The case for hate speech

[DBT]

Nobody should suffer in silence under freedom of speech. The idea is to offer an energetic rebuttal to hate mongering.

 

[Togo]

I don't think so. What constitutes "violence" and "incitement" is just as susceptible to a lack of an objective line.

How does that support your case? Lack of objectivity in what speech is doing can only be an argument against any laws restricting speech based upon what subjective category it belongs to (which is what hate-speech laws are).

No, they aren't. This may be where the confusion is arising. Most hate speech laws that I'm familiar with are essentially laws against verbal assault, or laws against openly planning or organising criminal activity against a class of person (rather than the usual criminal standard of a particular person). They are not, despite the name, supposed to be laws against particular forms of speech.

As a practical baseline, if someone is following you around 24/7 continually shouting abuse at you, and anyone who tries to interact with you, such that you can't actually get away from them, at some point there needs to be a legal remedy. Harassment only works if it's the same individual each time, or a legally identifiable organisation. Assault the same, plus it only works if you can demonstrate fear of physical harm and intention to cause same. So how exactly do you stop people doing that to you, in practical terms? On the same note, if a policeman stumbles across people organising a lynch mob, it's useful if he doesn't have to wait until a frenzied mob actually breaks down someone's door before arresting them. It's useful if he can act before that point, and take some action against the organisers and instigators.

I have a lot of sympathy with your position. But then, they're not going to come after me, so I can afford to ignore the immediate effects and look to the longer term. In the long term the best way to convince people to your side is to publically suffer manifest injustice for as long as possible while being noble about it. But that's an indulgence that many can't afford - what Wittgenstein referred to as the 'heroic masochism of the privileged class.' - people bravely taking on risks knowing that their social position will shield them from many of the consequences. For those who actually have people following them around hurling abuse at them and trying to thwart every social interaction, there is a problem, and there needs to be a solution to that problem. Since you're rejecting one solution, which is a ban on threatening behaviour and language, or orchestration of same, what are you proposing as a replacement?

Let's take an historical example. A fairly large group of local residents know the route an 8-year old child takes to school, so they show up with banners, dummies with nooses around their necks, knives, bottles and bricks. And they shout abuse, including graphic descriptions of violent and violently sexual acts, at the child from a distance of about 18 inches (40 cm). They let off firecrackers to make it sound like they're being shot at (in an area where children have been shot before). They show up again after school, to follow the little girl around until she gets home. Are the child's freedoms being restrained here?

In contrast, their is a very clear distinction between committing actual violence and inciting it, since the former required physical actions and physical causality while the latter is purely psychological causality presumed under highly suspect psychological theories to impact the actions of other people.

Except that almost all crimes of physical violence require the demonstration of an intent to cause harm. So while you're making a valid distinction in theory, in practice existing laws all have the psychological component you're trying to avoid.

 

[Jarhyn]

A lot of conservatives tend to get this issue confused due, I think, in part, to the inability to process
Nuanced differences between being denied a platform or traction of ideas by persons/getting social reprisals and being punished by a formal legal body.

Another problem is that such persons also generally fail to understand the difference between speech and action. Money is a token of deferred privilege of commissioning action. So spending money is taking action, based on the core pronciples by which money operates in our society.

Freedom of speech is, optimally, the freedom to speak, not the freedom to be heard or listened to or even acknowledged. It is not the freedom to remain unchallenged by one's peers, nor is it the freedom to take action as obfuscated by the money layer. It is not the freedom to have a popular vote on any issue you want (votes are taking an ACTION). It is not the freedom to deny others the power to make informed decision (so it is not the freedom to lie knowingly about material facts). It is only and exactly the freedom to voice an opinion, Hypothesis, sentiment or question in regards to any arbitrary subject without having police harass you over it in any official capacity.

 

[ronburgundy]

How does that support your case? Lack of objectivity in what speech is doing can only be an argument against any laws restricting speech based upon what subjective category it belongs to (which is what hate-speech laws are).

No, they aren't. This may be where the confusion is arising. Most hate speech laws that I'm familiar with are essentially laws against verbal assault, or laws against openly planning or organising criminal activity against a class of person (rather than the usual criminal standard of a particular person). They are not, despite the name, supposed to be laws against particular forms of speech.

And this highlighted portion is where all the subjectivity and unreliability comes in, since "verbal assault" has no objective features and could easily included criticism of a person's ideas. In fact, hate speech laws do ban criticizing ideas, since that is what it means to criticize a religion.

Here is a definition of Hate Speech from USLegal.com : [P]"It is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women."[/P]

Note the highlighted parts showing that violence is not central to the concept, mere "hate" which in nothing but a negative emotion reflecting a personal opinion about something, which makes sense since that is why it is called hate-speech and not violence-speech.

As a practical baseline, if someone is following you around 24/7 continually shouting abuse at you, and anyone who tries to interact with you, such that you can't actually get away from them, at some point there needs to be a legal remedy. Harassment only works if it's the same individual each time, or a legally identifiable organisation. Assault the same, plus it only works if you can demonstrate fear of physical harm and intention to cause same. So how exactly do you stop people doing that to you, in practical terms? On the same note, if a policeman stumbles across people organising a lynch mob, it's useful if he doesn't have to wait until a frenzied mob actually breaks down someone's door before arresting them. It's useful if he can act before that point, and take some action against the organisers and instigators.

Let's take an historical example. A fairly large group of local residents know the route an 8-year old child takes to school, so they show up with banners, dummies with nooses around their necks, knives, bottles and bricks. And they shout abuse, including graphic descriptions of violent and violently sexual acts, at the child from a distance of about 18 inches (40 cm). They let off firecrackers to make it sound like they're being shot at (in an area where children have been shot before). They show up again after school, to follow the little girl around until she gets home. Are the child's freedoms being restrained here?

Sorry, but that is not merely hate speech. That is chronic harassment and clear threats of violence directed against a specific individual. Hate speech does not require any one of those elements. It can be merely words spoken one time that are presumed to promote a strong negative opinion about a ill-defined social group. That is the whole point of hate speech laws. Existing harassment laws could be easily modified to prosecute the kind of targeted and threatening harassment of your example. Hate speech laws are created to prosecute things that cannot plausibly be considered direct threats, harassment, or intentionally trying to incite other to commit violence. They are laws created to prosecute speech, not acts, and not even speech intended to cause acts. They exist to make it illegal to voice negative opinions about groups or even opinions about things associated with groups, such as their ideas and beliefs. The name "hate-speech" is not a misnomer. IT directly and accurately refers to what is being made illegal, which is speech that conveys the emotion of hate.

In contrast, their is a very clear distinction between committing actual violence and inciting it, since the former required physical actions and physical causality while the latter is purely psychological causality presumed under highly suspect psychological theories to impact the actions of other people.

Except that almost all crimes of physical violence require the demonstration of an intent to cause harm. So while you're making a valid distinction in theory, in practice existing laws all have the psychological component you're trying to avoid.

Wrong. Causing physical harm to others is usually a crime itself, regardless of intent to do so. Intent only comes into play in determining how severe the crime is. In addition, proving intent of the actual actor who did the harm can and must be based upon tangible evidence showing such intent. Since actual violence is a physical act and actions are observable, the intent behind physical actions has observable manifestations. The actual physical actions during an assault are usually all that is required to clearly show intention. We know that nothing makes a person clench their fist and repeatedly strike another in the head, except the intention to cause them physical harm. That is the crime of assault. Nothing make you do that with a knife except the intention to cause extreme harm or death, and that is felonious aggravated assault or attempted murder. Nothing comparable is true with inferring intention to incite others to violence. People speak hatefully of others and especially of groups of others all the time without any intention to incite others to physically attack them. Nothing reliable can be inferred about such intentions from hate speech, unless calls to violent actions are explicitly part of the speech itself.

Hate speech laws punish a person who does nothing but speak and makes no actions directly related to any violence. They require inferences about what the speakers (not the physical actor engaged in violence) intentions were. In addition, no physical acts of violence or even harassment ever need be committed, and not particular person ever need to be targeted (in contrast to your examples). All hate speech laws require is that the speaker said something that might in theory evoke others to feel strong negative emotions toward a group (which can include criticizing religious ideas associated with a group).

Bottom line is that it is you that are mischaracterizing hate-speech as though it has nothing to do with hate or speech and instead is about violence and actions. We don't need hate-speech laws to make the things you are referring to illegal. We might need to expand existing laws about harassment actions and direct threats of violence, but speech is neither neccessary nor sufficient for actions, and hate is neither neccessary nor sufficient for violence.

The only way that enforcement of hate speech laws would not lead to prosecution of speech that merely criticizes groups is if the bar was set so high that such laws are pointless because no prosecution would be plausible unless people committed acts that would be covered by other laws related to targeted harassment and direct calls for violence that are equivalent to a mob boss calling a hit.

 

[arkirk]

Hate...what this is all about. What happens in a human mind that leads one to conclude..."I hate this person" or this group or other class of people? What set of references do we rely on to decide if we hate anything or anyone? If we look at the myriad of hatreds that are possible or actual in our lives and our societies, it seems almost impossible to write a law to enforce prohibition of their expression. I once had a friend who developed a method relating to others that started with suspicion and generally gravitated toward his feeling he needed to punish others. I could not keep him as a friend because he had an anger management problem. There is no question that everything that came out of his mouth the last month I knew him was expressions of hatred for all the bad people on this earth...all the people on this earth...and it was personal. He started committing crimes...vandalism, harrassment, etc. It is as if his mind was just always hunting for the conflict and that conflict for him was his natural state and he felt most comfortable hating. I chalked it up to merely seeking at all costs the adrenal rush such feelings seem to give one.

I think the problem with "hate speech" legislation is that it attempts to address aggressive feelings as crimes. Merely putting these feelings into words then becomes the crime. We each have sensitivities to various forms of hate speech and buried in those sensitivities are the roots of our own aggrssive actions. We have pictures in our minds when someone makes a homophobic comment about one of our friends...pictures like the young boy being tied up in barbed wire in the snow nude and left to die (an actual case several years ago). These are exemplars of hatred in the extreme and we do project this possible scenario into our consciousness perhaps most times we hear the word "faggot" derisively shouted at somebody. We know the extreme to which the feeling being expressed can be carried. There should be laws against organizing or participating in lynch parties. There should be laws against publishing on the internet lists of abortion doctors to kill. There is room for some anti hate speech legislation, but not much.

Society has a lot more to gain with honest, open discussion promoting civility. The real problem is that we do not spend enough time doing this and dissolving the salient exemplar images that reside in most of our minds.

 

[ZiprHead]

I may not agree with what you say, but to your death I will defend your right to say it.

--Voltaire

I hate to be picky, but that was actually S.G. Tallentyre paraphrasing Voltaire.

I hate nit-pickers...

 

[bilby]

I hate to be picky, but that was actually S.G. Tallentyre paraphrasing Voltaire.

I hate nit-pickers...

That's 'nitpickers'.

 

[Togo]

No, they aren't. This may be where the confusion is arising. Most hate speech laws that I'm familiar with are essentially laws against verbal assault, or laws against openly planning or organising criminal activity against a class of person (rather than the usual criminal standard of a particular person). They are not, despite the name, supposed to be laws against particular forms of speech.

And this highlighted portion is where all the subjectivity and unreliability comes in, since "verbal assault" has no objective features and could easily included criticism of a person's ideas. In fact, hate speech laws do ban criticizing ideas, since that is what it means to criticize a religion.

Here is a definition of Hate Speech from USLegal.com : [P]"It is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women."[/P]

Note the highlighted parts showing that violence is not central to the concept, mere "hate" which in nothing but a negative emotion reflecting a personal opinion about something, which makes sense since that is why it is called hate-speech and not violence-speech.

Except that you've edited the definition to exclude the bits that contradict your conclusion. Here's the full text from http://definitions.uslegal.com/h/hate-speech/

Hate speech is a communication that carries no meaning other than the expression of hatred for some group, especially in circumstances in which the communication is likely to provoke violence. It is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women.

Note that the first sentence specifically excludes criticism of ideas, and specifically references violence as central to the concept. Why did you exclude this from your quotation?

Certainly in the UK, where hate speech laws are in effect and have been for a while, they are centered around violence, and do not cover criticism of ideas.

As a practical baseline, if someone is following you around 24/7 continually shouting abuse at you, and anyone who tries to interact with you, such that you can't actually get away from them, at some point there needs to be a legal remedy. Harassment only works if it's the same individual each time, or a legally identifiable organisation. Assault the same, plus it only works if you can demonstrate fear of physical harm and intention to cause same. So how exactly do you stop people doing that to you, in practical terms? On the same note, if a policeman stumbles across people organising a lynch mob, it's useful if he doesn't have to wait until a frenzied mob actually breaks down someone's door before arresting them. It's useful if he can act before that point, and take some action against the organisers and instigators.

Let's take an historical example. A fairly large group of local residents know the route an 8-year old child takes to school, so they show up with banners, dummies with nooses around their necks, knives, bottles and bricks. And they shout abuse, including graphic descriptions of violent and violently sexual acts, at the child from a distance of about 18 inches (40 cm). They let off firecrackers to make it sound like they're being shot at (in an area where children have been shot before). They show up again after school, to follow the little girl around until she gets home. Are the child's freedoms being restrained here?

Sorry, but that is not merely hate speech. That is chronic harassment and clear threats of violence directed against a specific individual.

Sorry, but it's not. Each individual does not harass for more than a short time - they simply take turns. There are no direct threats of violence against the individual - merely shouted descriptions of sexually violent mutilation that do not mention any particular target. The implication is clear, but no direct threat is made. The walk to school is reasonably short - 10 or so minutes, equivalent to running a picket line. And if anyone does step over the line in the course of their 'protest' they can really only be given a caution, and there are many eager volunteers to replace them.

Again, this isn't a hypothetical, this is a case from sectarian protests in Northern Ireland. We know these people were not, in fact stopped by existing laws.

Hate speech does not require any one of those elements. It can be merely words spoken one time that are presumed to promote a strong negative opinion about a ill-defined social group. That is the whole point of hate speech laws. Existing harassment laws could be easily modified to prosecute the kind of targeted and threatening harassment of your example.

Then that would be a suitable response to the question I asked. Can you suggest such a modification that would be effective in covering the same situations, but wouldn't cover the ground that you're concerned about?

In contrast, their is a very clear distinction between committing actual violence and inciting it, since the former required physical actions and physical causality while the latter is purely psychological causality presumed under highly suspect psychological theories to impact the actions of other people.

Except that almost all crimes of physical violence require the demonstration of an intent to cause harm. So while you're making a valid distinction in theory, in practice existing laws all have the psychological component you're trying to avoid.

Wrong. Causing physical harm to others is usually a crime itself, regardless of intent to do so.

Not typically. There's manslaughter, and some driving offences. You can get sued for negligently causing harm, but most criminal cases require intent. Mens Rea as well as Actus Rea. There are very few strict liability offences around physical harm. US Law may be slightly different of course, but I'm not seeing the physical evidence/imputed intent split that you're describing. And particularly not for the kinds of offence that you're suggesting would cover the same area as hate speech.

There's a good set of examples here
http://cw.routledge.com/textbooks/u...se-notes/additional-chapters/CrimLaw_C016.pdf

You'll note that harassment, your suggested replacement, requires demonstration of intent to cause distress or upset, with all the subjective notions that implies that you were concerned about. It seems to be a feature of this entire area of law, and not of hate speech crimes in particular.

Bottom line is that it is you that are mischaracterizing hate-speech as though it has nothing to do with hate or speech and instead is about violence and actions.

The bottom line is that we disagree on this point. I'm pointing to hate speech legislation that already exists, that doesn't have the features you describe. I'm not sure, but I think you're talking about resisting changes to existing law in the US. If that's the case, you need to consider to what extent you're attacking a straw man. Certainly the hate speech legislation I'm looking at in the UK does not have the features you're insisting are inherent to the concept.

We might need to expand existing laws about harassment actions and direct threats of violence.

That may be a sensible way forward. Again, I'm not entirely happy about the idea of 'speech crimes', but most of the hate speech legislation I've seen is reasonably far from that. Either way, the most effective way to oppose new, potentially flawed laws, is to make sure existing laws cover everything that needs to be covered.

Can we get to some specifics? If you want to avoid the idea of criminalising certain kinds of speech, we're going to need to expand harassment, which means dealing with laws that involve intent. Is it practical to remove all subjective judgement from the law, and if so, would it actually help in practice?

 

[Emily Lake]

What arguments would you give to someone who is in danger from being ostracised, assaulted, or even physically attacked, in order to convince them that influential people who call for them to brutally murdered should be allowed to continue?

Donald Sterling.

Admittedly, Sterling was simply racist, not genocidal, but once his comments became public, his peers were forced to react, and to distance themselves from him exactly because of what he said.

Those that speak out so openly about killing all blacks, all gays, all fill-in-the-blank, tend not to be in power. People in power, or those who want to be in power, tend (not all) tend to distance themselves from people that are drawing that sort of attention.

if the leader of a megachurch started to parrot Pastor Steven (http://talkfreethought.org/showthre...stmas’-if-all-gays-are-killed-as-God-commands), what would be the likely effect on his congregation?

That's all backlash on the perpetrator though. What advice do you give the victim? What argument do you give to the person Stevens was targeting, individually, that ameliorates them to the fact that someone is calling for them to be killed?

How do you convince the black man in the 60s that it's in his best interests to let the KKK continue riling up the community and instigating night-time lynchings? Why should he allow himself to be the sacrificial lamb for your "greater good"?

***************************

That said... I'm still going to defend the right of any bigot to say whatever hate-filled things they wish to say. I'm just not going to be so naive as to try to convince anyone that being the target of such bigotry is somehow good for them. It's a price for a freedom that I value... And I will use my own freedom of speech to tell the bigot exactly what I think of him or her.

 

[Emily Lake]

The point of the OP quote is exactly the opposite of suffering in silence. The point is that only when hateful ideas are allowed to be voiced can they be directly attacked. The point is that such ideas should be attacked by allowing them to be voiced and then attacked, rather than by the strategy of banning their voicing and forcing them underground to still do most of their damage. The point is that the "dubious benefit" to the attacked group is the presumed benefit of banning the speech, when it is the ideas and the ultimate actions that generate them which are the real danger. Speech bans only attack words, while open criticism of bad ideas that are allowed to be expressed attack the bad ideas themselves.

In addition, hateful notions are neither neccessary nor sufficient to incite violence. Calls to violence can be made dispassionately without hateful emotion, and hateful emotion is far from calling for violence as the solution to the thing hated. Thus, banning direct and explicit calls for violence would be one thing and far more justifiable, because it would make any "hateful" sentiments or criticisms of the targeted group completely irrelevant to the legality of the speech.

Hmm. You make a good point.

 

[fromderinside]

Donald Sterling.

Admittedly, Sterling was simply racist, not genocidal, but once his comments became public, his peers were forced to react, and to distance themselves from him exactly because of what he said.

Those that speak out so openly about killing all blacks, all gays, all fill-in-the-blank, tend not to be in power. People in power, or those who want to be in power, tend (not all) tend to distance themselves from people that are drawing that sort of attention.

if the leader of a megachurch started to parrot Pastor Steven (http://talkfreethought.org/showthre...stmas’-if-all-gays-are-killed-as-God-commands), what would be the likely effect on his congregation?

That's all backlash on the perpetrator though. What advice do you give the victim? What argument do you give to the person Stevens was targeting, individually, that ameliorates them to the fact that someone is calling for them to be killed?

How do you convince the black man in the 60s that it's in his best interests to let the KKK continue riling up the community and instigating night-time lynchings? Why should he allow himself to be the sacrificial lamb for your "greater good"?

***************************

That said... I'm still going to defend the right of any bigot to say whatever hate-filled things they wish to say. I'm just not going to be so naive as to try to convince anyone that being the target of such bigotry is somehow good for them. It's a price for a freedom that I value... And I will use my own freedom of speech to tell the bigot exactly what I think of him or her.

I defend hate speech in inverse proportion to the ability of those people to act on what they say. 52% now believe defending gun rights is more important than controlling guns. I'm 52% in favor of controlling hate speech as more important than defending the right to speak hate speech.

 

[Emily Lake]

Let's take an historical example. A fairly large group of local residents know the route an 8-year old child takes to school, so they show up with banners, dummies with nooses around their necks, knives, bottles and bricks. And they shout abuse, including graphic descriptions of violent and violently sexual acts, at the child from a distance of about 18 inches (40 cm). They let off firecrackers to make it sound like they're being shot at (in an area where children have been shot before). They show up again after school, to follow the little girl around until she gets home. Are the child's freedoms being restrained here?

And you make an excellent counter argument.

Well. This leaves me in a bit of a bind. This is an excellent discussion, and both of you are making very interesting points. Please accept my appreciation.

 

[Emily Lake]

I defend hate speech in inverse proportion to the ability of those people to act on what they say. 52% now believe defending gun rights is more important than controlling guns. I'm 52% in favor of controlling hate speech as more important than defending the right to speak hate speech.

Can you elaborate? I'm having difficulty parsing this .

 

[ronburgundy]

And this highlighted portion is where all the subjectivity and unreliability comes in, since "verbal assault" has no objective features and could easily included criticism of a person's ideas. In fact, hate speech laws do ban criticizing ideas, since that is what it means to criticize a religion.

Here is a definition of Hate Speech from USLegal.com : [P]"It is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women."[/P]

Note the highlighted parts showing that violence is not central to the concept, mere "hate" which in nothing but a negative emotion reflecting a personal opinion about something, which makes sense since that is why it is called hate-speech and not violence-speech.

Except that you've edited the definition to exclude the bits that contradict your conclusion. Here's the full text from http://definitions.uslegal.com/h/hate-speech/

Hate speech is a communication that carries no meaning other than the expression of hatred for some group, especially in circumstances in which the communication is likely to provoke violence. It is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women.

Note that the first sentence specifically excludes criticism of ideas, and specifically references violence as central to the concept. Why did you exclude this from your quotation?

No, the first phrase is a meaningless absurdity because it only excludes cases that do not exist and can never be proven. All emotions, hate included, stem from and are inseparable from ideas about the object of that emotion. "Muslims are evil" is an idea, not merely an emotion of hate. and in fact hate is not necessarily any part of that idea, since one can view a group as evil and yet not hate them. At best such a restriction would that no speech other than the exact words "I hate Muslims" could ever be prosecuted. But even there, the concept of Muslims inherently entails many ideas about what Muslims are, what they do, etc., and the word "hate" is more than emotion, it is a conceptual idea about being in opposition to something. Thus even that direct expression of hate inherently carries conceptual meaning that goes beyond an emotional state. No valid argument that didn't ignore all reason and psychological science could ever claim otherwise. Thus, that phrase at best defines hate-speech as something that doesn't exist and/or could never be reasonably inferred, and more likely is just ignored by advocates and prosecutors of hate-speech as it clearly has been in actual prosecutions. For example, the UK political leader recently arrested under hate speech laws for quoting Winston Churchill:

[P]How dreadful are the curses which Mohammedanism lays on its votaries! Besides the fanatical frenzy, which is as dangerous in a man as hydrophobia in a dog, there is this fearful fatalistic apathy. The effects are apparent in many countries. Improvident habits, slovenly systems of agriculture, sluggish methods of commerce, and insecurity of property exist wherever the followers of the Prophet rule or live. A degraded sensualism deprives this life of its grace and refinement; the next of its dignity and sanctity. The fact that in Mohammedan law every woman must belong to some man as his absolute property — either as a child, a wife, or a concubine — must delay the final extinction of slavery until the faith of Islam has ceased to be a great power among men. Thousands become the brave and loyal soldiers of the faith: all know how to die but the influence of the religion paralyses the social development of those who follow it. No stronger retrograde force exists in the world. Far from being moribund, Mohammedanism is a militant and proselytizing faith.[/P]

It is questionable whether that speech contains hate, but even if it does, it is beyond any question that it carries ideas that go well beyond the mere expression of hate. In fact, I have yet to encounter a single instance of hate speech enforcement where it could be reasonably argued that no ideas were conveyed.

Certainly in the UK, where hate speech laws are in effect and have been for a while, they are centered around violence, and do not cover criticism of ideas.

Nonsense: see example above. That is prosecution of ideas, not of violence, inciting violence, or even hate.

As a practical baseline, if someone is following you around 24/7 continually shouting abuse at you, and anyone who tries to interact with you, such that you can't actually get away from them, at some point there needs to be a legal remedy. Harassment only works if it's the same individual each time, or a legally identifiable organisation. Assault the same, plus it only works if you can demonstrate fear of physical harm and intention to cause same. So how exactly do you stop people doing that to you, in practical terms? On the same note, if a policeman stumbles across people organising a lynch mob, it's useful if he doesn't have to wait until a frenzied mob actually breaks down someone's door before arresting them. It's useful if he can act before that point, and take some action against the organisers and instigators.

Let's take an historical example. A fairly large group of local residents know the route an 8-year old child takes to school, so they show up with banners, dummies with nooses around their necks, knives, bottles and bricks. And they shout abuse, including graphic descriptions of violent and violently sexual acts, at the child from a distance of about 18 inches (40 cm). They let off firecrackers to make it sound like they're being shot at (in an area where children have been shot before). They show up again after school, to follow the little girl around until she gets home. Are the child's freedoms being restrained here?

Sorry, but that is not merely hate speech. That is chronic harassment and clear threats of violence directed against a specific individual.

Sorry, but it's not. Each individual does not harass for more than a short time - they simply take turns.

They are orchestrating the taking of turns, thus each person is involved not only their turn but that of others. Any evidence that they are not just random unassociated persons but an organized group engaged in the activity makes them each culpable and involved in the harassment engaged in by each of the others.

There are no direct threats of violence against the individual

Depicting acts of violence, displaying weapons, and mimicking use of those weapons are all clear threats of physical violence within that context. What they are not clear displays of is "hate". It is not a display of hate that may or may not (and very often does not) imply violence, but rather a display of violent intent that may or may not be rooted in hate. It would be far easier to prove threats of violence than hate that is devoid of any "ideas". Thus, hate-speech laws would do nothing to aid in prosecuting the case, unless the laws were so loosely interpreted that anything resembling critical negative speech that upsets other people, which is in fact how it such laws are getting interpreted during prosecutions.

- merely shouted descriptions of sexually violent mutilation that do not mention any particular target. The implication is clear, but no direct threat is made.

Yes, and clear implications of violent intent are what the law should target. What is not clear is any implication of hate devoid of ideas. So any enforcement of hate-speech laws as your claim they are intended would be impossible.

Again, this isn't a hypothetical, this is a case from sectarian protests in Northern Ireland. We know these people were not, in fact stopped by existing laws.

And they would not be stopped by hate-speech laws, if they were only enforced when hate is conveyed devoid of ideas. Such laws would never be enforced, because it would be much much harder if not impossible to prove than implied threats of violence. Such instances would only be prosecutable under hate-speech if interpreted loosely to cover things which would include criticism of ideas and actions of others, as such laws have sadly been interpreted

Hate speech does not require any one of those elements. It can be merely words spoken one time that are presumed to promote a strong negative opinion about a ill-defined social group. That is the whole point of hate speech laws. Existing harassment laws could be easily modified to prosecute the kind of targeted and threatening harassment of your example.

Then that would be a suitable response to the question I asked. Can you suggest such a modification that would be effective in covering the same situations, but wouldn't cover the ground that you're concerned about?

Expand the threats of violence laws to include clear intent to threaten violence against specific persons. The laws should not focus upon speech, but rather clear intent to convey the idea of threatened violence. Words are just abstract symbols we have come to associate with ideas. They mean what the mean only if there is a consensus that is what they mean. The same is true of gestures, signs, drawings, puppet shows, and other props. The scenario you described is no less is clearly conveying threats of violence than the string of words "I am going to kill you." (which actually is a phrase that under some contexts is not a real threat of violence, showing that words aren't special and require context like other symbols to convey meaning, including threats). In addition, harassment laws should be expanded to consider organized efforts of harassment as implicating each participant in the actions of the others, thus even if each person only does it one day, they are involved in chronic harassment. Expression of personal value judgments and emotions (like hate) should not be a part of such laws. It is actions that matter, and speech only to the degree that it entails threats of violence. In addition, references to abstract social groups should not be a part of it. It should require clear intent to target particular persons, whether the targeting of them is due to being part of some abstract group category should be irrelevant. It should be no more illegal to say or do something to a person because they are Muslim or black than it would be to do it because someone think they personally are ugly.

In contrast, their is a very clear distinction between committing actual violence and inciting it, since the former required physical actions and physical causality while the latter is purely psychological causality presumed under highly suspect psychological theories to impact the actions of other people.

Except that almost all crimes of physical violence require the demonstration of an intent to cause harm. So while you're making a valid distinction in theory, in practice existing laws all have the psychological component you're trying to avoid.

Wrong. Causing physical harm to others is usually a crime itself, regardless of intent to do so.

Not typically. There's manslaughter, and some driving offences. You can get sued for negligently causing harm, but most criminal cases require intent.

Manslaughter is a crime, and no intent is needed. Third degree murder also requires no intent to kill or harm. Fourth degree murder involves no intent or action directly causing the death, merely being an accomplish to someone that committed the act. There is also criminal negligence and criminal recklessness for acts that cause non-fatal harm without intent. Many cases in the US plead out to these kind of crimes, precisely because no intent is required and thus the directly observed evidence of the physical acts alone are sufficient proof.

Mens Rea as well as Actus Rea. There are very few strict liability offences around physical harm. US Law may be slightly different of course, but I'm not seeing the physical evidence/imputed intent split that you're describing. And particularly not for the kinds of offence that you're suggesting would cover the same area as hate speech.

With hate speech, there is no action, so there is nothing to prosecute except for intent, which is hard to prove when coupled with actions, and near impossible to prove when there are no actions by the speaker other than speech that does not include clear implication of threates violence otherwise it would be prosecutable as a threat of violence.

You'll note that harassment, your suggested replacement, requires demonstration of intent to cause distress or upset, with all the subjective notions that implies that you were concerned about

.

No, because harassment entails observable actions by the speaker that strongly imply intent. They act to repeatedly send their message/threat toward specific individuals and there is observable evidence of this. The greater the repetition (even when by other persons they have organized with), the more it implies an intention to harass particular persons. Hate speech prosecutes people for doing nothing but uttering a string of words, under the assumption they intended for other people to act violently as a result. The problem is not merely inferring intent, but what it is inferred from. With other crimes, there is always actual actions of the person perhaps in combination with the speech from which intent is inferred. With hate crimes, there are no actions of the speaker entailed, only the potential actions of hypothetical others that might act upon hearing the speech. The speakers intentions related to other hypothetical strangers' actions is was must be inferred from the speech itself. That cannot be done with any degree of objectivity, reason, or reliability.

Bottom line is that it is you that are mischaracterizing hate-speech as though it has nothing to do with hate or speech and instead is about violence and actions.

The bottom line is that we disagree on this point.

Yes, but it isn't a matter of opinion, all fact and reasoned analysis of those laws and how they have been enforced shows you are wrong and I am right in that those laws are written and enforced to ban expression of ideas with no requirement that any intent to incite violence even be presumed let alone demonstrated. In fact, even the inciting of hate is not required, merely someone saying it "distressed" them.

I'm pointing to hate speech legislation that already exists, that doesn't have the features you describe. Certainly the hate speech legislation I'm looking at in the UK does not have the features you're insisting are inherent to the concept.

UK legislation has every feature I describe and its absurd and dangerous idea-banning enforcement illustrates those features.

Note that the laws ban not only standard speech but all of the following: "All the offences in Part 3 attach to the following acts: the use of words or behaviour or display of written material, publishing or distributing written material, the public performance of a play, distributing, showing or playing a recording, broadcasting or including a programme in a programme service, and possession of inflammatory material."

The content of expressions that is treated as criminal has nothing to do with violence or inciting violence, or even with inciting hatred, or even having any intent to cause any form of mental distress. Here is the key part of the written legislation:

[P](1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he— (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.[/P]

The bolded part shows that it is sufficient that the mere act of saying something is deemed "abusive or insulting" (both of which are purely subjective value judgments unlike whether actual physical contact and injury occurred) and is claimed by someone to have caused them "distress" (something unprovable in nothing but the opinion of the one claiming it), regardless of any intent by the speaker. Note that the law includes not only a single speech act, but even the mere act of carrying written words that someone claims is distressing. And this is how the law has been enforced, such as this case where a man was punished for leaving humorous mocking pamphlets in a public place that cannot be reasonably claimed to incite hate and certainly not violence:

On 4 March 2010, a jury returned a verdict of guilty against Harry Taylor, who was charged under Part 4A of the Public Order Act 1986. Taylor was charged because he left anti-religious cartoons in the prayer-room of Liverpool's John Lennon Airport on three occasions in 2008. The airport chaplain, who was insulted, offended, and alarmed by the cartoons, called the police.[12][13][14] On 23 April 2010, Judge Charles James of Liverpool Crown Court sentenced Taylor to a six-month term of imprisonment suspended for two years, made him subject to a five-year Anti-Social Behaviour Order (ASBO) (which bans him from carrying religiously offensive material in a public place), ordered him to perform 100 hours of unpaid work, and ordered him to pay £250 costs. Taylor was convicted of similar offences in 2006.

IOW, he was punished for making fun of the ideas of religion. Here are other prosecutions that entail no relation to any violence actual or incited, not even clear evidence of hate, and clear evidence of speech carries "ideas" beyond mere expression of hate.

[P]
On 20 April 2010, police arrested Dale McAlpine, a Christian preacher, of Workington in Cumbria, for saying that homosexual conduct was a sin. On 14 May 2010, the Crown decided not to prosecute McAlpine. Later still the police apologised to McAlpine for arresting him at all, and paid him several thousand pounds compensation.

On 8 December 2009, Mr Justice Richard Clancy, sitting at Liverpool Magistrates' Court, acquitted Ben and Sharon Vogelenzang, hoteliers, of charges under the Public Order Act 1986 and under the Crime and Disorder Act 1998. The Vogelensangs were charged after a guest at their hotel, Ericka Tazi, complained that the Vogelenzangs had insulted her after she appeared in a hijab.

On 2 September 2006, Stephen Green was arrested in Cardiff for distributing pamphlets which called sexual activity between members of the same sex a sin. On 28 September 2006, the Crown advised Cardiff Magistrates Court that it would not proceed with the prosecution.

On 13 October 2001, Harry Hammond, an evangelist, was arrested and charged under section 5 of the Public Order Act (1986) because he had displayed to people in Bournemouth a large sign bearing the words "Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord". In April 2002, a magistrate convicted Hammond, fined him £300, and ordered him to pay costs of £395.[/P]

20 years after the original law, the clear fact that the law criminalizes expressions of ideas and emotions prompted legislators to add this absurd pretense of protecting expression:

[P]"Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system."[/P]

Not only does this vacuous qualification only apply to religion (and not criticism of anything or anyone else), but its logically incompatible with the heart of the law itself. Criticism and expressions of insult and dislike of religions or their adherents applies to any and all possible speech that would be banned due to causing "distress" and being "abusive". So, either this caveat nullifies the law entirely as it applies to religious targets of hate-speech, or the caveat must be ignored entirely when the law is enforced, as it has been ignored when it has been enforced in the more recent post-2006 examples given.

Can we get to some specifics? If you want to avoid the idea of criminalising certain kinds of speech, we're going to need to expand harassment, which means dealing with laws that involve intent. Is it practical to remove all subjective judgement from the law, and if so, would it actually help in practice?

Again, the problem is not with inferring intent per se. The problem is with inferring intent when no action other than the expression of an idea and emotion, and when the intend is not related to one's own actions but rather intend to cause others to act. Also, the law doesn't require any intent anyway, which makes it worse, because it means that unintentionally causing "distress" is sufficient and has been sufficient to severely punish people under the law as in the cases above.
The other problem is that the supposed harm of "distress" is 100% subjective and lacks any clear scientific or legal definition. It isn't even any form of clinically diagnose state, but rather a very minor and temporary state of mood that all people go in and out of on a regular basis. Thus, it is inherently impossible to ever show valid evidence that a single act of speech caused distress, and the so-called victims assertion of distress must be taken on faith, which is what has happened in the existing prosecutions. Finally, no one has any right not be distressed. That is an absurdly low bar of mental "harm". The bar should be some level of extreme and uncommon level of life-disrupting, dysfunction causing mental condition. Reading an religious pamphlet against gays or against Muslims might cause everyday "distress", but you wouldn't find any sound science supporting that it is sufficient to cause any level of mental harm that might be reasonable to legislate.