The Oslo Freedom Forum this week was a wonderfully stimulating experience – intense, illuminating and often inspiring, meeting writers, artists and activists who often daily put their lives on the line defending rights and liberties.
I gave a talk in the session on ‘The right to offend’. It was an honour to speak alongside the Iranian satirist Kambiz Hosseini, the Venezuelan political cartoonist Rayma Suprani and Zineb El Rhazoui, a columnist for Charlie Hebdo. Moroccan-born El Rhazoui gave a scorching defence of free speech, excoriating both liberal and Islamist critucs.
My talk on the problems of the ‘I’m for free speech but’ attitude (I will post a video of it soon) gave rise to some debate at the conference, much of it centered on the question of hate speech, and whether it should be banned, and on what constitutes ‘incitement to violence’. In not banning hate speech, are we not allowing it to fester? Do not Germany in the 1930s and Rwanda in the 1990s reveal the dangers of allowing hate speech to fester unchecked, and hence reveal the need for laws against such speech? Hate speech has helped corrupt the relations between Sunnis and Shias in much of the Middle East; would it not have been much better if such speech had been banned. Should we not ban speech that is threatening but may not cause imminent harm? These are many of the kinds of questions that came up.
Three years ago, I gave a long interview to Peter Molnar, of the Central European University, for a book he was editing on the regulation of hate speech. The interview set out in detail my views on hate speech and why it should not be banned. I am republishing here the sections from that interview most pertinent to the Oslo discussions (inevitably,this extract will not address all the issues raised, but it does point to some answers and, in particular, to ways of thinking about the issues). The full interview is here.
Why hate speech should not be banned
Peter Molnar: Do you support content-based bans of ‘hate speech’ through the criminal law, or do you instead agree with the American and Hungarian approach, which permits prohibition only of speech that creates imminent danger?
Kenan Malik: I believe that no speech should be banned solely because of its content; I would distinguish ‘content-based’ regulation from ‘effects-based’ regulation and permit the prohibition only of speech that creates imminent danger. I oppose content-based bans both as a matter of principle and with a mind to the practical impact of such bans. Such laws are wrong in principle because free speech for everyone except bigots is not free speech at all. It is meaningless to defend the right of free expression for people with whose views we agree. The right to free speech only has political bite when we are forced to defend the rights of people with whose views we profoundly disagree.
And in practice, you cannot reduce or eliminate bigotry simply by banning it. You simply let the sentiments fester underground. As Milton once put it, to keep out ‘evil doctrine’ by licensing is ‘like the exploit of that gallant man who thought to pound up the crows by shutting his Park-gate’.
Take Britain. In 1965, Britain prohibited incitement to racial hatred as part of its Race Relations Act. The following decade was probably the most racist in British history. It was the decade of ‘Paki-bashing’, when racist thugs would seek out Asians to beat up. It was a decade of firebombings, stabbings, and murders. In the early 1980s, I was organizing street patrols in East London to protect Asian families from racist attacks.
Nor were thugs the only problem. Racism was woven into the fabric of public institutions. The police, immigration officials – all were openly racist. In the twenty years between 1969 and 1989, no fewer than thirty-seven blacks and Asians were killed in police custody – almost one every six months. The same number again died in prisons or in hospital custody. When in 1982, cadets at the national police academy were asked to write essays about immigrants, one wrote, ‘Wogs, nignogs and Pakis come into Britain take up our homes, our jobs and our resources and contribute relatively less to our once glorious country. They are, by nature, unintelligent. And can’t at all be educated sufficiently to live in a civilised society of the Western world’. Another wrote that ‘all blacks are pains and should be ejected from society’. So much for incitement laws helping create a more tolerant society.
Today, Britain is a very different place. Racism has not disappeared, nor have racist attacks, but the open, vicious, visceral bigotry that disfigured the Britain when I was growing up has largely ebbed away. It has done so not because of laws banning racial hatred but because of broader social changes and because minorities themselves stood up to the bigotry and fought back.
Of course, as the British experience shows, hatred exists not just in speech but also has physical consequences. Is it not important, critics of my view ask, to limit the fomenting of hatred to protect the lives of those who may be attacked? In asking this very question, they are revealing the distinction between speech and action. Saying something is not the same as doing it. But, in these post-ideological, postmodern times, it has become very unfashionable to insist on such a distinction.
In blurring the distinction between speech and action, what is really being blurred is the idea of human agency and of moral responsibility. Because lurking underneath the argument is the idea that people respond like automata to words or images. But people are not like robots. They think and reason and act on their thoughts and reasoning. Words certainly have an impact on the real world, but that impact is mediated through human agency
Racists are, of course, influenced by racist talk. It is they, however, who bear responsibility for translating racist talk into racist action. Ironically, for all the talk of using free speech responsibly, the real consequence of the demand for censorship is to moderate the responsibility of individuals for their actions.
Having said that, there are clearly circumstances in which there is a direct connection between speech and action, where someone’s words have directly led to someone else taking action. Such incitement should be illegal, but it has to be tightly defined. There has to be both a direct link between speech and action and intent on the part of the speaker for that particular act of violence to be carried out. Incitement to violence in the context of hate speech should be as tightly defined as in ordinary criminal cases. In ordinary criminal cases, incitement is, rightly, difficult legally to prove. The threshold for liability should not be lowered just because hate speech is involved.
PM: How tightly should we define the connection between incitement and the imminent danger of action? What about racist slogans in a soccer stadium, and imminent danger of violence on the crowded streets after the end of the game?
KM: Racist slogans, like any racist speech, should be a moral issue, not a legal one. If supporters are clearly set to attack others, or are directly inciting others to do so, then, of course, it becomes a matter for the law.
PM: What about this example: At the gay pride parade in Budapest, peaceful marchers were attacked. Some onlookers merely shouted homophobic statements; others, no doubt encouraged by the taunting, threw eggs and rocks at the marchers. If the hecklers later stated that they had not intended to incite violence, should they be subject to punishment or liability?
KM: Such questions cannot be answered in the abstract; it depends on the context. I would need to know more factual details than you have provided. If the two groups you mention were independent of each other and happened to turn up at the gay march at the same time, and if the perpetrators of violence would have attacked the marchers anyway, then I don’t see that the non-violent homophobes have a legal case to answer. The non-violent homophobes are no more responsible for the violence of the violent homophobes in those circumstances than peaceful anti-globalization protestors are responsible for the actions of fellow-protestors who trash Starbucks or set cars alight.
If, on the other hand, there was a relationship between the two groups, or if the one was clearly egging on the other, and if without such encouragement the violent protestors would not have been violent, then, yes, there may well be a case to answer.
PM: Do you think that we can find a universal approach to criminal law restriction to incitement to hatred? Or should the regulation depend on the cultural context, and if so, in what way regulation could be different?
KM: I believe that free speech is a universal good and that all human societies best flourish with the greatest extension of free speech. It is often said, for example, even by free-speech advocates, that there is a case for Germany banning Holocaust denial. I don’t accept that. Even in Germany – especially in Germany – what is needed is an open and robust debate on this issue.
PM: Would you suggest the same for Rwanda?
KM: Yes I would. What Rwanda requires is not the suppression of the deep-seated animosities but the ability of people openly to debate their differences. It’s worth adding, given the argument for state regulation of hate speech, that in Rwanda it was the state that promoted the hatred that led to such devastating consequences.
PM: What would imminent danger caused by incitement to hatred mean in such an environment? In other words: Do you think that the legal concept of this imminence of danger can be contextual?
KM: The meaning of ‘imminent danger’ clearly depends upon circumstances. What constitutes imminent danger in, say, London or New York, where there exists a relatively stable, relatively liberal society, and a fairly robust framework of law and order, may be different from what constitutes imminent danger in Kigali or even in Moscow. And the meaning of imminent danger for a Jew in Berlin in 1936 was clearly different from that for a Jew – or a Muslim – in Berlin 2011. At the same time, in those times and in those societies in which particular groups are being made targets of intense hostility, this debate becomes almost irrelevant. In a climate of extreme hatred, as in Rwanda in 1994, or in Germany in the 1930s, it may be easier to incite people into harming others. But in such a climate, the niceties of what legally constitutes “imminent harm” would, and should, be the least of our worries. What would matter would be to confront such hatred and prejudice head on, both politically and physically.
What I am wary of is that in accepting the commonsense view that what constitutes danger is dependent on circumstances, we should not make the concept so elastic as to render it meaningless. Whether in London, New York, Berlin, or Kigali, speech should only be curtailed if such speech directly incites an act that causes or could cause physical harm to others and if individuals are in imminent danger of such harm because of those words. What is contextual is that in different circumstances, different kinds of speech could potentially place individuals in the way of such harm.
PM: How, in your view, could we improve the social (non-legal) responses to ‘hate speech’?
KM: The whole point of free speech is to create the conditions for robust debate, to be able to challenge obnoxious views. To argue for free speech but not to utilize it to challenge obnoxious, odious, and hateful views seems to me immoral. It is morally incumbent on those who argue for free speech to stand up to racism and bigotry.
At the same time, however, we should be clear that what often legitimizes bigotry are the arguments not of the bigots but of mainstream politicians and intellectuals who denounce bigotry and yet accept bigoted claims. Throughout Europe, mainstream politicians have denounced the rise of the far right. And throughout Europe, mainstream politicians have adapted to far-right arguments, clamping down on immigration, pursuing anti-Muslim measures, and so on. They have sometimes even adopted the language. In his first speech at the Labour Party conference after gaining the top office, former British Prime Minister Gordon Brown talked of ensuring ‘British jobs for British workers’, a slogan first popularized by the neofascist National Front. The National Front had twinned it with a second slogan: ‘Three million blacks. Three million unemployed. Kick the blacks out’. Gordon Brown was, of course, not guilty of hate speech. But his use of that phrase probably did far more to promote xenophobic sentiment than any amount of “hate speech” by far-right bigots. Challenging bigotry requires us to challenge the mainstream ideas that give it sustenance, and to campaign against those discriminatory social practices and laws that help make the arguments of the racists, the sexists, and the homophobes more acceptable.
PM: Do you think that banning ‘hate speech’ undermines, or at least weakens, the legitimacy of a democracy?
KM: Free speech and democracy are intimately linked. Without free speech there is no democracy. That is why any restriction on speech must be kept to the absolute minimum.
There are two ways in which banning hate speech undermines democracy. First, democracy can only work if every citizen believes that their voice counts. That however outlandish, outrageous, or obnoxious one’s belief may be, they nevertheless have the right to express it and to try to win support for it. When people feel they no longer possess that right, then democracy itself suffers, as does the legitimacy of those in power.
Not just the banning of hate speech but the very categorization of an argument or a sentiment as ‘hate speech’ can be problematic for the democratic process. I am in no doubt that some speech is designed to promote hatred. And I accept that certain arguments – like the direct incitement of violence – should indeed be unlawful. But the category ‘hate speech’ has come to function quite differently from prohibitions on incitement to violence. It has become a means of rebranding obnoxious political arguments as immoral and so beyond the boundaries of accepted reasonable debate. It makes certain sentiments illegitimate, thereby disenfranchising those who hold such views.
And this brings me to the second point as to why the banning of hate speech undermines democracy. Branding an opinion as ‘hate speech’ does not simply disenfranchise those holding such a view; it also absolves the rest of us of the responsibility of politically challenging it. Where once we might have challenged obnoxious or hateful sentiments politically, today we are more likely simply to seek to outlaw them.