You might think hate speech bans are a good idea. Think again.
Over the past two months, campuses have roiled with protests and divisive slogans about the Israel-Hamas war. In recent weeks, elite college presidents have been under fire after their widely-panned responses at the recent House Education and the Workforce Committee hearing in Washington.
As a result, some Americans are circulating an unwise—and, in the case of government actors, unconstitutional—idea: Let’s start cracking down on “hate speech.”
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“Some have said that we need this hate speech to be protected in order to have a democracy. We are one of the few democracies on this planet that allow hate speech,” Pennsylvania state Sen. Art Haywood argued on Tuesday while announcing plans to introduce legislation to ban hate speech in the state’s public and private universities. “It’s not allowed in most of Europe, where there are democracies.”
Haywood is on a collision course with the Constitution. Public universities are bound by the First Amendment, under which no “hate speech” exception is recognized.
Claire Finkelstein, a member of the University of Pennsylvania’s Open Expression Committee and chair of Penn law school’s committee on academic freedom, candidly pronounced “[t]o fight antisemitism on campuses, we must restrict speech” in the pages of The Washington Post on Sunday. While private universities are not similarly bound by the First Amendment, many—like the University of Pennsylvania—have long recognized the wisdom of its standards by enshrining them in their codes of conduct despite not always having lived up to them.
Many of the debates about hate speech currently revolve around the campus setting, but we shouldn’t expect them to stay there.
Hate speech ban adherents are confident that such restrictions would provide a balm for their communities’ ills, but the reality isn’t so rosy. In some cases, they do the opposite: Not only do hate speech laws fail at eliminating “hate,” they can instead offer a tool to authorities wishing to impose their own preferences and politics on their citizens—sometimes serving not beleaguered minorities, but dominant political, social, and religious groups.
Perhaps the critics have it right this time, though. Maybe we can achieve a utopia where we’ll find perfect leaders who can apply hate speech restrictions so wisely and judiciously that we will realize we were fools for ever opposing them.
Sure, that wasn’t the case in Russia, when a feminist blogger was investigated for hating men in her social media posts. Or in Indonesia, where a TikTokker was arrested for inciting hate after posting videos mocking Christianity and calling believers to convert to Islam. Nor in Pakistan, when the government cited “hate speech” restrictions to pressure Google to remove an online pro-academic freedom petition. And not in Turkey, where authoritarian President Recep Tayyip Erdogan’s spokesman threatened legal action against the “hate speech” of a lawmaker who called Erdogan “a fascist dictator.”
Fine, hate speech laws are abused in some authoritarian countries, supporters of these restrictions might argue, but democratic countries in Europe apply them, too, and are still free.
It’s true: European democracies do wield hate speech laws. In France, a government minister threatened prosecution under laws against inciting hatred to pressure a publisher to censor an essay discussing whether “anger towards men is actually a joyful and emancipatory path.” In Germany, police raided the home of a man who said “You are such a penis” about a Hamburg city senator. Catalan teachers were charged with “hate speech” for their discussions of the independence referendum and Spanish police. And just last month, U.K. police asked for the public’s help in hunting down a potential hate crime: a pro-Palestinian protester’s sign calling Prime Minister Rishi Sunak and Home Secretary Suella Braverman “coconuts.”
You may think that while there are isolated examples of abuse and absurdity, these laws nevertheless allow European nations to more effectively combat hatred. You’d be surprised to learn, then, that citizens in European countries with laws restricting hate speech and Holocaust denial experience worse rates of antisemitic attitudes than the United States, sometimes by a large margin.
The fraught political debates of today are no doubt upsetting to many who encounter them, and hateful expression that crosses into unprotected categories of speech, like true threats or incitement, should rightfully be handled by police.
But when we look back with the greater clarity the passage of time provides at similarly fraught eras of recent American history—the 9/11 attacks, the Vietnam War protest movement, the Cold War—we can see that censorship would not have freed us from any ugliness or discord plaguing American society. The same is true today.
Censorship is a false solution that creates more problems. We can’t legislate away hateful words and thoughts. And, even worse, we might not like the results if we try.
