James Peron reflects on the nuanced understanding of hate speech and its legal complexities. He highlights how perceptions of truth evolve with maturity, revealing the intricacies in defining and regulating hate speech. James emphasizes the challenges lawmakers face in balancing freedom of expression with preventing harm, underscoring the role of individuals in combating hate privately.
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By James Peron*
Hate speech is complicated and ugly
The older I get the more I realize how complex reality can be. Recently I reread something I wrote a few decades back and realized how wrong I was because I saw things as more simple than they really were.
One thing I learned from maturing is in youth we go about searching for truths to believe but with age we start to realize what “truths” we got wrong, hate speech is one such issue.
When it comes to hate speech complexity is ever present. This means any column about the topic will overlook some important facts. You can’t do in a column what would take a book.
Hate speech is many things. It’s ugly, juvenile, vicious, false, and simplistic and may, under certain circumstances be criminal in the sense of violating the rights of others and not just in violating laws. One thing is true—it’s complicated.
I remember going into a religious bookstore in Gauteng and finding books that were quite hateful of other groups. They didn’t like Mormons, gays, or anyone they felt was outside their own faith. That raises a question: Is this religious freedom or is it hate speech? In fact, it can be both at the same time.
Ismail Joosub, of the FW De Klerk Foundation, noted that the Foundation, along with the Democratic Alliance and the Institute of Race Relations, “raised concerns about [South Africa’s] potential infringement on specifically the freedom of expression enshrined in section 16 of the Constitution and other rights like religious rights. We view it as being overly restrictive and lacking in definition and having overly broad definitions that could potentially stifle legitimate democratic discourse”
Drawing legal boundaries is often difficult. Take age of consent laws, such as for drinking alcohol. If the law sets the age too low it leads to exploitation and harm to children but if it is set too high it violates individual rights.
Sometimes, where the law must draw a boundary there is no clear line of demarcation. Laws can’t take into account the facts in a case because there is simply no way for legislators to know them in advance. This is one of the reasons central economic planning is a fantasy at best.
The United States has pretty strong laws defending freedom of speech but also draws a line around speech when it offers a “clear and present danger” to the rights of another person. It takes more than being offensive for a criminal sanction to be applied. The law school at Cornell University explained it:
The clear and present danger test features two independent conditions: first, the speech must impose a threat that a substantive evil might follow, and second, the threat is a real, imminent threat. The court had to identify and quantify both the nature of the threatened evil and the imminence of the perceived danger.
Telling a rabid mob they should riot and loot is not protected speech anymore than a group of radicals talking about plans for a terrorist attack. They can be arrested just for planning the crime. Plenty of speech is criminal so the boundary is not merely whether something is speech but whether it comes with clear danger and an imminent threat to others.
A frothing preacher in the pulpit screaming about how LGBT individuals are “Satan’s spawn” would be protected. The same preacher on a public street with his congregation telling them “There’s one of them, God says such people are worthy of death, get ‘em,” is quite another—especially if the actual result is death.
Hate speech such as “kill the Boer” is sometimes criminal and sometimes not, depending on how likely it is to lead to actual attacks on individuals. That is not something legislators are particularly good at determining, which is why under “clear and present” tests that is left in the hands of the courts, where the particulars of the individual case can be investigated in ways legislation can‘t. What you can do as an individual is often more than a proper government can do.
For instance, if you own a publication or web site it is your right to determine content. You can ban individuals who spew hate on your site in ways a liberal government would be forbidden to do. You have no obligation to use your resources to the benefit of hate groups.
You are also free to ridicule or rebut such hate. Oddly, I have seen preachers of hate turn into fragile snowflakes when they themselves are rebutted or ridiculed. On one hand they preach killing others and then turn around and whine any attack on their views is “persecution.”
In the end the best way to fight hate speech is often done privately not by the state.
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*James Peron: President of the Moorfield Storey Institute and author of several books, including Exploding Population Myths and The Liberal Tide, is a contributing author for the Free Market Foundation.
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