Photo illustration by John Lyman



Hate Speech is Complicated and Ugly

The older I get, the more complex reality can be. Recently, I reread something I wrote a few decades ago and realized how wrong I was because I saw things as more simple than they really were.

One thing I learned from maturing is in youth, we go about searching for truths to believe, but with age, we start to realize what “truths” we got wrong. Hate speech is one such issue.

When it comes to hate speech, complexity is ever-present. This means any column about the topic will overlook some important facts. You can’t do in a column what would take a book.

Hate speech is many things. It’s ugly, juvenile, vicious, false, and simplistic and may, under certain circumstances, be criminal in the sense of violating the rights of others and not just in violating laws. One thing is true—it’s complicated.

I remember going into a religious bookstore in Gauteng, South Africa, and finding books that were quite hateful of other groups. They didn’t like Mormons, gays, or anyone they felt was outside their own faith. That raises a question: Is this religious freedom, or is it hate speech? In fact, it can be both at the same time.

Ismail Joosub of the FW De Klerk Foundation noted that the Foundation, along with South Africa’s Democratic Alliance and the Institute of Race Relations, “raised concerns about potential infringement on specifically the freedom of expression enshrined in section 16 of the Constitution and other rights like religious rights. We view it as being overly restrictive and lacking in definition and having overly broad definitions that could potentially stifle legitimate democratic discourse.”

Drawing legal boundaries is often difficult. Take the age of consent laws, such as for drinking alcohol. If the law sets the age too low, it leads to exploitation and harm to children, but if it is set too high, it violates individual rights.

Sometimes, where the law must draw a boundary, there is no clear line of demarcation. Laws can’t take into account the facts in a case because legislators simply cannot know them in advance. This is one of the reasons central economic planning is a fantasy at best.

The United States has pretty strong laws defending freedom of speech but also draws a line around speech when it offers a “clear and present danger” to the rights of another person. It takes more than being offensive for a criminal sanction to be applied. The law school at Cornell University explained it: “The clear and present danger test features two independent conditions: first, the speech must impose a threat that a substantive evil might follow, and second, the threat is a real, imminent threat. The court had to identify and quantify both the nature of the threatened evil and the imminence of the perceived danger.”

Telling a rabid mob that they should riot and loot is not protected speech any more than a group of radicals talking about plans for a terrorist attack. They can be arrested just for planning the crime. Plenty of speech is criminal, so the boundary is not merely whether something is speech but whether it comes with clear danger and an imminent threat to others.

A frothing preacher in the pulpit screaming about how LGBT individuals are “Satan’s spawn” would be protected. The same preacher on a public street with his congregation telling them, “There’s one of them, God says such people are worthy of death, get ‘em,” is quite another—especially if the actual result is death.

Hate speech such is sometimes criminal and sometimes not, depending on how likely it is to lead to actual attacks on individuals. That is not something legislators are particularly good at determining, which is why under “clear and present” tests, it is left in the hands of the courts, where the particulars of the individual case can be investigated in ways legislation can’t.

What you can do as an individual is often more than a proper government can do.

For instance, if you own a publication or website, it is your right to determine content. You can ban individuals who spew hate on your site in ways a liberal government would be forbidden to do. You have no obligation to use your resources to the benefit of hate groups.

You are also free to ridicule or rebut such hate. Oddly, I have seen preachers of hate turn into fragile snowflakes when they themselves are rebutted or ridiculed. On one hand, they preach killing others and then turn around and whine any attack on their views is “persecution.”

In the end, the best way to fight hate speech is often done privately—not by the state.