Over the past few years, Western countries have seen a push for the criminalization of hate speech. In Australia, Canada, and the UK such laws already exist, and some in the US would like us to follow suit. This would be nothing short of a disastrous step backwards in the long-term project of civilization. Any law limiting the ability of people to publicly voice their opinions, however hateful or disturbing, would be undesirable, and it's clear from both history and common sense that hate speech laws, well-intentioned though they may be, generally are used to target marginalized people rather than protect them.
Australia's law provides a good example of a modern speech code. Section 18C of the Racial Discrimination Act makes it illegal for a person to commit an act that "is reasonably likely...to offend, insult, humiliate or intimidate another person or a group of people...[and said act can be criminalized if] the act is done because of the race, color or national or ethnic origin of the other person or of some or all of the people in the group."
There are many obvious problems with this kind of language, most noticeably in the use of the terms "offend, insult, [or] humiliate." To be offended, or insulted, or humiliated is an entirely subjective state of mind, and is completely divorced from the truth or falsehood, or value or lack of value, of whatever speech or act precipitates this feeling. You also may have noticed that the law deals with an act that "is reasonably likely" to cause this sort of reaction. Conceivably, a judge could find some form of speech that did not offend, insult, or humiliate anyone to be in violation of the statute.
This is the key point in legislation around speech, or frankly anything else - too often the focus is on the stated intent of a law, rather than the boundaries of the law. The RICO Act, for example, gave the authorities extra-ordinary powers to deal with the mafia, and the stated intent was that this act was for use against organized crime. The reality, thanks to the blurred boundaries of the law, is that today it has been used against Pro-Life activists and many other groups that are not vast criminal conspiracies.
Speech laws, as is also obvious from the text of Australia's Section 18C, are not limited to protecting marginalized groups from hate. Is it so difficult, for example, to imagine the Trump administration finding a way to use a statute like Australia's 18C in America against minority activists, while completely ignoring any hatred direction at minorities?
As the ACLU likes to say, rights to speech are indivisible. They can be used to protect or target either the powerful or the powerless, and to reduce the free speech rights of one group is to reduce them for all groups.
The indivisibility principle was illustrated well in the consequences of the 1949 case of Arthur Terminiello. Terminiello, a suspended Catholic priest, delivered a racist and anti-semitic speech to 800 people, with 1,000 more protesting outside. He was fined for violating a Chicago breach of peace ordinance and he sued, with his conviction upheld at every level until it reached the Supreme Court. Terminiello won that case, and the Chicago ordinance was declared to be unconstitutional.
As it turns out, what some might consider to be a victory for hate speech was a boon for civil rights. According to the ACLU, which defended Terminiello, "the precedent set in that case became the basis for the ACLU's successful defense of civil rights demonstrators in the 1960s and '70s." This is hardly surprising, according to the ACLU.
Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone's rights because the same laws or regulations used to silence bigots can be used to silence you. Conversely, laws that defend free speech for bigots can be used to defend the rights of civil rights workers, anti-war protestors, lesbian and gay activists and others fighting for justice.
According to Pew, a full 40% of millennials believe that the government should be able to prevent people from making "statements that are offensive to minority groups." This data isn't particularly surprising - you'd expect that as people become more directly aware of the challenges faced by disadvantaged people, they would would support measures they believe would mitigate the disadvantage. But in this case, as in so many others, seemingly obvious solutions are often counterproductive. An excellent recent example of this principle was shown in a study of the effects of "ban the box" efforts that have made it illegal in certain jurisdictions for employers to ask about the criminal backgrounds of applicants. According to social science research featured on NPR, this apparently obvious solution to issues of discrimination actually led to more discrimination.
History also provides many examples of speech codes intended to protect marginalized groups being turned against them. In the 1980s, white University of Michigan students used a speech code meant to prohibit racially offensive speech to charge 20 black students. Another example, again from the ACLU, comes from England, where speech restrictions are tighter than those in the US.
In Great Britain, for example, a Racial Relations Act was adopted in 1965 to outlaw racist defamation. But throughout its existence, the Act has largely been used to persecute activists of color, trade unionists and anti-nuclear protestors, while the racists - often white members of Parliament - have gone unpunished.
The typical argument for speech codes, as referenced above, is basically that they are needed to protect groups that lack institutional power. Under this logic, however, the group that the law would be intended to protect is, by definition, not the group that decides how the limits of the law are defined and when it should or should not be enforced. Again to quote from the ACLU:
Depending on how [speech laws] are interpreted and enforced, they can actually work against the interests of the people they were ostensibly created to protect. Why? Because the ultimate power to decide what speech is offensive and to whom rests with the authorities...not with those who are the alleged victims of hate speech.
One crucial aspect of this debate deals with speech that incites violence, or appears to incite violence. Historically, US courts have had very high standards for determining whether or not speech can be said to incite violence. This is illustrated best in the Brandenburg v. Ohio Supreme Court case. Brandenburg, the leader of the Ohio KKK, gave a speech that advocated generally for violence against blacks and jews. In the Court's view, this speech was protected.
"Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
-Brandenburg v. Ohio
Not even a general advocacy for violence is enough, in the Court's view, to transgress the law. This echoes the opinions of John Stuart Mill, considered one of the fathers of liberalism, who wrote in On Liberty;
An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer, or when handed about among the same mob in the form of a placard.
This view is, in my opinion, correct. It would be impossible to create a broader test that didn't open the door to abuses, and it would be undesirable to do so given the long history of selective enforcement in this area. The answer to hateful speech, as the cliche goes, is more speech - not censorship.
He that would make his own liberty secure, must guard even his enemy from oppression; for is he violates this duty, he establishes a precedent that will reach to himself.