Some more thoughts on hate speech...

Kenan Malik has been kind enough to reply to the points I raised in my previous blog. You can find his reply here and his original comments here. 

My original blog was written (in haste) to clarify to myself some of my thoughts about Malik's views. This blog is intended to serve a similar purpose, so again what follows will be a loose collection of points rather than a carefully constructed set of arguments. 

1. Malik describes my argument (such as it is) as follows: "Carey’s argument seems to be that any speech or text that may cause someone to commit a violent act or to perpetrate some form of harm at some time in the future should be banned."

This is not something I want to argue for. In the paragraph Malik is responding to, I argue that there is no significant distinction between "imminent" and "non-imminent" danger. That is to say, the fact that some particular danger is "non-imminent" is not a reason against prohibiting it. 

There are, of course, many things that we should consider and which can make a difference when we are considering whether to prohibiting something dangerous. For example, we should consider the harms that prohibition might cause - sometimes it can be even more dangerous to prohibit something that is dangerous, than to permit it. We should also consider whether prohibition would involve violating a person's rights. Malik asks whether my view implies that we ought to ban the Bible or the Qur'an, but it seems clear that to do so would involve the violation of people's right to religious freedom (and probably other rights as well), and that it would probably cause more harm than good.

So, I agree with Malik that such books should not be banned. It seems clear, however, that the reasons we have for not banning them have nothing to do with the fact that they can pose a non-imminent threat.

Having thought about it, however, there does seem to me to be one way in which "non-imminence" matters: the farther the distance in time between a cause and effect, the more difficult it can be to see and to predict the causal connections between the two. Sometimes there may be causes which we had no reasonable way of predicting would be harmful causes, and effects that we had no reasonable way of predicting would be harmful effects. 

This is one reason why intent matters when it comes to hate speech laws. If the intent of utterance or publication in question is clearly to incite hatred, then that makes it a lot easier to predict what the effect will be (though a mere intent to incite hatred cannot be sufficient and, to the best of my knowledge, is not, when it comes to typical hate speech laws). 

Malik anticipates that I might say something like this. He says: 

"It won’t do, incidentally, to suggest that many of these texts or speeches are not intended to cause danger or do harm. What seems important to Carey’s argument is the fact of speech causing harm or danger."

It is true that an intent to incite hatred isn't necessary to produce something that could incite hatred, just as an intent to incite violence isn't necessary to incite violence. But my argument is not that we should prohibit something merely if it is dangerous. As I suggested above, we can have all sorts of reasons for allowing dangerous things. My argument thus far is that whether a particular danger poses an imminent or non-imminent threat is not really relevant when assessing whether we ought to prohibit it. 

Malik then raises the point that "Those who want to expand incitement laws to challenge racism all too often find that it is minorities and activists that are often targeted." This looks like an objection to anti-hate speech laws in practice rather than in principle, and to the behavior of the British government in particular. I am very sympathetic to the worry that allowing states to define and enforce hate speech carries with it risks that they will use that power to oppress minorities rather than to protect them. I am willing to concede, therefore, that some governments may be so bad at enforcing hate speech laws that it would be better not to have them. However, I don't regard that as a necessary consequence of hate speech laws in principle. Consider, for example, laws against incitement to violence, which Malik and I both support. We can easily imagine a state abusing these laws as well: a group of peaceful protesters might be violently dispersed via spurious appeals to such laws, for instance. This, on its own, is surely not sufficient as an argument against incitement to violence laws, so we shouldn't think it's sufficient in the context of incitement to hatred laws.

2. Malik claims: "In inciting an act of violence, one plays a direct role in that act. In inciting hatred, one is expressing an idea or belief. That distinction is not modest but crucial."

Malik says that this distinction is crucial, but it is not clear to me. One can incite violence by expressing an idea or a belief. For example, suppose a man stands outside his neighbour's house and tells passersby of his belief that his neighbour is a dangerous paedophile who should be killed. As a result, an angry mob forms and attacks the neighbour's house This, I would hope, counts as incitement to violence on any plausible view, yet the speaker is "only" expressing a set of beliefs that he has. He is playing a direct role in the violence, because the beliefs he expresses are intended to bring harm to his neighbour. 

People who intend to incite hatred seem to me to have similar if not identical intentions. They express their ideas or beliefs in the hope that other people will come to hold these ideas of beliefs. The kinds of ideas and beliefs in question are precisely those which would (be likely to) lead to harm being inflicted on others.

3. Malik asks: "What evidence is there to suggest that it is ‘implausible to think that we cannot reduce or eliminate bigotry if we prohibit hate speech’? Carey provides none.

I provided none, because it seemed self-evident to me (but then, I sometimes have strange intuitions).

[I wonder whether Malik has misread me here, however: he may have read the above as suggesting that we need hate speech prohibitions to tackle bigotry, rather than the claim that tackling bigotry doesn't require us to permit hate speech]

Most obviously, in my view, the fact that there seems to be less bigotry today in many countries than there was in the past, even though those countries have laws against hate speech, counts as evidence that we can fight bigotry while prohibiting hate speech. If the two were mutually exclusive, then we should expect to see no reduction of bigotry in countries that prohibit hate speech, but that is not what we see. (Or at least, it is not what I see)

Secondly, not all expressions of bigotry count as hate speech. If it is necessary to be allowed to express bigotry in order to challenge it (which I suspect is what Malik has in mind) then most bigotry can still be expressed even if we prohibit hate speech. A conservative anti-hate speech law would only tend to prohibit the most extreme forms of bigotry - the sort that we are not likely to be able to change anyway. 

Malik goes on to argue that "hate speech restrictions do not reduce bigotry but merely ‘privatise’ it. The consequence, as the journalist Paul Mason has put it, is to ‘put anti-racists into a false comfort zone, where it feels like the basic arguments against prejudice no longer need to be put’ while also ‘feed[ing] the politics of the far right with the thrill of a shared defiance that all subcultures generate."

I concede that all of these are very real and important downsides to prohibiting hate speech. However, my intuition is that these potential costs are probably worth the price. Victims of hate speech can benefit if hate speech is "driven underground", even if it means that those ideas are harder to eliminate among those who share them. Some members of targeted groups simply do not wish to experience such speech in the public sphere, where possible. Providing a kind of "quarantine" effect for hate speech may well not serve to eliminate it, but as I argued previously, the point of hate speech laws is to protect people from hate. 

I don't believe we are entitled to the assumption (which goes back at least as far as Mill's defense of free speech) that if exposed to enough public scrutiny, extremely bigoted views will be defeated. In practice, this doesn't seem to happen very often, even in jurisdictions which have few if any restrictions on hate speech.

Malik (having pointed out that non-inflammatory language among politicians is often far more harmful than the odd bigot saying something crazy in a newspaper article) asks: "So should we ban the mainstream politicians’ immigration rhetoric? Or should we just ban those who use inflammatory rhetoric and ignore those who are more sober in their presentation but also bear more responsibility for creating an anti-immigrant mood? Or, should we, as I believe, ban neither, but rather challenge the anti-immigrant ideas, in particular of mainstream politicians, instead of taking the easy option of making a moral gesture by banning hateful rhetoric?"

Malik is right, of course, that non-hateful speech is in practice far more harmful than the kinds of utterances prohibited by hate speech laws. One reason they are so effective is precisely because they disguise (intentionally or otherwise) the truly harmful ramifications of the views being expressed. It is more difficult to prohibit hate speech when it is more difficult to recognize something as hate speech. These utterances may also sometimes cover views on which there may be what Rawlsians call "reasonable disagreement", at least as far as the general public is concerned.

In contrast, the kinds of utterances prohibited by hate speech laws tend to be obviously hateful in a way that politicians' rhetoric does not (with a few notable exceptions). There is a sense in which such laws represent a kind of lowest common denominator of public opinion, by prohibiting the kinds of expressions which are uncontroversially hateful. That is certainly not an ideal state of affairs, but it doesn't follow that we ought not prohibit one form of harm simply because it would be too difficult to prohibit another. 

4. "Incitement to hatred is the encouragement of others to hold certain ideas or beliefs, or to have certain feelings, that might be described as hateful. It is not incitement to commit a specific act. Incitement to violence is incitement to commit a specific act."

I don't find this distinction convincing. There are some beliefs which are hateful and which entail that one ought to commit a specific act. Indeed, any act of violence perpetrated by an agent must have been motivated in part by the beliefs of the agent in question. If I encourage you to believe that your neighbour is gay and that gay people should be killed, it looks like I have incited both hatred and violence. Furthermore, it is not clear why incitement of a specific act necessarily matters here.  Suppose that I encourage you to believe that gay people should be killed, but I don't tell you to kill any gay person in particular. Am I not (partly) to blame if you go on to kill someone because they are gay because you have been motivated by the beliefs that I encouraged you to have?

5. "The difference between us is not that one recognizes the ‘long-term structural harms’ of bigotry and the other does not. The debate, rather, is about how we should tackle bigotry. It is because I recognize the social rootedness of hatred that I recognize, too, that hate speech bans cannot tackle such hate but often makes matters worse both by putting anti-racists into a ‘false comfort zone’, in Paul Mason’s words, and by creating a backlash among those who feel unfairly silenced."

I agree with most of this, except (obviously) I don't think prohibitions on hate speech make things worse. 

My original point, which could have been clearer, is that Malik's view is extremely limited in terms of the kinds of harms that he is willing to prevent via the law. Obviously he wants us to tackle bigotry in other ways (as do I) but he limits legal intervention to only those cases involving imminent threats of violence. 

However, allowing hate speech is only a good thing, as far as I can see, if that is the most effective way to protect against the harmful effects that bigotry causes. So, for example, if the best way to stamp out bigotry is to challenge it in public, and if that requires permitting hate speech, then that would obviously be a justification for permitting it. 

In practice, though, this just doesn't seem to be what actually happens. There are many forms of bigotry which are not (and ought not to be) covered by hate speech laws, which are challenged loudly and often and even these persist today. Given that hate speech laws tend to prohibit extreme bigotry, I am not optimistic enough to think that these kinds of beliefs can be defeated via public debate.

It is, at the very least, an open question as to whether hate speech thrives or withers if permitted in public. My intuition is that there is something so toxic about hate speech that it often succeeds in poisoning public discourse whenever it is allowed to flourish.