How can we distinguish hate speech from extremist speech?
Two types of discourse have emerged as particularly problematic in contemporary liberal democracies. Hate speech and extremist speech have assumed a growing prominence both in public discussions and in law enforcement. They have been linked to societal problems of violence, discrimination, and disruption, as well as to more specific harms to victim groups or to vulnerable individuals. Limiting these types of expressions, however, also incurs a real cost to free speech that must be acknowledged.
Looking first at hate speech, it is important to note how difficult it is to define this term. Legally speaking hate speech is best defined as communications that contravene the law because they stem from or stir up hatred against people who belong to defined categories. To give a concrete example, French law punishes speech that constitutes insult, defamation, or provocation (to discrimination, hatred or violence) “toward a person or a group of persons because of their origin or their belonging or non-belonging to an ethnic group, a nation, a race, or a determined religion.” France also has parallel provisions against expressions aimed at people on the grounds of sex, sexual orientation, or handicap.
Verbal attacks on people because of their identities are nothing new. And while there are instances where societal majorities such as Christians, or Whites, or men suffer from vitriol, as a systemic problem, hate speech is most troublesome when it is leveled at individuals or groups that have a less secure societal status.
If hate speech is designed primarily to harm members of a different group, extremist speech aims mainly to unify and to mobilize members of the group itself. Just as with hate speech, extremist speech is difficult to define. If a fundamentalist calls for a return to the ways of the book, that may offer a path toward a more stable life for individuals who were previously engaged in a life of petty crime. If an extremist calls for outrage at the values or the actions of European leaders, it may remind us of John Stuart Mill’s contention that societies benefit when established ideas are vigorously challenged.
At its worst, however, extremist speech sets out to generate anger that spurs followers to lash out at perceived oppressors. This may be done through direct incitements to violence, or indirectly though apologias or glorification of terrorist acts. They may be carried out in the open, or they may circulate through back channels on the Internet or in audio or video format passed surreptitiously from hand to hand. These statements have taken on considerable prominence in contemporary liberal democracies that have been the targets of Islamism.
How can we balance restricting hate speech or extremist speech with respect for freedom of expression?
In light of these twin challenges, how do we draw the line between speech that should be protected, and speech that goes too far ? In the United States, the Supreme Court has determined that all hate speech should be permitted, unless it incites immediate violence, constitutes a true threat, or constitutes a hate crime if it takes places as part of a criminal act (such as an assault or an act of vandalism). Unlike several European countries, US law also protects apologias or glorification of terrorist acts, unless they are construed to constitute “material support or resources” for a foreign terrorist organization.
European countries draw the legal line differently, placing a relatively greater emphasis on values such as human dignity, social order, and equality. For example, the European Court of Human Rights has the task of ruling on potential infringements of the European Convention on Human Rights, which has been ratified by the 47 members of the Council of Europe. Article 10 of the Convention clearly states that, “Everyone has the right to freedom of expression.” However it also notes that this freedom imposes “duties and responsibilities” and can be limited by law for a wide number of reasons such as public safety, the prevention of disorder, and the protection of the reputation or the rights of others.
While these exceptions can be vague, they also allow for individual countries to craft laws that restrict certain forms of speech deemed especially harmful. National laws have not limited hate speech simply because it causes offense, nor have they restricted open discussions of the rationales terrorists give when carrying out their acts. Instead, they have been deployed largely to punish statements that dehumanize vulnerable groups or that celebrate gross human rights violations.
There are significant and legitimate disagreements about the wisdom of laws against hate speech and extremist speech. On balance, national and international judicial bodies have enforced these laws cautiously. Yet, they do go too far at times, limiting irksome rather than dangerous speech. They are also open to abuse by public authorities that seek to burnish their image as “tough on crime”.
Free speech advocates thus play a vital role when they express skepticism about such laws. There is value in sensitizing sometimes-complacent citizens and politicians to the excesses of enforcement. Delineating the legitimate limits on freedom of expression is a difficult task in liberal democracies—and it is one that is best done through a process of careful and considered deliberation. Without constant vigilance, laws enacted to promote societal well-being could easily evolve into illegitimate statutes that do far more harm that good.