In online liberal mag Salon, Phil Torres argues the United States ought to outlaw hate speech of the sort purveyed by disgraced alt-right superstar Milo Yiannapoulos:
[I]f the ultimate goal of public policy is to implement laws that maximize human flourishing, happiness and productivity, one can reasonably argue that certain forms of hate speech should not be free. Insofar as they cause genuine harm, they should be appropriately regulated. […] Just as we have laws that restrict individual liberty for the greater good — for example, the state imposes penalties for committing murder — so, too, should we have some limits on speech.
I see nothing wrong with efforts to make hate speech socially unacceptable. Social and commercial consequences are perfectly acceptable. Milo Yiannapoulos has the constitutional right to speak his mind, but he has no constitutional right to keynote CPAC or to a five-figure book deal with Simon & Schuster.
But I cannot abide the Torres’ notion that the United States ought to outlaw distasteful speech because of potential psychological harm. Such a formulation, I think, would be overly broad and would inevitably lead into government censorship of political speech. Why? Let’s take a look.
What Is Hate Speech?
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”— Through the Looking Glass
In November 2016, the phrase “fake news” referred to a very specific kind of Internet content: patently false news stories carried on noncredible “news” sites and given clickbaity headlines so they spread on social media. A recent Stanford study indicates their impact was overestimated, but they nevertheless fulfilled their function: put ad money in the pockets of Macedonian teenagers. We knew what “fake news” was. We’d read, for example, that Pope Francis had endorsed Donald Trump, and we’d all do our best Senator Vreenak impersonation:
OK, so we all agreed with what “fake news” was, right? Nope. Wait, what’s this?
OK, “fake news” now means the New York Times. And …
We have to add ABC, CBS, NBC, and CNN to the list. Anything else?
That’s right. Between November 3 and February 6—a span of about three months, President Trump and his team have redefined “fake news” as “anything Donald Trump doesn’t like.” This isn’t the only time the right wing has appropriated and redefined loaded phrases. Dig far enough into the right-wing swamp, and you’ll learn about “black privilege” and that opposing voter ID laws is racist.
In liberal circles, you know hate speech when you see it. Racial epithets and stereotypes. Harassment based on gender or sexuality. Insulting remarks about a person’s age or religion. That sort of thing. But the definition of “hate speech” really is up for grabs. Indeed, last year Louisiana amended its “hate crimes” law to cover not just crimes motivated by a victim’s “race, age, gender, religion, color, creed, disability, sexual orientation, national origin, or ancestry,” as Mother Jones put it, but also crimes motivated by somebody being a police officer.
Which brings us to this point: In Torres’ formulation, what constitutes “hate speech” would be defined by law—law passed by the federal government or state governments. And who’s in charge of the federal government right now? A political faction that redefines “fake news” as “any news we don’t like.” That appropriation and redefinition is noxious in the political and social sense. Now imagine if that appropriation and redefinition carried with it the force of law!
Certain Things Are Just Obscene
Torres’ formulation reminds me of the Hicklin test, a 19th century formula for determining what constitutes obscenity. Crafted by an English court in 1868, the Hicklin test deemed material obscene if the work, or any portion thereof had a “tendency … to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.
“Essentially, this test (which the US Supreme Court adopted in 1896) would deem a work obscene, and thus unprotected by the First Amendment, if that work or any part of it, could affect the minds of the most vulnerable—i.e., children. To put this in perspective, your average Stephen King story (replete with sexual themes) or bodice-ripping dime-store romance would be deemed obscene, and the US government (or states) could limit its distribution. Most unforgivably, the Hicklin standard would deprive us of this masterpiece:
Like America’s 19th century judges, Torres justifies outlawing hate speech because that speech could potentially harm the most vulnerable:
While Yiannopoulos has repeatedly argued that words are not weapons and thus cannot cause harm, many psychological studies show this to be empirically false. Children who are verbally bullied end up with psychiatric problems and even neurological abnormalities. Hostile workplace environments can cause “debilitating anxiety, panic attacks, clinical depression . . . and even post-traumatic stress,” according to the Workplace Bullying Institute. Chronic high levels of stress hormones can lead to a range of health problems, including cognitive impairment. Furthermore, psychological injury is often worse than physical injury because it’s more difficult to overcome. So, no, “fuck your feelings” is not an enlightened statement.
In essence, Torres argues that it should be illegal to utter certain words or engage in certain speech levels because those words could cause psychological harm in others. This is an incredibly broad standard. Not only would it expand existing bias-intimidation laws from acts to speech, but it would also broaden the standard of what, exactly, constitutes illegal speech. Beyond racial epithets and instances of overt racism and sexism, this standard potentially incorporates such things as repeating a broad stereotype about an ethnic group or incorporating disturbing imagery into a classroom. Indeed, a University of Pennsylvania student, without entering specifics, recently described a classroom experience thusly:
There were countless times that his [a college professor's] lack of acknowledgment of his privilege led to some of the trauma that I experienced in class. He would show images of slaves on plantations and even allow students to say ignorant comments in class. I remember having an intense conversation after class. I basically told him that what he was doing was traumatic to me, and as someone who has experienced a lot of racial trauma in his life, I would not allow him to continue. He then used the argument that, in order to make the class a “safe space,” he had to protect the voices of all students in the class.
Under current law, this student is free to protest his professor, give him negative reviews online, or convince other students not to take the professor’s classes. Under Torres’ standard, this anonymous UPenn professor would be in court.
Recognizing the Hicklin standard was too broad, US Supreme Court abandoned the Hicklin test for the more narrow Roth test (1957) and the even more narrow Miller standard (1972). Likewise, Torres’ broad Hicklin-esque standard ought not become the law of the United States. The Hicklin test outlawed major works of literature in the United States, and (honestly) did very little to eradicate the scourge of pornography. Similarly, I think Torres’ proposal would essentially outlaw broad swaths of speech and do little to prevent the spread of hate.
The Question of Blasphemy
My worries might seem a bit outlandish. Unfortunately, we have a real-world example of how hate-speech laws might work in practice: blasphemy laws. In 2014, Pew found that about one-quarter of nations outlaw blasphemy. A theocratic state will enact blasphemy laws to compel the proper reverence toward the official state religion, its doctrines, its sacred objects, and its holy personages. In a religiously pluralistic society, a blasphemy law can be a more general prohibition against impugning people’s religious beliefs. In theory, a blasphemy law protects religious individuals from persecution. In practice, blasphemy laws are used to persecute those who deviate from a state’s religion or to punish political speech. In its 2015 report on religious freedom, the US State Department’s Bureau of Democracy Human Rights, and Labor wrote:
In many other Islamic societies, societal passions associated with blasphemy – deadly enough in and of themselves – are abetted by a legal code that harshly penalizes blasphemy and apostasy. Such laws conflict with and undermine universally recognized human rights. All residents of countries where laws or social norms encourage the death penalty for blasphemy are vulnerable to attacks such as the one on Farkhunda [Malikzada, an Afghan citizen]. This is particularly true for those who have less power and are more vulnerable in those societies, like women, religious minorities, and the poor. False accusations, often lodged in pursuit of personal vendettas or for the personal gain of the accuser, are not uncommon. Mob violence as a result of such accusations is disturbingly common. In addition to the danger of mob violence engendered by blasphemy accusations, courts in many countries continued to hand down harsh sentences for blasphemy and apostasy, which were used to severely curtail the religious freedom of their residents.
If you care to read the report in full, it will outline for you many, many cases, especially from the Muslim world, in which a person faced persecution, or prosecution, for blasphemy. But this phenomenon is not limited to Muslim countries.
Consider, for example:
- In 2012, Indian skeptic Sanal Edamaruku, who made a name for himself as a leader in India’s skeptic community was arrested and tried for violating India’s laws about injuring religious sentiment because he demonstrated, on national TV, that “tears” running from a statue of the Virgin Mary were actually wastewater from a nearby washroom. He currently lives in Finland, afraid to return home.
- Raif Badawi, a Saudi Arabian atheist, criticized Islam, especially Saudi Arabia’s Wahabbi Islam online. He was sentenced for blasphemy, and he was sentenced to multiple lashings.
- In 2015, Poland’s Constitutional Tribunal upheld a blasphemy law violated by singed Doda. She was fined for saying that she believed “more in dinosaurs than in the Bible as it’s difficult to believe in something that was written by a guy wasted on wine, who smoked pot.”
We can probably differ on the value of some of these statements. But their general thrust is all similar—a person offered facts or opinion that ran counter to a majority view. The government, acting in the name of that injured majority, struck back at the person with the force of law.
India prosecuted Edamaruku under Section 295A of its Penal Code. This section reads:
Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
This language is remarkably similar to Torres proposal. Where India criminalizes the insult of a person’s religious feelings, Torres would outlaw speech that harms any person psychologically. Such a law, even if well-intentioned, will inevitably follow the same pattern as blasphemy laws—it will be used not to shield one group of weak individuals from harm, but as a cudgel to be deployed against those with contrarian views.
Speech And the American
In conclusion (he wrote to thunderous applause), I should note that even though Torres is hardly alone, he holds a distinctly minority position on speech. In fact, Pew found in 2015 that Americans in general are far more tolerant of offensive speech than people elsewhere in the world. But alongside the majority of Americans who support free speech, there has long been a significant chunk of the American public that would like to see one form or another of speech suppressed.
Nevertheless, I think it’s quite important to highlight and criticize proposals to limit the right to free speech, especially when one proposes censorship as an act of protection, rather than oppression. It’s useful to remember that such good intentions can quite easily be perverted into something quite dire.
As to another question—is free speech worth preserving? I think so. A relatively unfettered First Amendment protects the loathsome Milo Yiannapoulos from prosecution. But it also protects the rights of others to point out exactly what kind of person he is … and it protects the ability to critique society, government, and even religion. When you move to restrict speech—especially speech that has a political dimension—then you risk backsliding into a gentle tyranny.
James is a guest contributor to the BZ/MP. A former journalist and longtime lawyer, James provides insightful analysis of legal issues of the day to assist in the general understanding of high profile issues and questions with legal dimensions. (All opinions of our opinion writers and analysts do not reflect the position of BZ/MP or any person affiliated with BZ/MP other than the author themselves.)