Equality 'Trumps' Unlimited Free Speech: We Must Stop the Haters

11/12/2015 09:50 GMT | Updated 10/12/2016 10:12 GMT

Donald Trump's latest diatribe will lead to aggression from bigots and retaliation from extremists. It will generate fear amongst moderate Muslims and provide propaganda for extremists.

Hate speech of this sort tends to provoke two key reactions amongst commentators. The left will express outrage and will demand punitive steps. The right will condemn the words but wholeheartedly defend the right to say them. Free speech, they will argue, is a liberal value we must protect regardless of how unpleasant it makes us feel. "We will overcome their hate with our own logic", they will assure us. Some will reference Nazi Germany, Communist China or George Orwell's 1984 to outline the type of future hate speech legislation promises.

I am proud to live in a country that legislates against hate speech, and believe that we must continue to do so. Drawing on the excellent 'The Harm in Hate Speech' by Jeremy Waldron, the next few paragraphs explains why.

1. Equality is important too. Free speech is an essential liberal value, but it is not the only value we must protect, nor is it always the most important. There are many examples where other values take precedence, often without a second thought. We protect people from defamation, physical harm and sexual abuse by limiting speech that is libellous incites violence or promotes paedophilia. I believe protecting against hate speech, under the banner of equality and inclusivity should be no different. In a civilised democracy which champions equality, all of its members should feel welcome to contribute equally regardless of their gender, race, religion or sexual orientation. The freedom to express hate speech against minority groups without recrimination directly challenges that value.

Some may argue that speech is not as damaging as violence and therefore not worthy of legal protection. But to think this would be to ignore our evolutionary reliance on the good opinion of others, as well as the stacks of evidence that highlights the impact of negative opinions on our wellbeing. There are countless cases of gay and disabled people taking their lives due to bullying. Following acts of terrorism, there are many reports describe Muslims too scared to go about their everyday lives.

Laws against hate speech are essential both as a preventative measure and as a statement of support to those affected. They say that our society does not support the haters. Hate speech laws allow minority groups to go about their lives with confidence, to contribute in the workplace, the local pub or the classroom as an equal. Absence of state protection derails this assurance, creates uncertainty and generates distrust and divisiveness.

Of course, this rationale does not overcome all of the arguments against hate speech legislation. I've tackled some of these in the remainder of this post.

2. "Hate speech legislation forces debate underground". A common argument is that legislation forces distasteful views underground and prevents the necessary debate needed to convince the haters they are wrong. I see two obvious flaws in this argument. First, it assumes that the haters are open to debate. But as people who are already adopting non-mainstream views, it is unlikely that the consensus opinion is important to them. Think Nick Griffin and Donald Trump for likelihood of changing their point of view after reasoned debate. If you have engaged in endless debates with bigots on Twitter (as I have) you will know that clean outcomes are a rarity. Their natural confirmation bias draws on cherry-picked statistics and anecdotes for conclusions.

The 'underground' argument assumes that haters' views are rationally generated, when it is likely they are anything but. Studies show that people hold extreme views do so in retaliation to a mainstream society that has rejected them. Aggressive views against minority groups are an attempt to seek significance. Correcting a bigoted view would mean loss of significance and our natural instinct for self-protection makes this unlikely.

As a final caveat, no one is actually suggesting people's opinions should be moved completely out of sight. The majority of hate speech legislation provides the opportunity for sensible debate in a controlled environment. So if the desire for a civilised argument exists, then it does not need to stay underground.

3. "Hate speech legislation is pandering to political correctness". Another common argument is the slippery slope effect of hate speech legislation. Many will attribute it to 'political correctness gone mad' or driven by 'the constantly offended'. Others will argue that offence and hate are subjective, so legislation against it will lead to a deluge of litigation.

The definition of hate speech should not be based on the degree of hate or offence felt by perpetrator and victim. Aside from being subjective, neither is necessarily indicative of wrongness (a slave and slave-owner may feel neither for example). Hate speech should be defined objectively by an elected legislature, supported by an experienced judiciary, using social norms as a benchmark. It should seek to protect against instances of group libel that clearly threaten minority groups' ability to live in dignity - for example posters that say 'all Muslims are terrorists'. It should be restricted to instances that are clearly designed to stir up hatred, that are divisive and have no societal benefit. Its precedent would also be considered - avoidance of excessive litigation would be a necessary check against over-protective legislation. Yes, there will be grey areas, but our skilled judiciary are used to making these sorts of judgements for a number of other laws. This need be no different.

4. "Allowing hate speech is progressive". A further well-used argument pedalled by the right is that by allowing hate speech we are creating a free-market of ideas, which will lead to more progressive thinking. But, as with the free market of capital, progress is far more likely to be made with regulation. When all members of society feel that they are able to contribute equally, there will be a more positive environment to contribute to. Compare a workplace with bullying to one where everyone's view and role is respected. Which is most effective?

We are lucky that unlike in the US, the UK already legislates against hate speech, but we must not allow eloquent right-wing commentators to water it down. If we allow hate speech without recrimination then we must abandon our boast of being a fair and equal society. I guess it all comes down to the type of society we want to live in.