A case for free speech absolutism in Europe
Imagine a world in which a teenager sharing a rap lyric on social media could be prosecuted for hate speech. 'Not in our lifetimes, surely,' you think; 'we have laws to protect against such things'.
No. Earlier this week, the British court system did just that, charging nineteen year old Chelsea Russel with sending a grossly offensive message when she posted lyrics from Snap Dogg's "I'm trippin" to mourn the death of Frankie Murphy, a thirteen year old who was struck by a car two years before the instagram post. Chelsea's sentenced has passed: she is now subject to a fine and a curfew, forced to wear an electronic ankle bracelet.
With this sentence, the British have set a dangerous legal precedent, one that is not unknown to other European countries. Indeed, more and more, contextualization is discarded in the sentencing of hate speech crimes. Intent is immaterial, it would seem; it is enough that someone might, possibly, take offense at your words: in the ruling, district Judge Jack McGarva said: “There is no place in civil society for language like that. Everyone with an Instagram account could view this content. The lyrics also encourage killing and robbing, so are grossly offensive.”.
The slippery slope that such a precedent creates is easy to foresee, and should be concerning to all: This was far from an isolated case, and the United Kingdom is not the only country exhibiting such censorious intent in Europe, where the protection afforded to citizens with regards to free speech aren’t nearly as powerful as that of the United States’ First Amendment.
It cannot be stressed enough that such precedents are terrifying. You may believe that Chelsea’s sentence wasn’t all that bad. I would argue that any sentence is profoundly disturbing.
Free expression is -you might have heard- one of the most important rights there is in a democratic society; it is essential that it remains unhindered as much as possible, as any limitation to it always carries grave consequences.
I will say this outright: I am a free speech absolutist, which means that at most, threats of violence or inciting violence are the few and far between cases where free speech ought not to be protected. As I see it, these cases are less about speech itself but about violence, which is already considered a crime.
Free speech legislation is at odds with the spirit of criminal law at large. It removes the specific context that usually is taken into account when prosecuting a crime, it is demonstrably more subjective in nature because offense itself is a subjective matter, and goes so far as damaging the presumption of innocence that should be integral in a court of law.
Hate speech laws are grounded on the inherent assumption that offense in speech can be objectively determined. Lawmakers and judges must agree on that premise, which has dire implications. Speech may lead to violence, granted, yet tackling speech for what it may bring about sets a dangerous precedent for essential civil liberties; hate speech laws also fail to meet the standards of law that democratic societies should uphold.
Offense is not objective; what is offensive to some may not be to others. A court would have to preemptively concur with the offended party that the speech at hand is indeed offensive, albeit subjectively. Then, context matters not, the words themselves are hurtful and offensive, and thereby criminal.
If we compare such practices to hate crimes, the law seems to rest on quite the opposite reasoning: a crime becomes a hate crime because of the context, the intent: the fact that a crime was committed on someone for belonging to a specific group is what differentiates it from a regular crime. Thus, hate is an aggravating circumstance of an already existing crime; hate speech on the other hand implies that the hate itself is the offense.
This is untenable within the purview of criminal law. With due process and the presumption of innocence in mind, justice cannot and should not side automatically with an alleged victim from the very start of an investigation, not without severely contradicting the very principles that grant justice its legitimacy.
That one may feel offended cannot be a basis for law, it is much too broad in application, since there will always be something that offends someone. Laws ought to have objective application -this is after all the very essence of the rule of law, the implicit agreement that the laws of a given country apply equally and fairly to all its citizens. The rule of law creates a sacred trust between the people and their government -it is thus not just a matter of legal coherence but of the stability of the system as a whole. If this trust is breached in favor of adhering to the mores of a given time, the wants of a given group, no good will come of it in the long run.
Criminal law works for the most part on the basis of accurate qualification of a given crime -we have several precise categories for the different acts of killing another person, for instance, dependant upon intent, premeditation, and so forth- to which speech does not seem to be amenable. A play about slavery in the Americas would likely not be considered hate speech regardless of how offensive it may be in its portrayal of the topic; neither would a heated discussion of the crusades or the Islamic slave trade, even though it would likely not be kind to religious sentiment. The line between speech, offensive speech, hate speech is not quite as discernible as that between manslaughter and first degree murder.
In the same way that we reject policies that clearly target certain groups because they bear a clear ideological taint (for instance, the thinly veiled anti-veil laws or the controversy in France surrounding a decree banning burkinis on the beach) so should we be wary of laws censoring speech because more often than not they are indeed emerging from ideological grounds.
That free speech should be met with as few limits as possible is not just a matter of judicial practice, of course. The spirit of such laws itself is not served by their existence. Policies like these will not and cannot stop hate, they can at best silence those who spew it but do not make them disappear. It is not enough to create a framework that essentially drives such people out of public sight -and therefore as the saying goes, out of public mind. In fact, it may very well be that those whose hatred is stifled simply bottle it up until such time as it inevitably erupts in something much worse than words.
Speech and thought are correlated. Carl Jung at the beginning of the last century wrote at length on the topic and already at the time he was far from alone in his assessment; today, controversial psychology professor and clinician Jordan B. Peterson echoes this assertion. We use our speech in order to properly think, it is an integral part of the process that allows us to formulate coherent ideas, and eventually to integrate these ideas into our actions in the world. If speech is hindered, by that logic, so is thought. If the minds of the hateful cannot be known and contended with, because societies impose bans on the expression of hate, they will never be able to alter their perspective, will never be made to see that their hate is misguided. Thus, it would likely be more productive to combat hate speech with speech itself. At any rate, it is probably for the best if instead of silencing hatred, we allow it to be made clear; though this may propagate it somewhat, it is always better to know who the ‘haters’ are than to either be oblivious or ignorant of them.
What should be rightly feared is the slippery slope that any free speech policing may lead to. Recent years have shown that political upheaval is never out of the question, and because of this I must ask: Can we say with the utmost certainty that the tools we have created to limit speech can never be used with ill intent? Were a tyrannical government to suddenly take over in complete respect of the democratic process, how much harm could these tools do? The potential for increasing limitations, for utter liberticide, is seemingly endless.
It is at best naive to assume that such protective legislation will necessarily turn out for the best, and at worst indicative of hubris, symbolic of a belief that the political system will remain stable and will never fail. Hate speech laws are not alone at fault in this, one may see the recent enshrining, in France, of certain state of emergency provisions into regular law through the same prism.
Laws against certain speech do not stop the problem that they set out to solve and are altogether detrimental to the well-being of a democratic society. The state should not have this power, because there may come a time when the state will use it against the very people who believed that giving it said power would be helpful. Rather, social repercussions ought to be sufficient punishment for hateful speech. Ostracism, financial ruin, public shame, in short opprobrium: these are the tools of a democratic society, and they are not without weight. This is more than enough.
To paraphrase an apocryphal Voltairian sentiment, if we value our own expression, we must fight tooth and nail for the free expression of all, most importantly those with whom we quarrel and are at odds in whatever way that may be. Should we fail to protect such a basic, essential freedom, should we desire to restrict it further, we would have thereby restricted the free expression of all, our enemies, our friends, and ourselves.
Chelsea's ill-fated post serves as a stark reminder of the delicate balance we must strike between justice and freedom, and how easily good intentions can pave the way to deepening oppression. If we insist on creating the means of tyranny for our own sake, we should not be surprised when, at a later point, that selfsame tyranny is enacted against us.
Because we live in democracies we do not have the luxury of relinquishing such core rights -that is, if we wish to keep living in democracies.