Self-admittedly, I am prattling on about hate speech laws in Canada. Although, additional reflection and further conversations on the topic illuminate new approaches and ways for which to argue for freedom of offensive and hateful speech.
Laws which aim to restrict our ability to speak openly on any subject harm us at our very core. Not just as the speaker, however, but as the potential audience. A law that designed to tell us as rational, free, and adult people that our sensitivities may be harmed if certain words are spoken is at a minimum condescending and, more likely, infantilizing. This law tells me there are ideas held by others which may be offensive to the point of me experiencing discomfort. A set of guidelines notifying me there are pictures so obscene to me that the only recourse is punitive justice.
While at university at the University of British Columbia, I was made aware of this law existence thanks to a local student feminist group. At the time, I agreed with many of their aims and goals, but was not comfortable agreeing with them on the utility and necessity of using laws to punish people who say rude, offensive, or obscene things to a generalized group. After all, the use of the hard line rhetoric used by student groups dances closely to the edge of falling victim to such a law, a fact which I was never able to impart.
Support of a law simply because it is a law is both foolish and immoral. There have been many laws in the Western world which have been evidently immoral. Take, for example, laws which have clearly stated marriage as being between one man and one woman. Or laws which prohibited the marriage between a black and a white. These were laws; were we, as the lowly citizens in a democracy, supposed to accept them as laws, despite the obvious prejudice and despicable nature? There is disconnect here of those who lack the ability to discern morality from law; a law does not define morality, but morality must inform laws. It was those who operated from this premise that became successful in the fight for marriage equality.
Curtailing speech on the grounds of it being perceived as offensive is no different. It is at this point where people who support free speech falter when it most counts. Offensive speech is not in inherently hateful nor pointless. In most instances, it is the speech which must be most protected. An example of this would be Austria's Holocaust speech laws, which present a mostly inaccurate account of the Holocaust as the only official history and disagreement or dissent is viewed as hate speech, resulting in imprisonment. The law, while recognizing the Holocaust, obfuscates the truth, ceding power to the state to dictate a false history.
In the United States, the approach to assessing free speech from that of other speech offensives (e.g., liable or insider trading) is that of view point neutrality. Take, for example, the Klu Klux Klan marching down streets to show support for the Confederate Flag. The speech, which is hateful, is protected by law, as the majority view on what is good, sensible, or proper has no influence on what can or cannot be said. To block the KKK from speaking or showing signs, the state would deprive those within that community of knowing the size and composition of a racist, evangelical organization. View point neutrality ensures those with dissenting or unpopular views are not discriminated against.
Now, this is an important concept to understand: while the easy majority of individuals look down on the views and beliefs of the KKK, there once was a time when the KKK's views were held by the majority, and it was the views of the Civil Rights pioneers. While today we would call it a stretch to claim "all men are equal" as hate speech against the white majority, history in context would tell us otherwise (look, for example, at modern day preachers who claim they are discriminated against because same-sex marriage is allowed). Without view point neutrality, courts could have issued warrants against members in the Civil Rights movement for disturbing the peace because of their speech and the effects of it.
If one can argue that the speech of the KKK must be silenced because it is heinous, harmful, and retards an inclusive society, then he must also be willing to accept that he is arguing against the voices of the minority on what may be viewed as a contentious issue in the modern context. We were brave in fighting for same-sex marriage, but will we silence those who now argue for legal polygamy/polyandry? I would hope not; rather, we ought to listen to their arguments (which are nearly identical to those used by same-sex marriage proponents, something Justice Roberts clearly pointed out) and judge them on their merits and not on their popularity. Hitchens said it best when he said ,"Do not take comfort in the false consensus of the majority."
The law tells us what is moral (i.e., being offensive and hateful is worthy of punishment, thus is not moral) without being able to justify its position. It is unable to do so because of the subjective nature of what can be defined as hateful. Well, there is a law that says there is some speech which is hateful after all--but we run into the same problem: because there is a law that says some speech is hateful, does that truly mean there can be some speech which is inherently hateful, regardless of context? And hateful to the point of inciting hatred against others? No, there is no such power vested in any law.
Morals imposed through law is a fool's errand. There is no way to ensure people will act civil and 'proper' simply because there are laws, codes, or policies which demand it. Most people see the value in being polite, respectful, and tactful in their daily lives, while others choose the freedom to express themselves as they wish and are comfortable with the consequences of doing so. Freedom of speech allows for both paths and places no moral judgement on either choice. A hate speech prohibition might seem like a positive step to ensure safe spaces or a more polite society, but enforcing such a law will undermine the view point neutrality while passing a moral judgement on what the state deems to be offensive.
Moreover, hate speech laws would not be applied equally. If the citizenry held a specific disdain for a particular group which the governing bodies also shared, even hateful speech which incites violence would be allowed (e.g., Muslim protests in Pakistan following the publishing of the Danish cartoons caricaturing the prophet Mohammad). Further problems arise when you have individuals representing a movement using divisive and hateful language as part of their rhetoric, as is the case of the Black Lives Matter movement. One such 'spokesperson' for BLM lamented that she had to push through "a crowd of white racists", relegating all persons of Caucasian decent to being inherently racist. In a land where hate speech laws exist and freedom of speech does not protect minority voices, this protester--and likely anyone associated with her on that day--would be charged with hate speech crimes.
The BLM example is probably the clearest there is when it comes to understanding why freedom of speech is vital to social and civil development. Not all elements of the BLM movement are as heinous as the example above, but all those who associate with the movement would be targets of hate speech laws if there were any in the United States. Not because of white supremacy, but simply because of how such a law can be wielded capriciously by those in power who disagree.
In the end, freedom of speech is what protects minority voices more than any series or prohibitions on speech ever could. While a prohibition or law may seem well intended, it will eventually be used as a means of shutting down the very people the law was intended to protect. The only guarantee of protection comes from the freedom to say what we want and to engage in the discussion that comes from an open environment. Not only a discussion to clarify statements, but to further develop ideas and challenge ourselves to better understand and justify what we believe. Freedom of speech must be protected in its entirety without any erosion in the form of codes, policies, or hate speech laws in order grow as a society--the death of free speech is the end of a free society.
This has been an unedited rant. @nrokchi
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