A Controversy Over The Laws Banning The Use of Hate Speech

On April 11, 2016, Mark Meechan, or a youtuber better known by the name Count Dankula had uploaded a video of him telling his dog to raise his paw in a salute whenever he blurted “Gas the Jews”. A couple of months later, on July 21, Mark received a letter requiring him to be present in court as he was charged in violation of the 2003 Communications Act as he had made a video that contained speech designated as offensive. Although Meechan had used the phrase in a satirical way without any intention of inciting violence but to irritate his girlfriend, the Scottish courts decided to ignore the context of the video and take offense in the place of the Jewish community. Mark’s trial put into question hate and offensive speech laws as the laws themselves placed jokes as illegal and serving in contradiction to the value of freedom of speech. The contradiction only exists as the law intends to protect minority groups in society. Hate speech laws prohibit speech that can be used to dox and harm if intended, but doing so has come at a societal cost. Banning speech done with the intention of protecting sectors of the population does not make society a better place as it fails at setting a standard on what is considered offensive, it radicalizes individuals by creating echo chambers, and adds burdens to discussions about issues that society has to take a look at.

Banning offensive speech is itself a challenge as there is not an objective rule set for declaring what is offensive. Different people have different standards in what they take in an offensive or at the very least what raises their eyebrows. This occurs as during a discussion the person speaking initially has no control over how others will react to it. Let's call the person initiating the conversation as the “sender” and likewise the person getting the message as the “receiver”. In this case, the “receiver” has full control of what they find uncomfortable and may then tell the “sender” to alter their language accordingly. The “sender” gets a second chance to rectify their misstep while also getting an opportunity of becoming the “receiver” and setting the rules of discussion. However, during interactions with more than one person, it becomes increasingly difficult to understand what is taboo and leaves very little words that are not considered tasteless, hence becoming hard to police. Taking the example of the large group, it can be expanded to a group within a collection of groups that make up an even larger group, such as in towns and metropolitan areas within a country. The standards of what is considered offensive will inevitably vary between towns and cities and if it is set by law, people will be in trouble with the law by violating a legal gray area. The same has occurred in the European Convention on Human Rights as it protects free speech in Article 10 but has a provision in Article 17 where it doesn’t allow the use of speech to call for the loss of rights. Article 17 has been used as a defacto law banning the use of hate speech that is “racist, xenophobic or anti-Semitic”. Nevertheless, Article 17 has been extended to remove speech that is discriminatory from the protection in Article 10, such as speech calling for homophobia and misogyny. It can be seen that as more and more protected classes are recognized by the European states, more restrictions on speech are being added and thus is showing that laws banning speech are never set and change not only between different regions but also through time. This has been the primary reason why the Council of the European Union took almost a decade in reaching an agreement in defining hate speech since they started the Framework Decision on Combating Racism and Xenophobia through Criminal Law program back in 2008. On one part new protected classes kept being added, making the title of the program outdated, while on the other hand differences between all the European Union members definitions was cited as another reason for the delay in setting new hate speech laws. Some of these differences on definitions included Cyprus as it banned only the “conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting,” while in the United Kingdom the law goes as far as to not only include actions, but also the “use of words ….. or display of written material, the publishing or distribution of written material”. However, when legislatures set standards, it is done to discourage hateful speech from being said, but the reality is that such laws cannot be effective if there isn’t a unanimous agreement on what is offensive or hateful. The lack of unanimity will create confusion and give the wrong message on what is allowed, not stop discriminatory speech, and thus not improve relations between different social groups and improve society as a whole.

Interfering with discussions by banning speech about sensitive topics stops conversations about issues in a society that need attention. Usually banning sensitive topics are used to refrain people from taking a single issue from a community and use it as a reason for advocating the harming of said community. It is also done to bring back memories of a horrible past that have left a cultural scar. However, banning speech under any of the reasonings creates the notion that all criticism will only lead to violence and the subjugation of that group. The Law would never allow for discussion and compromise for the benefit of everyone due to its adherence to vanilla speech. Let’s take for example a problem a sector of the public has to discuss and think of ways of solving it. The problem in question would arise due to differences in culture that may cause that sector to fall behind in society or follow customs that are incompatible with the dominant culture they know belong to. Nonetheless, the discussion can go as far as the law allows, causing the problem to go on the wayside and lost from mainstream debate. An example of this was the grooming gang scandal that was uncovered in 2018 as hundreds of young girls were raped by groups of Pakistani men. The main problem here was not the rapes themselves, but the lack of action taken by the local governments in cities such as Telford, Bedford, and Rotherham. In Bedford, a family was told they couldn’t take their daughter’s testimony as sufficient reason to investigate the case. This had happened as the police were restricted into investigating too many cases regarding “South Asian” men by the politicians in high-ranking positions for fear of appearing racist by targeting people from the same background. By restricting the arrests, officials believed that ignoring crimes would help relieve racial tensions and culture clash between the native population and the migrants the state had given asylum to during the past decade. However, by ignoring the potential difference in culture and trying to smooth-out a multicultural society, racial tensions had increased and discussions between both groups have stalled and the problem is yet to be resolved.

By banning speech, society tends to radicalize individuals who speak away from the scrutiny of the law in echo chambers. This happens as laws prohibiting speech are partially implemented to discourage people with “radical” opinions to be able to communicate with each other and amplify the message. However, the problem with this logic is that people with “radical opinions” would not just stop believing what they believe just because they can’t communicate their message: they will double down and have a greater conviction on their beliefs. Currently, a migration of users has moved into websites in support of free speech, more so in Europe. An example of this is the website Flashback founded in Sweden. On Flashback there was a mixture of people with different ideas, ranging from free speech advocates to Nazis, but mainly the latter. The problem with this balance was that the website soon radicalized as there were few people discussing with the Nazis and questioning their beliefs, thus creating an echo chamber. Evidence of radicalization was clear in the manner members of the forum spoke. When talking about members of the groups, they used the pronoun “we” as their speech had collectivized from their initial statements using “I” when giving their own opinion. On the other hand, whenever migrants were discussed, the conversation included “illiteracy”, “they” and “parasites”, but worsened to include “apes”, “devil”, and “packs”. By banning speech on platforms enforcing offensive speech laws, individuals became even more radicalized as they sat in an echo chamber with no one to argue with their ideas. At the same time, if the laws become restrictive enough, they would incentivize discussions to not only move onto other platforms but underground and outside of the public eye. By segregating society by what is discussed, individuals cannot talk to the radicalized individuals and bring back those beginning to be radicalized from the brink. This would inevitably happen as both types of people would be in different platforms and by discussing sensitive topics would constitute hate speech, thus creating more radicalized individuals and leaving those with counter-arguments no way to communicate.

Laws banning offensive or hate speech are by design laws discouraging and such speech from the discussion and removing those ideas from the public conscience. The implementation of the laws themselves is done to reduce tensions between groups and avoid creating toxic environments that lead to hate crimes. Some of these toxic environments were the neo-Nazi groups gaining notoriety in the United Kingdom during the first half of the 20th century and the rise of the English Defense League during the past decade. Both groups started as nativist groups that began to defend the nation-state by advocating hate against the Jewish population and the refugees that the country had taken in. Both groups stand out as main cases in research about hate crimes that began in the 1990s and led to the creation of the Crime and Disorder Act in 1998 and the Criminal Justice Act in 2003. Another example is the Darren Osbourne case as he had murdered a Muslim man and injured others in the process after viewing “extreme far right” content. Based on the hate crime record, it is not hard to see why hate and offensive speech laws are enacted as they seem to be a reaction to radicals advocating for hate by using their freedom of speech. However, as mentioned before, hate speech legislation is done on the assumption that if hate is tolerated, hatred towards groups will be normalized and come in the form of violence. Part of the argument is based that people will become hateful without an opportunity at redemption. A clear example is Tommy Robinson, one of the founders of the English Defense League. His rhetoric started as very islamophobic and hateful until overtime, when he was exposed to different views, he began to change from an agitator to an activist criticizing radical Islamists. This happened as he engaged in conversations with the Quilliam Foundation, an Islamic organization advocating for peace, led to Tommy to change his radical views on Islam and leave behind his nativist position. Discussion and debate had deradicalized Tommy and now he uses his effort to call out injustices in society, such as the grooming gang cases in Rotherham. On the other hand, we have Count Dankula’s case where he was arrested for being offensive over a Nazi joke. Instead of fining him for black humor, he should have been allowed to speak and ridicule the Nazis actions. By doing so, speech in the form of jokes can help make light out of a sensitive topic and delegitimize hate speech by making it the butt of the joke.

In looking at how free speech should be, it is important to understand that speech should not be censored even if it touches a cultural nerve or it is used for hateful purposes. Banning speech for being hateful or offensive would lead to an unclear set of standards that will not stop hate, burdens in solving issues in society that need attention, and radicalization within echo chambers created by deplatforming. Instead of banning discussions, more speech should be allowed so that hate speech can be debated and debunked. Not all radicals would be able to listen and change their beliefs, but we can deradicalize people on the fence that have not heard all the arguments on both sides.