states — the European Parliament’s research service reports that “over the last 20 years, there has been a marked increase in hate speech and hate crime.” Logic explains why.
No censorship regime can eliminate hate speech. No government, however authoritarian, has wholly silenced targeted speech. Nor can tech titans. Internal Facebook research concluded that “we may action as little as three to 5% of hate … despite being the best in the world at it.”
For the residue of hate speech that inevitably survives censorship, three outcomes are possible, none helpful to equality. Some speech is driven underground, where opponents cannot change minds and police cannot track planned violence. Some is camouflaged in subtler language, more pernicious because it attracts more people than the cruder expression the law reaches. And some hatemongers openly defy the law because prosecution amplifies their message — the “forbidden fruits” phenomenon. Censorship also convinces speakers and followers that they are persecuted truth-tellers whom government silences because it cannot refute.
Graver still, hate speech censorship disproportionately silences minority voices. The European Commission against Racism and Intolerance has warned that such restrictions “can be unjustifiably [used] to silence minorities and to suppress criticism, political opposition and religious beliefs.” The global free speech organization, ARTICLE 19, documents the same pattern.
That pattern reflects the inescapable subjectivity of “hate.” The very same expression may be viewed by one person as hateful and by another as the opposite. For example, many celebrate Black Lives Matter advocacy as anti-hate, while powerful leaders condemn it as hate speech against white people and police. President Donald Trump called a planned BLM mural a “symbol of hate,” and El Paso’s police chief called BLM a “radical hate group.” Censorship thus vests enormous discretion in enforcing authorities, who predictably wield it to promote their own values and those of powerful constituencies.
Non-censorial measures are more effective
Since much hate speech will circulate despite the most vigorous censorship, we need alternatives. Just as words are symbolic, so is the censorship that targets them, not the real problems: discriminatory actions and attitudes. Both actual problems are better addressed by other measures, including vigorously enforced laws against discrimination and hate crimes, and counterspeech.
The European Commission Against Racism and Intolerance has concluded that counterspeech is “much more likely [than criminal sanctions] to prove effective” in eradicating racism and intolerance. Counterspeech also has empirical support.
The choice is not between fighting hate and protecting speech. Censorship treats the symptoms of a disease while ignoring its causes, and perhaps even spreading it. Free speech, backed by laws against discriminatory conduct, confronts the disease itself.
