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.