I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, November 02, 2006

The fruits of hate speech laws

I've written previously about the dangers and evils of the type of "hate speech" laws prevalent (and growing) in Europe and Canada. Aside from the intrinsic injustice of people being punished by the State for their opinions and ideas, vesting the power in political officials and prosecutors to punish people for the ideas they express inevitably leads to things like this:

A human rights group campaigning for gypsies has filed a complaint against British comic Sacha Baron Cohen over his "Borat" film featuring a spoof Kazakh journalist who calls himself a former "gypsy catcher," German prosecutors said.

The state prosecutor's office in the northern city of Hamburg said the European Center for Antiziganism Research had brought the complaint accusing Cohen of slander, inciting violence against the Sinti and Roma gypsy groups and violating Germany's anti-discrimination law. . .

The organization noted in a statement last month that violent crimes by right-wing extremists had risen this year by 20 percent and called it "irresponsible" to tolerate the racist jokes made in the film.

People who advocate these laws somehow convince themselves that if they give the power to the government to prosecute people for expressing "hateful" or dangerous ideas, those laws will only be applied against ideas that they dislike. But that is never how laws work. And it is particularly mystifying to me that anyone who has watched our current administration and its followers in action, seizing every power they can get their hands on in order to control information and criminalize dissent, would think that it is a good idea ever to allow the government -- any government -- to punish people for their ideas and comments.

It is not uncommon for individuals and groups in Europe and Canada to be criminally punished by the State for expressing all sorts of prohibited ideas. Punishment is meted out for ideas that are deemed by prosecutors or other bureaucrats to be anti-gay, anti-Muslim, racist, or just vaguely "hateful" or "discriminatory." And the punishment under these European and Canadian laws is triggered not by some threatening behavior or act of physical provocation; it is imposed exclusively for the expression of ideas which the State has decided ought to be outlawed and criminalized.

Just as Bush followers seemingly never stop to think about the fact that the limitless powers they are eager to vest in their Leader might one day be wielded by a President who is hostile towards them, advocates of hate speech laws always think that the power to punish "hateful" opinions will only be wielded in benevolent ways in order to punish the opinions they think are dangerous. For some reason, the thought doesn't seem to occur to advocates of these laws that if the State is given the power to deem certain ideas to be so "wrong" or "dangerous" that they should be outlawed, the ideas these advocates like may very well one day make its way onto the prohibited list. Who would ever trust government officials or majorities of citizens to create lists of Prohibited Ideas?

In the last century, the U.S. had numerous such laws -- principally aimed at those who espoused Communism -- but they were struck down by a series of Supreme Court cases. As Justice William Douglas explained, laws which allow the government to criminalize particular ideas on the grounds that they are dangerous or hurtful "lead to standardization of ideas either by legislatures, courts, or dominant political or community groups." It isn't the ideas that are "dangerous" that will be outlawed, but rather, the ideas that the majority hates most. And those aren't always the same thing. As Justice Black warned when examining laws in the U.S. designed to outlaw the Communist Party:

I do not believe that it can be too often repeated [ed.: I agree, hence this post] that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish. The first banning of an association because it advocates hated ideas -- whether that association be called a political party or not -- marks a fateful moment in the history of a free country. . . .

The same arguments that are used to justify the outlawry of Communist ideas here [ed.: or "hateful" speech in Europe] could be used to justify an outlawry of the ideas of democracy in other countries. . . The weakening of constitutional safeguards in order to suppress one obnoxious group is a technique too easily available for the suppression of other obnoxious groups to expect its abandonment when the next generally hated group appears.

One of the tricks which all governments use when they seek oppressive powers is to justify the power by first using it against particularly reviled individuals, so that hatred for the individual drives people to endorse the power being used against them. When the Bush administration wanted to obtain the power of unlawful detention of U.S. citizens, they first vigorously branded Jose Padilla as the "Dirty Bomber" so that everyone would focus on the evil of Padilla and therefore acquiesce to the powers to be used against him (who would oppose the detention of someone who wants to detonate radiological bombs in our cities?). When the Bush administration wants to justify torture or infinite detention or warrantless eavesdropping or black prisons, it does so by hyping on the evil of Khalid Sheikh Mohammad (who would oppose detention and surveillance of the 9/11 mastermind?).

And those who want to justify hate speech laws do so by focusing on the evils of the "discriminatory" or bigoted speech they want to outlaw (who would oppose punishment of racists and Nazis and other assorted bigots?). But to endorse a government power due to one's hatred towards the individual against whom it is being exercised is, by definition, to endorse the government power generally. And the power that ends up being endorsed is never confined to those initial, emotionally appealing cases, but instead always expands.

It is always unconscionable for the government to punish people for expressing an idea merely because government officials -- or the majority of citizens -- decide that those ideas are "dangerous" or "wrong." That is a power nobody ought to possess.

But even leaving aside the inherent wrongness of that censorious power, the dangers of allowing the State to punish the expression of ideas -- which virtually every government in Europe, along with Canada, now possesses (and which this administration clearly desires) -- will always be far greater than the "benefits" anyone thinks can be obtained by such suppression. Like most government powers, the suppression power will never be confined to the "good cases" which its advocates envision. Ask Borat.


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