I have been asking this for quite some time. Because Canada is becoming an at times creepy place with regards to language police, I have posited this question of what exactually is considered “hate speech.”
The only answer I can give is that any speech that incites violence is a strong limit. This cannot include “words are violence”, or “hurty words.” Hate speech would be inciting others to physical violence on another.
I think it is often impossible to assess whether a statement involves 'hate' or not. 'You are an imbecile' could be a statement of fact or an expression of hatred ( or both). In any event the law should not be troubling itself with this! In the face of the alarming approach to free speech by the current Labour government I am continually quoting Lord Justice Sedley in Redmond-Bate v Director of Public Prosecutions [1999] EWHC Admin 733:
'Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers' Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear.'
The dictionary gives a pretty complete answer to what hate means. Loathe seems the best of many synonyms. The intention to destroy could be the deciding element.
Agreed. "Hate" seems clear. But "hate speech" isn't. And if governments seek to legislate against this inevitable human emotion, shouldn't they clarify what they mean?
Could there be something about going beyond the reasonable limits of expressing an antagonistic position? I appreciate that reasonableness is a tricky one!
Thanks, Andrew, another brilliant piece with an interesting challenge at the end.
Trying to define "hate" reminded me of Mark Twain's famous observation that "a classic is something that everybody wants to have read and nobody wants to read". In the same way, hate is something that we all claim to instinctively recognise but very few, if any, can actually articulate what it means. That's not a problem except when it is put into legislation with accompanying penalties for breaching it. The legislative process is underpinned by a number of robust and longstanding core principles. The main ones are that the process should end in legislation that is clear, certain and consistent so that those who implement it and those who are affected by it know exactly what the legislation means. That's why all legislation has an Interpretation or Definitions section at the beginning of each Bill/Act where the key terms are defined. It is not enough to say "we all know it, when we see it". That approach represents fuzzy ideas and sloppy articulation.
And. at a personal level, may I be permitted to say that when I was young, I wore glasses all the time and some boys would shout "four eyes" at me. Was that hate speech from them. I certainly regarded it as hateful. Maybe, therefore, children wearing glasses should be a protective category so that our feelings aren't hurt. Yes, I'm being very silly but then society has become very silly.
One Dutch X user preposterously claimed "I know what hate is when I see it"....
Hate speech can't be objectively defined since it's pretty much in the eye of the alleged recipient.
And, fun fact regarding your German example: in the 1930s three Dutchies were prosecuted in The Netherlands for insulting a "befriended head of state". The head of state in question was Hitler...
This is a superb compendium of examples of the problem with defining "hate speech." I will definitely save this for reference when the topic comes up.
This led me also to look back at US law on the issue of "hate speech." Now, I am not an expert here--so please do correct me if I have missed/misinterpreted something, but from what I see, Walz and Kerry are both way off the mark.
The pertinent US law that I find is 18 USC 249, "Hate Crime Acts." Below are some excerpts, and a link. Striking to me is (1): these laws appear to be directed only to violent ACTS motivated by hate, not speech; and (2) there is a fulsome section on statutory construction that explicitly protects free speech and expression with the sole exception that "The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence." (I read this as using the Brandenburg v. Ohio standard.)
Here are excerpts from the law, and a link, for anyone who has has nothing better to do on a fine Saturday :):
18 USC 249 Hate Crimes (excerpts)
(a) IN GENERAL.—
(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN.—Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a fire-arm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—
(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY.—
(A) IN GENERAL.—Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—
CONSTRUCTION AND APPLICATION.—Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person’s exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended
to—
‘‘(A) plan or prepare for an act of physical violence; or
‘‘(B) incite an imminent act of physical violence against another.
‘‘(4) FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.
‘‘(5) FIRST AMENDMENT.—Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.
‘‘(6) CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.
'A speech or address inciting hatred or intolerance, esp. towards a particular social group on the basis of ethnicity, religious beliefs, sexuality, etc.'
Some linguistic mission creep happening here, I think. (See below). The 1938 example refers to Hitler's speeches.
1960– the earliest example for the UK is dated 2001.
'A crime, usually violent, motivated by hatred or intolerance of a particular social group on the basis of ethnicity, religious beliefs, sexuality, etc. Also as a mass noun: crime of this type.'
To me hatred is what Ukrainians feel about Russians, or Jews about Nazis. Hatred is the most extreme description of one’s dislike for another. Despise would be a close second. However I do not hate someone with a different opinion . Life wold be dreary if we all agreed with each other.
The offences in defined Sections 18 to 21 of the Public Order Act 1986 talk about "stirring up" racial hatred. "Stirring up" hatred is a concept given much wider application in the recent Scottish legislation that replaces those offences in Scottish law. (Sections 18 to 21 still apply of course in England and Wales.)
Based on that I propose the following definition of "hate speech": speech that is intended to, or is likely to, stir up hatred against a group of people defined by some characteristic, typically a characteristic such as race, sexual orientation, religion, disability or transgender identity (the precise list depends on exactly which legislation applies). This, or something like it, appears to be the underlying concept informing legislation in the UK.
The legislation also requires the speech to be threatening, abusive or insulting, though for some characteristics it's only the first 2 of these required.
I presume the thinking behind this is that stirring up hatred against a group is likely to lead to violence against members of that group and thus criminalisation of speech that stirs up hatred helps in protecting people from violence. I speculate that limiting the offences to threatening, abusive or insulting speech may be deemed necessary to mitigate the impact on freedom of speech or to identify only those cases most likely to stir up hatred.
It also seems to me there's a been tendency over time to expand the list of characteristics, and thus widen the scope of speech that can fall foul of these laws.
From Lord Justice Warby, in the appeal judgment of the Scottow V CPS case [Dec 2020]:
"The prosecution argument failed entirely to acknowledge the well-established proposition that free speech encompasses the right to offend, and indeed to abuse another."
I have been asking this for quite some time. Because Canada is becoming an at times creepy place with regards to language police, I have posited this question of what exactually is considered “hate speech.”
The only answer I can give is that any speech that incites violence is a strong limit. This cannot include “words are violence”, or “hurty words.” Hate speech would be inciting others to physical violence on another.
Yes, although incitement to violence is already illegal. So what is the purpose of "hate speech" legislation at all?
You are correct, Andrew. And really there is no purposeful way to legislate “hate speech.”
I see and hear some who say that words are violence. Perhaps this is what I was intimating? I dunno….. Tricky one.
Thanks, Andrew.
I think it is often impossible to assess whether a statement involves 'hate' or not. 'You are an imbecile' could be a statement of fact or an expression of hatred ( or both). In any event the law should not be troubling itself with this! In the face of the alarming approach to free speech by the current Labour government I am continually quoting Lord Justice Sedley in Redmond-Bate v Director of Public Prosecutions [1999] EWHC Admin 733:
'Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers' Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear.'
Dusty
Will cross post this and your other excellent 'shouting fire' piece in due course.
The dictionary gives a pretty complete answer to what hate means. Loathe seems the best of many synonyms. The intention to destroy could be the deciding element.
Agreed. "Hate" seems clear. But "hate speech" isn't. And if governments seek to legislate against this inevitable human emotion, shouldn't they clarify what they mean?
Hate means hate of course Andrew. You’re being a bit slow today. 😁
But what does hate speech mean?
Yes, exactly! But that’s what the legislators say.
Could there be something about going beyond the reasonable limits of expressing an antagonistic position? I appreciate that reasonableness is a tricky one!
We live in an age where misgendering someone is considered a genocidal act.
Expressing heterodox views or taking an antagonistic position = stage7(genocide x e^17)^2
Thanks, Andrew, another brilliant piece with an interesting challenge at the end.
Trying to define "hate" reminded me of Mark Twain's famous observation that "a classic is something that everybody wants to have read and nobody wants to read". In the same way, hate is something that we all claim to instinctively recognise but very few, if any, can actually articulate what it means. That's not a problem except when it is put into legislation with accompanying penalties for breaching it. The legislative process is underpinned by a number of robust and longstanding core principles. The main ones are that the process should end in legislation that is clear, certain and consistent so that those who implement it and those who are affected by it know exactly what the legislation means. That's why all legislation has an Interpretation or Definitions section at the beginning of each Bill/Act where the key terms are defined. It is not enough to say "we all know it, when we see it". That approach represents fuzzy ideas and sloppy articulation.
And. at a personal level, may I be permitted to say that when I was young, I wore glasses all the time and some boys would shout "four eyes" at me. Was that hate speech from them. I certainly regarded it as hateful. Maybe, therefore, children wearing glasses should be a protective category so that our feelings aren't hurt. Yes, I'm being very silly but then society has become very silly.
One Dutch X user preposterously claimed "I know what hate is when I see it"....
Hate speech can't be objectively defined since it's pretty much in the eye of the alleged recipient.
And, fun fact regarding your German example: in the 1930s three Dutchies were prosecuted in The Netherlands for insulting a "befriended head of state". The head of state in question was Hitler...
This is a superb compendium of examples of the problem with defining "hate speech." I will definitely save this for reference when the topic comes up.
This led me also to look back at US law on the issue of "hate speech." Now, I am not an expert here--so please do correct me if I have missed/misinterpreted something, but from what I see, Walz and Kerry are both way off the mark.
The pertinent US law that I find is 18 USC 249, "Hate Crime Acts." Below are some excerpts, and a link. Striking to me is (1): these laws appear to be directed only to violent ACTS motivated by hate, not speech; and (2) there is a fulsome section on statutory construction that explicitly protects free speech and expression with the sole exception that "The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence." (I read this as using the Brandenburg v. Ohio standard.)
Here are excerpts from the law, and a link, for anyone who has has nothing better to do on a fine Saturday :):
18 USC 249 Hate Crimes (excerpts)
(a) IN GENERAL.—
(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN.—Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a fire-arm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—
(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY.—
(A) IN GENERAL.—Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—
CONSTRUCTION AND APPLICATION.—Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person’s exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended
to—
‘‘(A) plan or prepare for an act of physical violence; or
‘‘(B) incite an imminent act of physical violence against another.
‘‘(4) FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.
‘‘(5) FIRST AMENDMENT.—Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.
‘‘(6) CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.
https://www.govinfo.gov/content/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap13-sec249.pdf
No doubt many Democrats would prefer more restrictive laws.
'Hate speech' (OED):
Originally U.S.
1938–
'A speech or address inciting hatred or intolerance, esp. towards a particular social group on the basis of ethnicity, religious beliefs, sexuality, etc.'
Some linguistic mission creep happening here, I think. (See below). The 1938 example refers to Hitler's speeches.
'Hate crime' (OED):
Originally U.S.
1960– the earliest example for the UK is dated 2001.
'A crime, usually violent, motivated by hatred or intolerance of a particular social group on the basis of ethnicity, religious beliefs, sexuality, etc. Also as a mass noun: crime of this type.'
'Hate' is 'A feeling of intense dislike or aversion towards a person or thing; hatred, loathing, animosity. Opposed to love .' (OED)
To me hatred is what Ukrainians feel about Russians, or Jews about Nazis. Hatred is the most extreme description of one’s dislike for another. Despise would be a close second. However I do not hate someone with a different opinion . Life wold be dreary if we all agreed with each other.
The offences in defined Sections 18 to 21 of the Public Order Act 1986 talk about "stirring up" racial hatred. "Stirring up" hatred is a concept given much wider application in the recent Scottish legislation that replaces those offences in Scottish law. (Sections 18 to 21 still apply of course in England and Wales.)
Based on that I propose the following definition of "hate speech": speech that is intended to, or is likely to, stir up hatred against a group of people defined by some characteristic, typically a characteristic such as race, sexual orientation, religion, disability or transgender identity (the precise list depends on exactly which legislation applies). This, or something like it, appears to be the underlying concept informing legislation in the UK.
The legislation also requires the speech to be threatening, abusive or insulting, though for some characteristics it's only the first 2 of these required.
I presume the thinking behind this is that stirring up hatred against a group is likely to lead to violence against members of that group and thus criminalisation of speech that stirs up hatred helps in protecting people from violence. I speculate that limiting the offences to threatening, abusive or insulting speech may be deemed necessary to mitigate the impact on freedom of speech or to identify only those cases most likely to stir up hatred.
It also seems to me there's a been tendency over time to expand the list of characteristics, and thus widen the scope of speech that can fall foul of these laws.
From Lord Justice Warby, in the appeal judgment of the Scottow V CPS case [Dec 2020]:
"The prosecution argument failed entirely to acknowledge the well-established proposition that free speech encompasses the right to offend, and indeed to abuse another."
https://www.judiciary.uk/wp-content/uploads/2020/12/Scottow-v-CPS-judgment-161220.pdf
Short, sweet, and cogent.