Book Review: What is to be done about hate speech?
13 October 2014
Michael Herz and Peter Molnar (eds.), The Content and Context of Hate Speech Rethinking Regulation and Responses, Cambridge University Press, 2012.
The 'context' of anti-Gypsyism, and the connections between hateful words and heinous deeds pose profound and troubling questions for champions of free speech and opponents of content-based bans.
When it comes to the issue of what is to be done and left undone about hate speech, I've long been torn between visceral reactions against the kind of intolerant speech that disparages, denigrates or intimidates any group of my fellow citizens on the one hand; and on the other, a more gradually acquired, but no less profound, commitment to freedom of expression as a fundamental prerequisite to any notion of what constitutes an open society in a functioning liberal-democratic state.
This stimulating collection of interviews and essays edited by Herz and Molnar provides a singularly comprehensive rethink on responses to the content and context of hate speech. As Miklos Haraszti states in the foreword, all protagonists in the free speech saga will learn a lot about themselves, and will learn that the saga continues:
"Journalists who hate holding back their opinions, politicians who hate journalists for having opinions; extremists who love hating; scholars and students who love the issue of hate for being so illustrative of the dilemmas of regulating speech; and my lot, the free speech defenders - all will find splendid reading and a very usable book in their hands."
It's hard to imagine knucklehead extremists 'who love hating' eagerly poring over this book, muttering 'splendid, splendid' all the while, but there is no doubt that this collection deserves the widest possible audience. It is essential reading for all who cherish liberty, champion equality, and yet differ profoundly about how best to deepen the democratic revolution, and defend it against those who love to hate.
Across the spectrum, Haraszti sees an emerging trend, whereby the 'minimalists' (those who oppose any legal restrictions on free speech, apart from actual instigations to actual hate crimes) seem to be losing ground to the 'regulationists' under a growing punitive trend that is introducing new speech bans into national criminal codes.
From the ‘regulationist’ corner, Jeremy Waldron states that the question must be about the direct targets of abuse, the harm that expressions of racial hatred do to the groups who are denounced or bestialized in pamphlets, billboards, talk radio, and blogs: “Can their lives be lead, can their children be brought up, can their hopes be maintained and their worst fears dispelled, in a social environment polluted by these materials?”
Along these lines, Bhikhu Parekh calls for the prohibition of speech which is judged to have ‘long-term effects’ on a targeted group. To define hate speech as only that which will lead to imminent public disorder, and to proscribe it only when it is likely to do so, is a category error according to Parekh, because
"what matters is its content – what it says about an individual or a group – and its long term effect on that group and the wider society, rather than its immediate consequences in terms of public disorder."
In short, Parekh and others who argue for banning hate speech, maintain that such aggression strikes at the root of the shared communal life, lowers the tone of public discourse, subjects groups of people to harassment, damages their sense of dignity, and inhibits their life chances.
Context clearly matters and the 'context' of anti-Gypsyism in Central and Eastern Europe surfaces frequently in this collection. In terms of context, the torrent of disparaging, discriminatory and hateful speech targeting Roma fosters and sustains a broad consensus that 'Gypsies get what they deserve.’
Beyond the hard core of haters, as Parekh suggests, such speech contaminates the public sphere in a manner that inhibits any sense of solidarity or empathy; and the cumulative effect is that majority populations fail (or feel emboldened to refuse) to recognize discriminatory treatment of Roma and other minority groups for what it is - unreconstructed racism.
However, ranged against the ‘regulationists’ in this collection of essays, there is a cluster of compelling arguments that suggest, whatever the context, an emphasis on reactive prohibitions or prior restraint is misplaced: that the practical impact of imposing restrictions on freedom of expression to defend or advance the rights of Roma or any other minorities is disputable; that restrictions on freedom of expression enacted under cover of containing hate speech actually allow those who wield power greater leeway to suppress dissenting voices by codifying them as hateful.
From the opposing ‘minimalist’ corner, Kenan Malik asserts that when it comes to what people can and cannot say, we must distinguish between content-based regulation and effects-based regulation and permit the prohi-bition only of speech that creates imminent danger. Malik opposes content bans, both as a matter of principle (‘free speech for everyone except bigots is not free speech at all’) and with a mind to the practical impact of such bans.
Additionally there is, as more than one author has noted, something of a conundrum in Central and Eastern Europe in that those who call for more restriction, more banning of hate speech against Roma, are in fact calling for more discretionary powers to be handed to states and societies they hold to be inherently racist and discriminatory.
Who would sensibly advocate ceding even more powers to the regime in Hungary, where the political capture of key institutions and parallel weakening of checks and balances prompted the Council of Europe to contemplate launching its first monitoring procedure against an EU Member State; where the Fourth Amendment to the Fundamental Law of Hungary states that the right to freedom of speech “may not be exercised with the aim of violating the dignity of the Hungarian nation”; and where the Prime Minister openly boasts of his intent to forge an ‘illiberal democracy’?
Theodore Shaw’s concerns about how a ban on hate speech would operate and be applied in practice, comes with a passionate defence of freedom of expression:
“I can’t imagine the Civil Rights Movement of the 1960s, or the gay rights movement of more recent years, or the women’s rights movement, or any movement being possible without free speech. Free speech is essential for minority group members who are challenging systems of subordination, segregation, discrimination, particularly if they are attacking the complicity of government in creating and maintaining those systems of subordination. If we lose the rights to free speech, the ground on which we stand with respect to other civil and human rights becomes quicksand ….”
With regards to hate speech, Shaw’s is the classic response that the most effective antidote is more speech, and that counter-speech works best when it’s not only the targeted minority that speaks up. He cautions against focus-ing on hate speech legislation without remedying or reducing the discrimina-tion and hatred itself. Turning to the specifics of Central and Eastern Europe, Shaw says:
“So in the context of Roma, for example, I would prefer to see a focus on protecting Roma from violence that is directed at them, whether by individuals or by state actors such as the police. I would prefer to see housing discrimination and employment discrimination and education discrimination attacked.”
Fittingly, in these times where hate’s harvest remains bountiful, where too often minorities are denigrated and dehumanised with seeming impunity, the book offers no definitive conclusions, for as Haraszti put it, ‘the saga continues.’ The contexts and the content may vary, but addressing the hurt and harm done to those directly targeted must remain at the heart of any effective strategy to counter both the words and deeds of those ‘who love to hate.’
