Hate Speech as Hate Crime

A number of States have laws criminalizing speech on the basis of content. ”Hate speech”, as it is often known, is a regulation prohibiting certain views from being expressed. This is distinct from direct incitement to criminal acts, or, for that matter, causing physical harm by expressing a view very loudly in someones ear, by the emphasis on content. (Lets leave for now the crucial question of how to individuate content in context).
Now, Hate Speech and Hate Crime are usually kept apart. The former is much more controversial and not embraced by as many states, or by as many scholars. Indeed, its not uncommon to come across strong advocates of Hate Crime legislation that are simultaneously in strong opposition to Hate Speech legislation.

The key difference, it is claimed, is that Hate Crimes require a ”base offence”. This means that in order for a Hate Crime to exist, there must be an act that would be criminal even absent the hate motive. But in the case of Hate Speech, it is said, there wouldn’t be an offence absent the motive or content.

There is a clear weakness in this argument, and it depends on the conflation of hate motive and hate content. I can express a hateful view without actually harboring the hate expressed. Linguistic content is not a relation between my internal state and the words I use, but between linguistic conventions/functions and the words I use. If Hate Speech is a crime based on content, it is a crime that can be committed with any motive. This means that there is a ”base offence”, independent of hate/bias motive, which can then be turned into a Hate Crime, if such motives are present.

This does not mean that all states with hate crime laws should start punishing hate speech acts. It only means that what acts can be a hate crime depends on what acts are criminal in the state in question. If speech based on content is such a crime, there is no theoretical hurdle to stop it from being a Hate Crime.

Future-oriented and customized punishment

Legal punishment is normally justified by appeal to Wrongdoing (the criminal act) and Culpability (”the guilty mind”). These are features focusing on the perpetrator, which makes sense as it is he (nearly always a ”he”) who will carry the burden of the punishment. We want to make sure that the punishment is deserved.

But it is also typically justified by appeal to societial well-being. To protect citizens from harm, to promote the sense of safety, to reinforce certain values, to prevent crime by threatening to punish, to rehabilitate or at least contain the dangerous. According to so-called ”Hybrid” theories, punishment is justified when these functions are served, but only when it befalls the guilty, and in proportion to their guilt (this being a function of wrongdoing and culpability). Responsibility/culpability constrain the utilitarian function. Desert-based justification is backward-looking, while the utilitarian, pro-social justification is forward-looking. (Arguably, the pro-social function is dependent on the perceived adherence to the responsibility-constraint.)

Neuroscientist and total media-presence David Eagleman had a very interesting article in The Atlantic a while ago, pointing out that revealing the neural mechanisms behind certain crimes tends to weaken our confidence in assigning culpability. Rather than removing the justification for punishment, Eagleman suggests that we move on from that question:

Continue reading Future-oriented and customized punishment…

Hate Crimes and the Unfair Distribution of Harm

Hate Crimes Hurt More is the title of Paul Iganski’s 2001 article in the American Behavioral Scientist, and while this title could have done with an added question mark, subsequent work by Dr Iganski and others offers ever increasing support for the central claim. The harm caused by hate crimes is not just the harm done to the victim, but to the group membership to, or association with, which was why he or she was targeted, and to society as a whole. Calculated in mere aggregative terms, then, there seem to be plenty of reasons to prioritize hate crimes, to prevent them from happening and to help victims (primary, secondary and tertiary) cope with the consequences. It is important that we work out why hate crimes hurt more. The reasons may be extrinsic to the crimes in question, for instance, and thus be addressed by other means than criminal sanctions. So far, so utilitarian, so within the wrong-doing – culpability paradigm. Hate Crimes are worse than other crimes if (and only if) they tend to do more harm.

Hate crimes Hurt Less?

Now, while there is evidence for the claim that HC’s hurt more, it is far from complete, and as data collection is far from standardized across nations, it’s hard to sustain the universal claim. So now I’m going to make a bold suggestion: Hate Crimes actually hurt less and that’s what’s wrong with it.

If we focus on the harm done to the victim’s group, there seem to be at least two mechanisms at work:

1) If people like me are targeted, I’m more likely to be next.

2) I feel more empathy for people like me, so when someone with whom I share an important characteristic, I feel it more.

This means that if another group/characteristic is targeted, I’m unlikely to be targeted, and I won’t, presumably, care as much. I guess most people feel like this about gang-related violence. If totally random acts of violence occur, everyone would, presumably, feel equally threatened and thus the harm would be even greater (even if the likelihood of you being next would be inversely proportional to the group within which the random violence occur).

The suggestion here, then, is that hate crimes hurt some people more than others. And that’s what’s so wrong about them. It’s discriminatory, and prioritizing hate crimes would be an act of distributive justice, independent of claims about the extent of harm caused by these crimes. This is in line with an Harel and Parchomosky (On Equality and Hate, 1999) who claim that recognizing the moral significance of hate crimes in criminal law depends on extending the wrong-doing – culpability paradigm with what they call the Fair protection paradigm.

Equality vs Utility

This brings to the surface a very basic conflict in moral and political philosophy: It’s uncontroversial that harmfulness counts, but does equality of distribution of that harm (and benefits) count as well?  If it does, there can be conflicts. Making hate crime a priority may be very costly in terms of police efforts, for instance, and require resources to be taken from investigations addressing other crimes. In principle, we can have a situation where a smaller number of crimes, and a lesser aggregate of harm, takes place but a disproportional portion befalls a minority of the population. That scenario comes in roughly three types, testing our commitment to fair and or equal distribution:

1) The number of crimes and amount of harm befalling the disadvantaged group is smaller than it would otherwise have been – I.e. the total harm is smaller, and the harm caused to the group is smaller than in the original scenario, but the proportion carried is larger. Preferable in absolute terms, not preferable in equality terms.

2) the number of crimes and amount of harm befalling the disadvantaged group is the same, but that of the majority is lowered.

3) The number of crimes and amount of harm befalling the disadvantaged group is larger than in the original scenario.

Our commitment to equal distribution is shown by which of these we find preferable to the status quo, or if none of them are.  If, in a Rawlsian spirit, you want to look at how well, in absolute terms, those are doing who are worse of, 1) is preferable to the status quo.  (The difference principle)

Hate Crimes hurt more because they hurt some more than others

The argument made, and the mechanisms posited above, works, if at all, on the group level. There is a further argument to be made, which works on the level of society as a whole: What’s wrong with (some) inequalities of distribution is that they tend to lead to suboptimal outcomes. That is, if an unfair proportion of crimes hits certain, typically already disadvantaged, groups, this is correlated with societal discord, hostility and impoverished inter-group relationships. It makes successful interactions less likely by raising suspicions.

If this is true, a purely harm/utility driven account of the badness of hate crimes can appeal to harmfulness in absolute terms. This harm may result even if the primary and secondary harm caused by a targeted hate crime is actually smaller than that of a ”completely random” crime, or any other crime for that matter.

Changing the focus to this level does, I think, get the general problem right. And it’s not just a problem with hate crimes, but with hate and prejudice in general (I believe Barbara Perry would agree). It does, however, mean, that demonstrating the relevant harm caused by individual crimes is exceedingly difficult. And this might be right, too: while the direct harm is caused by the criminal, the Hate Crime specific harm may not be, and thus the problem should be addressed not with criminal sanctions but by other means. We could still hold an individual responsible for targeting a group that carries more than it’s share of the burden, however – it would be a crime dependent on the disvalue of unfairness, rather than of harm.

Pure Self-indulgence

I always intended to do this, but kept putting it off. ”Filosofisk tidskrift” is one of two light-on-design-semi-heavy-in-content philosophy publications in Swedish. There is an idea that swedish as a philosophical language is getting eroded (Admittedly, it was never much of a land-mass), and FT is part of the effort to keep the pot if not exactly boiling, at least luke-warm. Another part is that strangely popular radio-show which I haunted for two weeks and was never asked back on. As ardent readers of this blog and other things I write might have noticed, I’m no help in this effort.

But look! There it is, my name on the cover. As mentioned, I always intended to write for it, and have a folder with half-written texts and barely hatched ideas with the name ”good enough for FT?” slapped on it. With entries dating at least 15 years back (and keep in mind that I am a measly 32). So am I finally getting around to writing philosophy in swedish? Will that folder and those desk-drawers finally start on a publishing career on their own?

I’m sorry I’ll have to reveal to you the origin of the text now in print. It’s a translation. I wrote it in english a few years ago when I taught an advanced course in value-theory and found that no text available would do for my purposes. And last summer when I kind of thought that my confidence could do with the boost of a publication, I sat down and translated it.

The text is surprisingly non-self-indulgent. I don’t develop my own theory in it as much as I recognize it’s theoretical forebears. It’s got a bit of Peter Railton in it and the marvelous Leonard Katz finally gets the credit he deserves.

So if you’ve ever held this piece of sad-looking cardboard publication in your hand and thought that you’d read it one day but kept putting it off, like I did writing for it: Why not do what I did, and make it this issue?