Guest post: The difference between nuisance and threat
Originally a comment by Freemage on Will they cover mild distaste?
Generally, US Hate Crime laws work very well, to the extent that they’re applied as written. It can be easily understood that, for instance, vandalism is one thing (a nuisance property crime), but a swastika on the side of a Jewish cultural center is another (an active threat, meant to cause fear to a segment of the community). Similarly, a violent attack to gain the victim’s wallet, and an equally violent attack against a person solely because of his skin color are different beasts–again, the latter is deliberately meant to terrorize not only the victim, but also any others sharing his skin color in that neighborhood. More victims = bigger crime. (Elliot Rodger was a clear-cut example of a hate crime against women, as another example. He wasn’t shooting just to express social frustration, but to actively create a fear-response in women who say no to sex with men.)
So in the US, hate crime laws seek to regard bias as a modifier to the punishment criteria of an actual crime. No actual crime, no ‘hate crime’.
There’s two main issues that come up.
First off, women are notoriously under-represented in hate-crime legislation, and even in places where the law does recognize them as a protected class, prosecutors are unwilling to pursue crimes against women-for-being-women as hate crimes. There are plenty of cases of rape, in particular, where the perpetrator is clearly acting out of not merely a desire to sexually dominate a single woman, but rather to ‘put women in their place’. Serial rapists should almost always get hate-crime kickers, for instance.
The second issue (again, in the US) isn’t so much with law, as with law-like codes (such as university policies) that seek to treat the opinion and the deed as not merely morally/ethically equivalent, but also as ‘legally’ equivalent. This is vastly more shaky ground, and prone to both abuse (targeting someone whose speech isn’t anywhere near actual attempts to provoke violence) and lopsided approaches (look at social media policies that punish anti-trans-idology speech with rabid fervor, but look the other way at straight-up rape threats against women).
Germany has a historical/cultural reason for wanting to keep the lid on speech, and other European nations often seem to want to follow suit. But it’s still a huge risk to civil liberties to cross that line.
The US is protected by the first amendment, in that speech itself is protected, and so is only criminalised when part of a criminal act.
Ireland is currently passing draconian legislation on “hate speech” (the “Incitement to Violence or Hatred and Hate Offences” Bill), in that the wording is vague and subjective.
This criminalises public acts or speech “likely to incite … hatred against” people on account of protected characteristics, where the person either “intends” that outcome or is “reckless as to whether such … hatred is thereby incited”.
There’s a defence that the speech was “a reasonable and genuine contribution to … political … discourse”.
All the relevant words (“hatred”, “reasonable”) are subjective. There’s no definition of ‘hate” or discussion of any threshold between “hate” and mere “dislike”.
It will thus come down to the opinion of police officers, prosecutors and magistrates/judges as to what is allowed or not allowed.
So, if someone says “it’s unfair to allow males in women’s sport”, and a trans-IDing male complains, you could well find yourself in court trying to convince a magistrate that this was a “reasonable” contribution to public discourse.
By the way, one of the protected characteristics in the above bill is “gender”, defined as:
” “gender” means the gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female, ”
In other words, “gender” is pretty much undefined and means whatever anyone wants it to mean. But if you say anything that could be taken as “hateful” to anyone on account of their “gender” then you would fall foul of the above law.
Coel, all very true, but the US hasn’t been great about the First Amendment and its protections. The violations of this amendment began early, in the Sedition Acts. The Comstock laws, still unrepealed and on the books though not enforced, are also a very blatant reduction of free speech rights, especially since, like you describe ‘hate’ and ‘gender’ in the Ireland bill, the obscenity covered whatever Comstock (and later prudes) thought it did. The Hayes Code in Hollywood was enacted to ensure that they could show the movies they made.
Then there’s the concept of ‘dangerous’ speech. I realize that the speech many people want to restrict is things like Neo-Nazis preaching hate and Sarah Palin putting a bullseye on Gabby Giffords, but dangerous is too broad a term. Is it dangerous to say “I’m gay”? No…not in the sense of endangering anyone else, but it would often through history (and still) risk the person saying it. “I’m atheist” is another of those ‘dangerous’ things.
Eugene Debs was jailed for so-called dangerous speech because he opposed war and the draft…during a war. We would probably all argue, at least on this site, that what he said was protected speech. Margaret Sanger went to jail for speaking about birth control.
Yeah, in theory there has to be a crime in the US to invoke “hate speech” legislation. In practice? I suspect in time, no. And if the Supreme Court doesn’t like the speech, many of them will protect the legislation, just like many justices in the past protected rules against ‘profanity’ and ‘obscenity’ (little of which would come close to what is protected speech today).
That non-definition is hilarious. So on spot, and so unaware.
Apart from the obvious potential for abuse (and any law allowing the government to persecute people for thoughtcrime is definitely going to be abused. I see no possibility that it won’t be), another reason censoring “hate speech” is such a stupid idea is that the people you really need to worry about – the truly dangerous and violent extremists – are practically without exception conspiracy theorists who think the government is involved in a vast cover-up to suppress the truth anyway. Censoring their views only plays into their paranoid delusions and boosts their credibility in the eyes of their followers (“censored for telling the truths they don’t want you to know etc.”). I can’t resist quoting the following passage from Norwegian author Torgrim Eggen’s 2013 book about Berlin (my translation):
As they say, you can only be cancelled by your own side. Being cancelled by the enemy is a badge of honor.
So we’ll have time travel sometime in the next five years?
Tsk tsk…
As I keep saying, I really think the Illuminati have lowered their standards lately. These evil brotherhoods used to have lofty goals like world conquest and the “New World Order”, and now they’re reduced to sneaking embarrassing typos into people’s comments on blogs. Kind of pathetic actually :-/
(Anyway that should be 1928)
Death by a thousand cuts.
No, the Nazis did in 1928. We’ll be getting our copies of that year’s Angriff in 2028. They’ve been waiting for us in the hollow Earth: https://www.newsweek.com/hollow-earth-conspiracy-theory-says-planet-filled-aliens-and-nazis-it-isnt-759113
Oh, dear. We should definitely stop drilling, then, lest we puncture the surface and the whole Earth pops.