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Prejudice & Perception

Perfectionism & Hate Speech Law

Shaun O’Dwyer on reconciling free speech with protection against hate speech.

In this era of growing ethno-nationalism and xenophobia in Europe and America, and indeed, worldwide, debates over hate speech are intensifying. Decent people argue that the terrifying rhetoric of extreme right wing groups online and on the streets – and escalating confrontations – demonstrate the necessity of hate speech laws.

Supporters of freedom of speech have responded that the non-coercive speech of all should be protected – including the free speech of racists, neo-Nazis, and bigots. In diverse liberal societies, they argue, it is inconsistent for the state, or even powerful social media platforms such as Facebook, to protect some expressions of ideas while banning others merely because some groups object to it. It is also likely, they argue, that hate speech laws or bans can be weaponized against their advocates, such that polemical ideas by minority activists or leftist radicals can also be prohibited when their right-wing or authoritarian enemies turn hate speech prohibitions to their own advantage.

The stalemated debate between these two positions suggests a sort of ‘incommensurability of values’ that Isaiah Berlin once wrote about – between liberty on the one side and human dignity and civic equality on the other. They’re all prized and recognized to have tremendously beneficial consequences when realized in law and in custom. Yet an increase in free speech often involves some diminishing of dignity. Freedom for the swaggering bully takes away equality and dignity for those at the bottom of the playground pecking order. Conversely, enforcing equality and respect for dignity involves some diminishment in liberty. The would-be bully keeps his thoughts and urges to himself, but perhaps so do many others, as the vigilant headmistress casts her shadow over a quieter, seemingly more egalitarian playground.

I want to suggest that a compromise between freedom and dignity over the problem of hate speech might be possible. My approach is inspired by a philosophy called perfectionism. Perfectionists typically hold that there are objective values or goods whose promotion contributes to morally valuable ways of life, nurturing the ‘better angels’ of human nature; and also that objective moral value means some ways of life are more valuable than others. Many (but not all) moral perfectionists think that the state has a role in promoting the better ways of life by passing legislation and distributing resources to enhance different goods or promote different values, in areas such as welfare, education, the arts and sciences, employment, and civic morality. For such perfectionists, laws against hate speech make sense in terms of promoting more mutually-respectful ways of living in diverse societies.

A New Way Of Opposing Hate Speech

Perfectionism has a respectable pedigree in liberal thought extending back to John Stuart Mill and Immanuel Kant; but this pedigree is not enough to save it from the objections of free speech advocates whenever perfectionism is invoked to promote hate speech law. The free speech advocates will complain that hate speech law is itself unacceptably coercive and paternalistic – that it requires the state to abandon the value-neutrality that it ought to occupy in a diverse liberal society, in order to play favorites with values or ideas of the good life that are the subject of reasonable disagreement between citizens. One such point of disagreement concerns whose idea of the good life should be considered so detrimental for the overall good of society that its expression must be regulated or prohibited.

However, I have in mind a mild liberal perfectionist approach to hate speech – call it ‘perfectionism lite’ – which envisages a non-coercive role for the state in encouraging the good life of its citizens. So rather than criminalizing hate speech, doing which impinges upon another good the state also regards itself as bound to uphold – the freedom of speech – the state passes laws exhorting citizens to stand up to hate speech.

As a free speech liberal I have my own qualms about perfectionism lite, but I think it worthwhile to explore how it could both justify hate speech law whilst also opposing criminalizing hate speech.

As it turns out, there is an example of non-coercive hate speech law to hand which can help us think through this question, for in 2016 the government of Japan passed just such a law.

Two to three years ago racist demonstrations against resident ethnic Koreans (Zainichi) had become almost daily occurrences in Japan. The rage behind these demonstrations was stoked by a combination of political issues, including Japanese disagreements with South Korea over colonial and wartime history, growing diplomatic tensions with North Korea, and resentments over the perceived ‘special rights’ given to Zainichi. Ultra-right-wing organizations demonstrated outside Zainichi schools or in the Korea Towns of Tokyo and Osaka, displaying or shouting slogans such as “Exterminate all Koreans!”; “We came here to kill North Koreans!”; “Cockroaches!”; “Kick these low-life Korean maggots out of Japan!”, while similar abuse proliferated on internet forums. A former leader of one such ultra-rightist outfit stood in Tokyo’s 2016 gubernatorial election, attracting 1.74 percent of the vote – a still unnerving total of 114,000 votes – on an anti-immigration ‘Japan First’ platform.

Subsequently, debates about the criminalization of hate speech took place amongst politicians, scholars and media commentators, especially since international organizations such as the United Nations urged Japan to pass such laws. However, these debates were framed by a strong awareness of speech freedoms, since Articles 19 to 21 of Japan’s post-war constitution provide robust protections for freedom of conscience, speech, and religion. Judicial experts and politicians cited these articles to highlight the difficulties of criminalizing hate speech.

The hate speech law that was finally passed in 2016 reflected this awareness. Although this legislation admits the “tremendous pain and suffering” that “unfair discriminatory speech and behavior” inflicts upon resident foreigners and their descendants in Japan, it provides no criminal law remedies: instead it directs national and local governments to use publicity campaigns and education to “increase public awareness of the necessity of eliminating unfair, discriminatory speech.” I wonder if such legislation could provide inspiration for perfectionist-minded hate speech statutes in nations which, like Japan, have strong constitutional protections for freedom of speech?

Protest against hate speech
© Fibonacci Blue 2016

Difficulties with Criminalizing Hate Speech

Many Japanese progressives want hate speech to be criminalized, and are not satisfied with the hate speech law as it currently stands. I’m inclined to think it should be left as it is, since the strongest arguments in favour of criminalizing hate speech do not stand up to scrutiny, as I intend to show.

One way to define and justify hate speech law which some legal philosophers recommend, is through comparison with defamation and libel law. Defamation involves publically making untrue statements calculated to harm a person’s reputation and dignity. Hate speech, according to these legal philosophers, can be understood as a group libel or defamation – that is, as untrue, abusive, dehumanizing, threatening and insulting speech calculated to damage the social standing and dignity of people as members of a particular group, and thus stir up hatred against them. The degree of damage this inflicts upon the collective dignity of a group, and the damage such speech does to civic order through the accumulation of public statements asserting, directly or indirectly, that members of that group do not deserve equal status as citizens or as human beings, warrants a criminal law remedy, they argue.

One objection to this idea of hate speech as a ‘group libel’ is that claims about damage to collective dignity and standing can be used to criminalize many kinds of group criticism, as a means to shutting down freedom of speech. These include ‘defamation of religion’ laws to protect religious groups from insults against their faith, including satire or criticism; and Turkey’s Article 301, which proscribes ‘insults to the Turkish nation’ – such as public statements asserting the truth of the Armenian Genocide.

Defenders argue that hate speech laws are different because they are intended to protect vulnerable minorities. Such minorities have long memories of discrimination, subjugation, or even genocide, and are historically vulnerable to speech that diminishes their social standing, rendering them insecure and fearful for their survival.

This response will not satisfy critics, who may point out that such a rationale could be reverse-engineered by white nationalists and religious sectarians eager to present themselves as minorities vulnerable to persecution. This might appear to be an absurd objection, but it is unwise to consider ‘absurdity’ only from the point of view of a philosophy discussion, rather than, say, a national election campaign harnessing populist, ethno-nationalist resentments.

Another sophisticated way to define hate speech is to think of it as what linguists and philosophers of language call a ‘speech act’. Speech acts do not simply describe: they are meant to do something or have an intended effect. A classic example of a speech act is the one uttered by marriage celebrants who, in pronouncing a couple to be married, make it so. In the 1980s and 90s, some feminist philosophers argued that pornography is a speech act that subjugates and silences women; and since that time, race and gender theorists have explored how hate speech works (or fails to work) as a speech act to subordinate people of colour and sexual minorities.

Although not all of these theorists favour criminal law remedies for hate speech, there is some consensus on how hate speech works as a speech act. Imagine a white man outside a segregated swimming pool in the South of the United States in the mid-twentieth century, looking menacingly at some black people passing ‘too close’ to him and snarling “no n-----s allowed.” He is doing something in saying this: he is enforcing a legal ban against black people entering the pool. In doing this he is supposedly ‘putting them in their place’ as an inferior class of persons. Such statements also have the intended effects of intimidating people into deferential obedience and pre-emptively silencing opposition. We need not even imagine the white man there: a sign bearing the same message will do a similar job.

On this understanding hate speech is a speech act which oppresses vulnerable minorities, puts them in an inferior place, inflicts fear, humiliation, and insecurity on them, and silences them. So the argument here is that hate speech should be criminalized in recognition of the harms that it does and causes, and to prevent the subjection of minority groups.

Obviously, substantial institutional and social props need to be present for hate speech acts to work so effectively. Imagine a white man pulling that same stunt outside a public pool today. Without the backing of racist institutions, conventions and laws – and lynch mobs – such speech acts can no longer work as they were intended to. There may still be intimidation and fear; but more overwhelmingly, there will be defiance, outrage, condemnation of the incident on national and social media, public denunciations by government officials, and, possibly, arrests of the perpetrators under anti-intimidation statutes.

Although these are good and necessary developments, it makes a problem for describing hate speech as an oppressive speech act in modern liberal democracies, in that it’s difficult to prove that minority groups are so homogeneous that hate speech will uniformly work against them, forcing them into the inferior, subjugated and injured status that warrants criminal sanction against their abusers. That is, under defamation law, or criminal laws covering threat and intimidation, it is in principle relatively straightforward for individuals to go to court and present their case that they have suffered injury to their reputations, or been intimidated by prejudiced abuse and threats. Things are less straightforward for groups comprising hundreds of thousands, or millions, of people, perhaps definable as a historically vulnerable minority, but divided by opinion, values, wealth, occupation, and social status. Compare the case of a tenured African-American professor at a leading American university who is subjected to a racial slur by a white student, but is backed up by college anti-racism codes, and supported by colleagues, administrators, and the student body, with that of an impoverished working-class African-American teenager subjected to the same slur by a white policeman confronting him on a street.

Many contextual factors, beginning with differences or similarities in social and legal power between abusers and the abused, can influence how much hate speech actually works as intended, or backfires on the abusers. In light of such doubts, liberal opponents of hate speech law can mobilize the ‘harm principle’ to reject criminalization of hate speech. The harm principle says that the state is only warranted in using coercion against citizens to prevent the citizens from coercing or harming their fellow citizens. But it is often not clear how much hate speech harms on a collective scale.

Yet even if it’s hard to identify a common denominator for the harms hate speech does to internally diverse minorities, surely things will be much worse if governments do nothing to ban it. Hate speech acts may not always work as intended; but their malignant intent remains, and will be recognized as such, contributing to fear and insecurity amongst minority groups, especially when those speech acts escalate into violent physical acts.

However, in our era of renewed nationalism, there are signs that criminal hate speech laws are not working as intended. For instance, Canada’s criminal hate speech laws are stringently defined yet rarely enforced, and there have been modest increases in hate crimes there in the past three years, especially against Muslims. France has more frequently enforced criminal hate speech laws, but anti-Semitic and anti-Islamic hate crimes and xenophobic political movements have all sharply increased there in recent years. Germany has ‘incitement to hatred laws’, but it has struggled to cope with rises in violent hate crimes and hate speech in the 1990s and in more recent years, and it too has witnessed a rise in xenophobic and anti-immigration political movements.

The Japanese Way

Both free speech advocates and perfectionist promoters of non-criminal hate speech laws can agree that hate speech does not represent a clear enough case of collective harm or oppression to justify coercive state intervention, and that there are also prudential reasons for opposing such laws, because of their questionable efficacy, and because they can be abused. They will also likely agree that given its malignant, discriminatory intent, which conflicts with important values such as the dignity and equality of all citizens irrespective of creed or ethnicity, etc, hate speech is a serious moral problem for liberal societies. But they will still disagree on how to deal with it.

So I will conclude with some cautious remarks in favour of Japan’s hate speech legislation, and summarize some objections that free speech advocates like myself might still have to it. In the year since its passage, this law has proven effective in incentivizing local government and police authorities to use existing statutes against more menacing hate speech, online or on the street. Moreover, in sending a signal to wider society that hate speech is officially condemned, it is encouraging civil society activists, including from minority groups, to organize counter-protests and impose moral penalties on those who express hate. Coincidentally or not, anti-Korean demonstrations have halved in the past year, and so has the intensity of the language used in them.

Substantial objections remain, however. First there is the problem of paternalism, implicit in the sort of hate speech law that perfectionism lite supports. For instance, in declaring that the public needs to undergo education and consciousness-raising campaigns to help eliminate hate speech, Japan’s hate speech law appears to judge citizens incapable by themselves of conducting their lives in a morally upright fashion, instead assuming that they need to be educated to do the right thing. Liberal critics of perfectionism argue that such judgements are unacceptable, since they deny to citizens what Jonathan Quong has described as “their moral status as free and equal citizens.”

Second, the strong language used to denounce hate speech in the Japanese legislation – “unfair speech and action… will not be tolerated” and “tolerating (its existence) is impermissible” – may leave the door open for mission creep towards coercive measures to eliminate free speech that is argued to be hate speech, generating the sort of problems we’ve looked at.

Third, the formulation of any hate speech law puts in the hands of the state the power to define which minority groups are affected by it. In the case of Japan’s hate speech law, they are defined as “persons originating exclusively from a country or region other than Japan or their descendants” and this definition refers most obviously to Japan’s Zainichi minority. Such a definition can provoke objections over who it excludes, such as indigenous people, or religious minorities, and whether there are convincing reasons for such exclusions.

These objections may not be decisive, although they do motivate my own wariness about even perfectionist lite justifications for hate speech law. Still, I remain open-minded that these objections could be neutralized by carefully formulated, non-coercive hate speech statutes proposed wherever there is robust constitutional and social support for speech freedoms.

© Shaun O’Dwyer 2017

Shaun O’Dwyer is an associate professor in the Faculty of Languages and Cultures at Kyushu University, Japan. He has published widely on topics such as pragmatist philosophy and modern Confucian thought, and moonlights as a journalist in his spare time.

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