Enough is enough: it’s time for America to adopt hate speech laws


The facts are clear: freedom has nothing to do with America’s narrow conception of “free speech.”

According to the Bureau of Justice Statistics:

  • U.S. residents experienced an average of 250,000 hate crime victimizations each year from 2004 to 2015.
  • There was no statistically significant change in the annual rate of violent hate crime victimization from 2004 to 2015 (about 0.7 per 1,000 persons age 12 or older).
  • The majority (99%) of victims cited offenders’ use of hate language as evidence of a hate crime.
  • During the 5-year aggregate period from 2011-15, racial bias was the most common motivation for hate crime (48%).
  • About 54% of hate crime victimizations were not reported to police during 2011-15.

The problem is worsening, and the ascendance of Donald Trump appears to correlate strongly.

The FBI, in a report released Monday, said law enforcement agencies nationally reported a five-year high in hate crimes, with 6,121 in 2016. That’s up over 2015, which saw 5,818 such crimes reported, a near 5% increase.

Also of note was the steady increase in hate crimes over the year that were also likely related to the campaign. Trump campaign rallies were regularly marked by violence and reports of an increase in bias incidents at K-12 schools started during the primaries.

Make America White Again

The Southern Poverty Law Center catalogued more than 1,000 “reports of swastikas at schools, racist taunts, and other hate-fueled attacks and acts of intimidation” in the first month after Trump won the 2016 election. 

In sum, it’s hard, if not impossible, to construct a rational argument that America doesn’t have a severe hate speech problem. Some contend this, too, shall pass, but others among us are justifiably uneasy about waiting and hoping.

A person unfamiliar with US history and culture might find curious the fervor with which we defend the “right” to corrosive hate speech.

In fact, most of what we consider hate speech — slurs, insults, and provocations — are shielded from bans and punishment by the First Amendment, rendering ours the world’s most protective standard for hate speech… A neo-Nazi salute is illegal in Germany but permitted here. Thirteen out of the European Union’s 28 countries ban Holocaust denial, a viewpoint that’s perfectly legal in the United States. Whereas many Muslim-majority countries ban depictions of the Islamic Prophet Mohammed, such cartoons can be published here.

This position, of course, derives from our interpretation of the First Amendment to the Constitution, which expressly forbids Congress from “abridging the freedom of speech…” Many Americans regard the 1A as the foundation for our freedom and believe fervently in the right of anyone to say anything, however objectionable. While many citizens loathe the American Civil Liberties Union, its mission comes very close to embodying our unbending ideology around free expression.

This isn’t to say the right to expression is absolute. 

Although different scholars view unprotected speech in different ways, there are basically nine categories:

  • Obscenity
  • Fighting words
  • Defamation (including libel and slander)
  • Child pornography
  • Perjury
  • Blackmail
  • Incitement to imminent lawless action
  • True threats
  • Solicitations to commit crimes

Some experts also would add treason, if committed verbally, to that list. Plagiarism of copyrighted material is also not protected.

But does “freedom” really hinge on an extreme view of allowable speech? Here the issue gets complex.

Let’s start by understanding that hate speech laws are widespread around the globe. More than 30 nations, in fact, legislate in some measure against “speech which attacks a person or group on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability, or gender.” (We’d probably expect the number to be much higher if we factored in Islamic strictures against “blasphemy.”)

In the law of some countries, hate speech is described as speech, gesture or conduct, writing, or display which is forbidden because it incites violence or prejudicial action against a protected group, or individual on the basis of their membership of the group, or because it disparages or intimidates a protected group, or individual on the basis of their membership of the group. The law may identify a protected group by certain characteristics. In some countries, hate speech is not a legal term and in some it is constitutionally protected.

Which nations are we talking about?

  1. Australia
  2. Belgium
  3. Brazil
  4. Canada
  5. Chile
  6. Council of Europe
  7. Croatia
  8. Denmark
  9. Finland
  10. France
  11. Germany
  12. Iceland
  13. India
  14. Indonesia
  15. Ireland
  16. Japan
  17. Jordan
  18. Malta
  19. Netherlands
  20. New Zealand
  21. Norway
  22. Poland
  23. Romania
  24. Russia
  25. Serbia
  26. Singapore
  27. South Africa
  28. Sweden
  29. Switzerland
  30. United Kingdom
  31. United States

A couple quick notes. First, no, these aren’t all apples to apples – there are some significant cultural differences that render a few less relevant than others. Second, regarding the US, it’s highly ambiguous as a result of our Constitutional and judicial history.

That said, it’s clear speech codes aren’t the exclusive domain of radical, repressive regimes. A number of the world’s leading democracies are included here.

However, we’re all aware of how the ideology of American exceptionalism operates. With many American supremacy in all areas is utter dogma, and the reasoning more or less approximates “America is the greatest because America is the greatest.” We hear Asia denigrated. We hear “Old Europe” dismissed. And “shithole” countries in places like Africa are non-starters.

If the hate speech argument wants to avoid being disregarded as biased, and perhaps even “liberal,” we might to seek out a more objective voice on what constitutes freedom and where the US stands in the world.

Cato and the Freedom Index

Cato Institute Freedom IndexEach year the Cato Institute releases its “Freedom Index,” which ranks nations on both personal and economic liberty. Their relentlessly Libertarian view of freedom – “negative freedom” – follows Locke’s principle that the individual should be free of restraint. The personal freedom index specifically contains “two equally weighted parts”:

The first is legal protection and security, made up of Rule of Law and Security and Safety. The other half of the personal freedom index is made up of specific personal freedoms: Movement; Religion; Association, Assembly, and Civil Society; Expression and Information; and Identity and Relationships.

Perhaps startlingly for many (but not at all for others) the most recent Cato analysis ranks the United States 24th in the world. The top 30 are:

  1. Norway
  2. Finland
  3. Austria
  4. Netherlands
  5. Denmark
  6. Switzerland
  7. Luxembourg
  8. Sweden
  9. New Zealand
  10. Germany
  11. Australia
  12. Belgium
  13. Ireland
  14. Canada
  15. Portugal
  16. United Kingdom
  17. Slovenia
  18. Estonia
  19. Iceland
  20. Taiwan
  21. Czech Republic
  22. Malta
  23. Japan
  24. United States
  25. Poland
  26. Hong Kong
  27. Korea, Republic of
  28. Spain
  29. Slovakia
  30. Lithuania

24th – a damning comment on the nation that regards itself as “the leader of the free world.”

To fully appreciate our low ranking, though, it’s important to understand who the Cato Institute is. In their own words:

The Cato Institute is a public policy research organization — a think tank — dedicated to the principles of individual liberty, limited government, free markets and peace. Its scholars and analysts conduct independent, nonpartisan research on a wide range of policy issues.

More interestingly:

It was founded as the Charles Koch Foundation in 1974 by Ed Crane, Murray Rothbard, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries.

Yes, that Charles Koch – the 11th richest man in the world and one of the primary benefactors of the Republican Party. In the 2016 election his organization spent nearly $900 million supporting conservative causes and candidates. In many ways it’s hard to imagine a person or an organization more fundamentally conservative than Koch or Cato.

There is every opportunity to quibble with the report’s definition and interpretation of “personal freedom” – we know how skewed and utterly paranoid the conservative view can be when it comes to, say, religion, so your mileage may vary, as they say.

Nonetheless, the assertion that the US has significant personal liberty issues, coming from this quarter, is not to be ignored.

What does this all have to do with hate speech?

In a nutshell, all this evidence suggests America is in no position to claim a moral high ground on what is and is not freedom. If I’m interpreting the data correctly, each of the nations with hate speech laws ranks ahead of the US on personal freedom. (If I’m not interpreting the data correctly, please let me know.)

I know, or have known, people from most of the nations that rank ahead of the US and the Cato findings wouldn’t surprise them. The average Brit, German, Austrian, Brazilian, Canadian, Swede, etc., would be stunned to learn that he or she was less free than an American.

In other words, ideology notwithstanding, it’s hard, if not impossible, to argue that personal freedom is incompatible with the existence of hate speech codes.

In fact, viewed practically, it seems evident that hate speech contravenes even the Cato Institute’s narrow definition of liberty. A broad tolerance of bias and intimidation along racial, religious, gender and other grounds diminishes the possibilities available to the discriminated classes. How can a member of a racial minority be expected to get ahead economically in a society that has normalized language asserting that said minority is lazy, unintelligent and untrustworthy? In what sense is a gay citizen free when he/she can be denied housing based on sexual preference?

How can a society that embodies a de facto (or de jure) class structure be said to be “free” in any sense of the word?

From this perspective, a nation that tolerates (and in our case, even fetishizes) hate speech isn’t just permitting some level of unofficial discrimination, it has literally encoded oppression in its legal DNA.

“Stochastic” Terror Speech

Let’s go back to the earlier question of speech that isn’t protected. Specifically let’s look at:

  • Fighting words
  • Incitement to imminent lawless action
  • True threats
  • Solicitations to commit crimes

As it stands today, hate speech can’t really be banned according to most interpretations of these standards. Generally speaking, there is usually no immediacy – ie, the threat isn’t imminent. If we denigrate Mexicans, for instance, and a few months down the road someone beats up a Mexican migrant worker, it’s hard to connect the dots. Causality is nearly impossible to prove.

We therefore need to adopt a wholly new way of viewing the relationship between speech and action.

“Stochastic terrorism” is an emerging concept that those crafting hate speech codes in the US will need to consider. From Dictionary.com:

stochastic terrorism
[stuh-kas-tik ter-uh-riz-uh m]

the public demonization of a person or group resulting in the incitement of a violent act, which is statistically probable but whose specifics cannot be predicted:

The lone-wolf attack was apparently influenced by the rhetoric of stochastic terrorism.

In essence, the theory establishes the importance of hate speech in creating a toxic culture which makes hate-based violence more likely. G2G explains it this way:

Stochastic terrorism is the use of mass communications to incite random actors to carry out violent or terrorist acts that are statistically predictable but individually unpredictable. In short, remote-control murder by lone wolf. [emphasis added]

That italicized segment – statistically predictable but individually unpredictable –  represents the core of the challenge. In a legal system such as we have right now, you could never get a conviction for inspiring hate crime. Say a conservative pundit routinely demonizes gays, and at some point one of his/her listeners murders a gay couple and is found to have all of the pundit’s books. The killer even admits that he was influenced by the pundit.

Still, there will be no criminal charges against the media hatemonger. In the modern US, there is a zero percent chance of conviction (although, a civil case could get interesting). In the end, a citizen exercising his/her First Amendment rights can’t be held accountable for the actions of a disturbed “lone wolf.”

This is what occurs when Bin Laden releases a video that stirs random extremists halfway around the globe to commit a bombing or shooting.

This is also the term for what Beck, O’Reilly, Hannity, and others do. And this is what led directly and predictably to a number of cases of ideologically-motivated murder similar to the Tucson shootings. As of this writing, there is no evidence to link Jared Loughner to a specific source of incitement; but some of the other cases can be clearly linked.

The stochastic terrorist is the person who is responsible for the incitement. For example they go on radio or television and stir up hatred toward a particular person or group.

Statistically predictable but individually unpredictable.

Robert DearConsider the November 2015 Colorado Springs attack by Robert Dear, who described himself as a “warrior for the babies.” He was found delusional and incompetent to stand trial.

But how did all those ideas get in his head? That’s a rhetorical question, of course – unless this is your first trip to Earth you’re well-acquainted with the last two generations of anti-abortion vitriol manufactured by the far right.

Not long after this attack, my colleague Bonesparkle considered the role of stochastic terrorism in the crime, and reflected on the recent GOP presidential primary debate.

The “Planned Parenthood sells baby parts” hoax has been repeated over and over by cynical, pathologically dishonest politicians pandering to “low-information voters” (a charitable euphemism for “willfully and gleefully ignorant”), with Rubio and, even more famously, Fiorina (whose performance in the first GOP presidential debate played like a Joe Isuzu commercial), being front and center right now.

When you incite to crime, when you tell inflammatory lies designed to stir up anger amongst a hateful and lackwitted audience, it’s only a matter of time before one of them – or more – take matters into their own hands.

Like Robert Dear did this week.

So, to my questions.

First: Are Rubio and Fiorina (and a horde of their co-conspirators) going to be prosecuted for murder?

I know, I know. That was a rhetorical question.

Second: Shouldn’t they be?

This is one isn’t rhetorical at all. When murder happens because you wound up the killer with a pack of inflammatory, demonstrable falsehoods, you’re holding the gun as he pulls the trigger.

In Summary

Let’s take a quick moment to pull this all together:

  1. hate speech is widespread and increasing in frequency
  2. many countries have laws against hate speech
  3. these countries all rank higher than the US on the Cato Institute’s Freedom Index…
  4. …meaning restricting hate speech doesn’t diminish freedom in a society
  5. the right to free speech is already restricted in several ways
  6. the main difference between current restrictions and a proposed hate speech code revolves around imminence
  7. hate speech creates an environment where violence against targeted groups is statistically probable

The damage done by hate speech is more than evident by now, and there can be no rational argument about the value of eliminating it from our culture.

It’s too late for the “greatest democracy on Earth” to lead, but it’s high time we at least followed those with a more developed sense of freedom than us.

Enacting hate speech laws won’t decrease freedom in America. It will increase it.

The time is now.


  • Can’t agree. The sword has two edges.

    If enacted, they will be used by the Right to suppress voices opposed to various kinds of fascism

    They will get LBGT advocacy classified as hate speech because it’s “anti-Christian”
    Same thing with the assertion that evolution is a fact.
    Same thing with advocating for a wall between church and state.
    Same thing with advocating reproductive rights.

    • As I told another commenter on FB, all these criticisms need to be unique to the proposal. None of them are. Everything you describe is already in play.

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