The case against criminalization

I believe hate speech is wrong. But I don’t believe it should be criminalized. Allow me to explain.

The original argument, published by my colleague last week, claims that a recent rash of hate crimes in America is caused by the growing acceptance of hate speech. While that is certainly troublesome, it is not the source.

Hate speech is borne of hateful ideology, just as hate crimes can be borne of hate speech. The source itself is hateful sentiment, one cause of which can be hate speech. It is a generalization to say that the root of hate crimes is only hate speech because hate speech has its own source.

That being said, if we were to criminalize the actual root source of hate crimes, we would be criminalizing ideologies. To criminalize an ideological source would be to create an invasive, limited-speech system far beyond what I believe the original argument intends to promote.

A secondary problem with the original piece is an enormous confusion between the concepts of criminalization and de-platforming speech. It cites the Twitter ban on Alex Jones and Milo Yiannopoulos, saying that their loss of speech has contributed to a loss of social power.

Twitter is a private company. The corporation reserves the right to remove anyone from their platform who does not comply with their standards. Social media companies’ decisions to de-platform certain users is not an imposition on some perceived right to free speech.

De-platforming is simply taking away a space in which a person chooses to utilize their right to free speech; criminalization is enforcing legal retribution. The original argument makes an excellent case for the de-platforming of those who commit hate speech, but not for the actual criminalization of it.

Thirdly, a problem arises within the original argument’s definition of hate speech. The original argument describes hate speech as “racist,” “anti-Semitic,” “xenophobic,” “misogynistic” and “violent.” One of these descriptors is an outlier.

Legally, the word “violent” does not belong within this grouping. Speech considered violent — that which incites an imminent or clear and present danger — currently is not and has not been constitutionally protected since the 1967 Supreme Court case of Brandenburg v. Ohio.

Based on the other descriptors, I interpret that the original argument intends to portray hate speech as excessively discriminatory speech. Under that definition, hate speech, though some may choose to act violently upon coming into contact with it, is not in itself “violent.”

There is no justification for the criminalization of hate speech as it is defined in the original argument, but it does enlighten the vagueness of our current definitions of hate speech.

Hate speech does not have a definition under United States law. It is fair to say that, in its broadest form, hate speech is typically considered to be derogatory speech against groups that face discrimination. In order to truly define it, we still need to clarify the qualifications for both of those elements.

Derogatory speech, for example, spans a wide range. The inappropriate usage of a socially unaccepted word, though often hurtful, does not merit incarceration. It merits scolding, social backlash and peer education on proper vocabulary, but we cannot criminalize language solely for its emotional damage. We must also clarify “discriminated-against groups.” This task seems more difficult, as some protected groups have ideologies which can conflict with those of other protected groups.

Contrary to the sentiments of the original argument, free speech is crucial to the diminution of fascism. When exercised properly, it allows marginalized groups to speak truth to power. We must look at a historical context; if free speech were restricted heavily during the Jim Crow era, the Civil Rights Movement easily could have been condemned as hate speech toward Whites.

Without the possibility of a truly comprehensive definition of hate speech, we must uphold the right to free speech in order to continue the progress that it allows.