This was stuck in my drafts folder. I have published it on the date of creation. It is half baked and unfinished, so forgive the roughness.
Few argue with the stated objective of hate speech legislation, but it is widely abused for political means, interferes with free inquiry (needed for science and democracy) and is often counter productive (inflames rather than reduced ethnic tension).
Countries like Australia are ditching it. We have ancient and effective laws against incitement that are enough to handle direct harms. Look at Sweden. It has the most draconian Hate Speech legislation and has an exploding problem with extreme far right nationalism. A significant part of the problem is that honest dialogue is impossible because the laws are used a a political weapon.
Here in Denmark where we have great free speech, we have no such problems. People speak freely, there is a marketplace of ideas, pragmatic and fair solutions are created where all stakeholders – including the often silenced minorities – are considered. This leads to increased social cohesion, not less.
In Europe we waged a 1000 year fight against religious and state authorities to establish rights that you take for granted and are the underpinnings of liberal democracy. People are entitled to believe what they want, even if it is that certain groups are sub-human (Freedom of though). They also have the rights to express those beliefs (freedom of speech). Those natural rights are, as you say, constrained by the harm principle (You should not hard others with your actions). The argument since WW2 has been what harms come from certain kinds of speech. We have gone from direct incitement (“Kill that man!”) to a situation where merely insulting people is now criminal.
In our desperate effort to contain the problems arising from mass migration and botched multiculturalism, we are destroying our rights. The second order effects are damaging to democracy and ruinous if not utterly destructive to minorities. We are like rats gnawing on the ropes that keep us from falling into the sea. In our short-sighted effort to address the symptoms of our problems (Hate speech, rising social tensions, erosion of democracy, radicalism) we damage the the tools we will need to fix them (like freedom of speech).
It is impossible to explain the subtleties here, but please read the magnificent book Kindly Inquisitor’s by the gay rights activist Jonathan Rauch. It is one of the finest books on the subject.
Slavoj Zizek has a revealing take on the role of racist jokes in the former Yugoslavia:
This tell us something important. When you silence the jokes, the satire, the free speech, you know the situation is really bad. Killing free speech and humor are the death signs of a stable society liberal order.
Another example – from the Tito era – is the perpetuation of social and political silliness because people want to avoid offending other’s beliefs or are too scared to say things out loud. This wonderful RSA animated presentation by Professor Renata Salecl on The Paradox of Choice. Check out her description of people in Yugoslavia pretending to believe in Communism despite almost no one really believing it.
On Law as a licensed political weapon
Laws are weapon we voluntarily license to the state to constrain our freedoms, with our consent, for our collective benefit. If those weapons are used responsibly, and achieve their stated ends (the spirit of the law) they ought to be kept. If those laws are corrosive of the commonwealth or harmful, they need to be repealed. Hate statutes have failed this test on both counts. They have been used irresponsibly to prevent open discussion, not encourage it and this has, in my opinion, caused more harm than good. Large scale migration, and how we manage it responsibly, are arguably the most important political subject of the era. It is an existential question for European culture. With a topic of such importance, pieties and possible harms are secondary to forging a workable politico-social response to this phenomenon.
The question is not how to stop it – it is effectively unstoppable in an unequal world – now how to reverse it, that is barbarous and impossible without genocide. The question is how we can all live together forever. For 50 years we have trusted elite paternalism. We trusted the political classes to manage the problem and act in out best interests. The Financial Crisis has reminded us forcefully the elites act in their own interests, even to the point of fomenting ethnic tension to maintain disunity between groups who should be natural allies (US blacks, Hispanics and the white working classes).
The largest social experiment in history – mass immigration managed by official multiculturalism with hate speech and obscurantism about the effects of immigration or the behavior of immigrants being central to the strategy (“Everything is fine here, move along, asking questions is racist”). The internet threatened that. If the masses could collaborate directly, it would undermine efforts to manage the message on the effects on immigration (the chief of which is diminishing social cohesion). This threat was neutralized by what the internet actually unleashed: A cacophony of disagreement and disinformation (as David Weinberger says “a tsunami of disagreement”).
Europeans and other populations being subjected to large scale disruptions from immigration could not organize a cohesive response to try and stop it but could not even discuss how to respond to it beyond the state sanctioned mandates of banning racism, insults, ethnic humor and effectively forbidding the discussion of immigration in terms other than the benefits of diversity and the enrichment of society.
This towing of the official line on immigration has seriously damaged people trust in politicians. The problems with immigration and immigrants are obvious, yet acknowledging them was ruinous to carers and in some cases illegal. Almost anything cold be sacrificed to maintaining “community relations”. Riots in the summer of 2001 in the UK were blamed on the tiny and politically marginal British National Party (BNP) when after 9/11 it became obvious it was internal community radicals that were stirring up the riots. Those who said so at the time were banded racist.
In the North of England gangs of British-Pakistanis groomed and systematically raped thousands of white children.
The authorities knew about the problem for 10 years and did next to nothing due to being paralyzed by fears of being branded racists (thereby ending their careers) and “inflaming community tensions”. This is just one of countless examples where mainstream political forces and civil servants toed the line on immigration and its effects, handing the role of truth-sayers to far right populist parties and groups who were willing to acknowledge the truth (then offer a simplistic and chauvinist interpretations) and promised these disenfranchised whites something the lacked and craved – political representation.
Now we have a perfect storm for fascism. Weak and politically paralyzed western governments. Aggrieved minorities fed a relentless narrative of racist oppression and discrimination. Provocative terror groups “representing” minorities. High crime among some immigrants and minority groups fueling majority anger. Discrimination against the majority in law to help minorities. We also have growing working class political consciousness and awareness of the elite swindle as manifested by the populist surge. This is a recipe for revolution. Will you stop them with hate speech laws designed to suppress knowledgeable of real problems? Did not work for Soviets in the pre-internet era, it will not work where everyone has a video capable smartphone phone either.
So what do we do then?
We protect free-speech as fiercely as we can.
Fist we believe we can find a political solution – no more fatalism and pessimism.
We do not leave this to the state, it has failed to manage this and cannot be trusted. We address it at a civic level.
We use the ancient tools of building trust: Honest dialogue, acknowledgement, the truth
We make it safe for people to speak up. We establish genuine politico-cognitive diversity
We (Europeans) accept immigrants as 100% equals as citizens and stakeholders (like in the USA)
We repudiate essentialism. You are defined by what you espouse and electively support e.g. you may be judged for supporting slavery, not because you are white.