The limitations of the ’more speech’ solution

On the 25th of november the youth wing of the swedish social democratic party held an action they called ”nätfight” (”net-fight”). The idea was, for this day at least, not to let all the xenophobic nonsense that flourish on various internet fora to stand unopposed. Arguments were to be made. It’s a ”take back the internet from the Trolls” kind of initiative. Most non-xenophobic people dislike engaging in these conversations (especially those that have tried without result) as very little good is likely to come out of such an engagement. Perhaps we believe that engaging will only make things worse. Xenophobic views are not primarily based on arguments, and are unlikely to disappear or be made more moderate on the basis of argument.

This action is similar in idea, but different in content, to two other recent attempts to counter the dark sides internet. The first was launched by a swedish journalist and involves ”love bombing” of sites and Facebook pages where young people are subjected to bullying. The other started with the #signyosonisgay hashtag, which started as a homophobic method of ridicule, but was turned into a medium to show love and support for homosexuals.

The first initiative is based on argument, the other two is based on ”crowding out” bullying and xenophobia. But they have one central feature in common: they are based on the idea that the harm being done in the name of free speech (especially on the internet) is effectively countered by more speech.

Some will say this is the ONLY acceptable way to counter harms done via speech. The ”more speech” solution is preferable to regulation of speech – it’s results outperform in every regard, or so goes the argument. It’s more effective in discouraging harmful speech, it empowers the victims of such speech by demonstrating that both the arguments and other people are on their side, and it does not threaten free speech (and we should be reluctant to equip authorities with the means to restrict speech).

There’s no question that ”more speech” is for the most part a good solution. But the reasoning applies to almost any cause of harm: we should alert the police when we see an assault taking place but we should also intervene. Intervention, when possible, is often more effective on the precise same grounds. But should such a duty, and such initiative, replace the police and laws? Surely not.

Even if the ”more speech”, and ”intervention”, solution, is effective when active, it is basically unfair. It only protects those with friends or advocates active and good enough to make enough of a difference. The law exist, or should exist, to provide protection for those who are not protected by such resources, those who are not currently popular. To argue that ”more speech” should replace hate speech laws is similar to a rich person saying that the police is not needed when one may as well hire body guards.

The other reason is that, as stated above, evidence suggest that xenophobia is not based on argument, and thus will not disappear by argument. Arguments are effective in other ways, by strengthen the victim, and the victims advocate, but it is unlikely to deter the assailant. Criminal sanctions have the benefit of providing reasons to desist no matter whether you accept the argument or not. This, to, is the rationale behind the two non-reasons based initiatives above. Even if you cannot persuade the haters to stop, you may crowd them out, you can bore them and limit the impact of their statements.

But there’s nothing to suggest that these effects would be lessened by the presence of a hate speech law.

On extreme and everyday hatred

The locus of the problem

In policy documents and in the scholarly literature, the idea recurs that the contemporary problem with xenophobia and racism is not primarily located in extremist acts of violence but rather in prejudices prevalent in the general population, and primarily expressed in minor acts of discrimination and behaviors well below the threshold of the criminal. These acts and attitudes when combined, when systematic, accounts for many  avoidable problems facing society in general, and targeted groups in particular, and are quite clearly  a proper target of policy measures. In addition, these widespread attitudes are often held (see Barbara Perry’s 2001 book ”In the name of hate” for instance) to provide the background conditions and justification for more severe hate crimes. Hate criminals may take everyday racism as their mandate to offend

The inclusiveness of the legal definition

Hate crime and hate speech laws target, depending on jurisdiction, more or less extreme versions of discriminatory actions. In the hate crime literature (See Iganski 2008 and Perry 2001) a case has been made in favor of an inclusive definition of hate crime, not limited to cases of extremist violence, but including more or less any crime in which a bias element plays a central role. The argument in favor of such a definition is usually made on the grounds that less extremist, less obviously racist, yet still hate motivated crimes, have the same sort of particularly harmful impact as extremist crimes has, and this is the morally relevant distinction between hate crimes from other crimes. Focus on the obvious cases can make us blind to the prevalence of these relatively ”minor” crimes , and can thus have a detrimental an impact on victims tendencies to report and on authorities tendency to respond. It may also make us blind to the occurrence and impact of non-criminal covert racist behavior.

Harm and Prevention

Hate crime and -speech laws and statutes are often justified on the basis of the harm caused by these crimes. The justification may be retributory, but for the most part, the assumption and justification is that punishment has a preventive function. It is supposed that legislation will limit the occurrence these crimes, and of their harmful effects. It is also viewed as an expression of the state’s commitment to equality. It is presumably assumed to have a discouraging influence on prejudices in general. It’s to the latter function I’ll now turn.

Wider effects on prejudice

The point is this: even if the non-criminal, less obviously xenophobic expressions of prejudice is the true locus of a societiy’s xenophobia problem (and the source of  target groups remaining disadvantaged), punishing the more extreme manifestations have effects on the prevalence of the attitudes thus distinguished as aggravating.  This, presumably, is their rationale. There is little point in the criminal law expressing commitment to equality if the predicted effect is not a reinforcement of support of equality.

Are hate speech laws effective?

In his 2004 book The Hateful and the Obscene, philosopher Wayne Sumner argued against hate speech laws on the grounds that they are largely unnecessary. The kind of racist expressions that presumably warrants criminal sanction in this way is likely to be counter-acted by public opinion and reactive support for victimized groups. Society would indeed be worse if racist speech would stand  un-opposed, but it isn’t. At least not for established minorities (which tends to be the ones protected by this sort of legislation). This, of course, is part of the classic liberal defense of the first amendment: the solution to hate speech is more speech, not restrictions on speech. Hate speech legislation, on this view, is not effective and thus lack justification. Indeed restrictions are likely to make would-be offenders self-righteous and martyr-like and may thus exacerbate the problem.

The extreme and the everyday

The relation between extreme/criminal acts and speech and everyday xenophobia is crucial to policy and legislation pragmatically construed. If hate crime and – speech laws may in fact make things worse in this way (as argued in Jacobs and Potters seminal 1998 attack on hate crime legislation) and it is the widespread prejudice in the non-criminal population that accounts for the severe impact of these crimes (the impact of hate crime is presumably more severe in a society where the victim is also subject to widespread prejudices), we have a dilemma. If the public reply to hate crimes is diminished prejudice in the general population, each hate crime is likely to diminish the conditions for their particularly harmful impact. While this should  not be counted as a mitigating factor, it does rather undercut the rationale for it being an aggravating factor. In particular if the attitudes that actually determine the impact is not that of the offender, but that of the general public.

One mechanism by which punishing hate motivated speech and acts may have a detrimental effect is, as stated in the introduction, if it means we ignore and accept everyday racism as relatively unworthy of attention. Hate crime legislation, especially when it is not enforced, can be a relatively cheap way of ”taking prejudices seriously”. It can express commitment to equality while not making a commitment to work towards equality.

The case for legislation

The argument that hate crimes and -speech is naturally counteracted by public reactions, because tolerance is the prevailing attitude in most modern societies, does not necessarily undermine the case for legislation. In fact, it may offer a further argument in favor of these laws: Legislation (plus prosecution and sentencing) is part of the public ”reaction” to these crimes and to this type of speech. The public condemnation of these acts (be they acts of violence or of speech) means that they are held to warrant extra punishment. The laws are legitimate.  The support offered to victims should not just come from public reactions (which a fickle and too dependent on ones groups prior standing) but from legislation that ensures equality of consideration.

The empirical question, crucial for policy

Do laws (and prosecutions, sentencing etc) have a reinforcing impact on attitudes thus expressed? This, is an important question. And it would seem to be an empirical one, the settling of which depends on careful (and methodologically very complex) evaluations. Do effects on general attitudes depend on an inclusive hate crime concept, for instance, showing that non-extremist and non-violent crimes can be hate crimes too? Does it depend on law-enforcement making these crimes their priority? Or might such a policy result in a worsening of the situation, by putting the emphasis on group conflicts? These, as I say, are clearly crucial question to answer if hate crime- and speech legislation is based on and ultimately justified by their role in, a general anti-prejudice policy project.