"Some prominent legal scholars say the United States should reconsider its position on hate speech."

Cases like this show just how bad an idea that is.

Instapundit's been covering this for a while, good to see it on the front page of the NYT.

The problem -- aside from tinkering with the First Amendment -- would be figuring out what qualifies as hate speech. Who decides?

The same applies for other forms of censorship, although it's probably best not to have the adjudicator be quite so public in his endorsement of a particular genre of expression.

Comments

[Jon]

Ed, I've blogged on the same subject, and I agree with you that censoring "hate speech" would be a bad idea for the reasons you state. I have always been of the belief that you fight offensive speech with more speech. While that's not always the most satisfactory option, it is much less unsatisfactory than unleashing the state to try to police speech and envelop society in endless arguments over where to draw the lines. I love how the article expressed it: "In the United States, that debate has been settled."

[Beelzebubba]

Bureaucrats have trouble legislating what what love is, what marriage can be etc. Let's give them a poke at legislating hate. Then they can resolve the paradox of whether someone that loves to hate is committing a crime. We're safer now.

[David Govett]

Hate speech is any statement opposing free speech.

[Qwinn]

What's missing, even in the US, is laws penalizing someone's attempt to use these type of laws to violate other's rights to free speech. You can keep doing it and doing it, no matter how insane or frivolous the provocation, and nothing can ever, ever happen to you for it. Anyone you don't like, attack them with this. At "best", you'll destroy their lives with legal bills, and at "worst", you'll be able to legally silence them.

Until there's a remedy for people who're legally assaulted in this matter, and punishment for those who abuse the laws to that end, it will never end.

Qwinn

[Charlie]

“Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”

-- S.C. Justice Lewis Powell, for the majority; Gertz v. Robert Welch, Inc. (1974)

[Uncle Ralph]

Hear ye! Hear ye!

"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." -- Lord Justice Sedley [UK] in Redmond-Bate v Director of Public Prosecutions (1999)

Dig it, citizen.

[Mike]

What I find most amazing about that NY Times article is its anemic defense of free speech! The bulk of the article is spent giving voice to the "free speech=hate speech" crowd. It is not until the last two paragraphs that they even mention Mark Steyn, and his comments are absolutely right on. "Hate speech" regulation is all about bruised feelings and politically motivated hypersensitivity among "protected" groups.

It makes sense to give sweeping powers to the State to regulate the expression of ideas just so that certain, special minorities can be spared having their feelings hurt? How is that even a close argument? And can't even the New York frickin' Times see what mischief that will bring? And why are the feelings of Muslims more protected than the feelings of Christians? Because it is about power and politics, not parity.

[William Oliver]

I think one needs just look at history to see this cycle. Statists in the US have traditionally touted European restrictions on liberty as models -- the founders of the ACLU were fans of both the Soviets and National Socialism before WWII. It's no surprise that this nature resurfaces on occasion.

[tim maguire]

Some prominent legal scholars can kiss my ass. Neither their prominance nor their scholarship gives their personal preferences any special status. Elitist prigs.

[A.B. Osborne]

The purpose of 'hate crime' legislation is to make a particular form of thought illegal. Once you make one form of thought illegal, you can make other forms illegal as well. By adopting laws that legally proscribe and punish this particular form of thought - even though it is a loathesome form of thought - we have begun down the road that ends at the gates of death camps.

[Seerak]

The purpose of "hate crime" legislation is to bypass the First Amendment. But this is true on many more levels than just freedom of speech.

For one thing, it necessarily puts the government into the position of arbiter over ideas, i.e. which ideas are permissible -- and which are punishable.

For another, it also breaks equality under the law, as those groups whose members qualify for the "extra protection" of hate crimes law become privileged classes thereby.

[ebt]

In Canada, defining "hate speech" has proved to be a piece of cake. The ruling party (invariably the Liberals) consists of a coalition of minority interest groups, each intent to get some advantage from the majority or exact some revenge against another minority. The ruling party appoints members of its constituent minorities to be human rights commissioners. If a complaint of hate speech is brought by a member of any of the constituent minorities against anyone who isn't such a member, that complaint succeeds, and the speech is hate speech. All other complaints are dismissed out of hand. The actual speech itself is irrelevant. Hate speech of the vilest and most violent kind is actually both legal and common in this country, as long as it comes from and is directed against the right people. In the two recent sensational cases, the complainant (NB not the defendant) in one openly advocates the extermination of the Jews, and in the other the subjugation of the white race, and neither need fear any proceedings against him.

This is a simplification. If there's a clear enough pecking order among groups in the party, then a complaint against a member even of a member group can succeed, if it's brought by someone from a group with higher status. (Thus it was possible to prosecute an Indian for hatred against Jews, though an Indian would otherwise be free to preach hate against whomever he likes - er, that should be, whomever he hates.) And any complaint can succeed if the target is a member of a group particularly singled out for persecution, either by the party or by the particular commissioner in charge. But in all cases, the speech doesn't matter. The identity of the parties determines.

This system worked perfectly well when the member groups were limited to Jews and racial minorities, and the target groups limited to neo-Nazis (including immigrants from Eastern Europe with Nazi-sounding accents) and devotees of white power. The neo-Nazis and white power types were pretty much asking for it, and nobody from Eastern Eruope can possibly have clean hands, so there was no problem. The concerns being raised today arise partly from the fact that gays are now a recognized member group, which renders Christians a target group; and more seriously that Islamist jihadis have become a recognized member group, rendering society at large a target.

And also there has been an element of corruption in the process. There are so few members of the public who are able and willing to bring a complaint that in order to keep the volume up, the members of human rights commissions have taken to bringing their own complaints, and awarding compensatory damages to themselves. In the case of the federal government commission, they're actually going online, visiting target sites, and posting their own hate speech so that they can prosecute the site for letting them post, fine them and pocket the fines.