There’s a broad mainstream consensus on both sides of the Atlantic: Trump’s tweet telling four hard-left minority Congresswomen to ‘go home’ to the crime-ridden countries they’re from, when three of the four were born in the US, was racially inflammatory and staggeringly ill-judged. But the first question that would be raised in the UK if a British politician committed such a gaffe is the last question raised in the US: was that post ‘hate speech’?
The First Amendment to the American constitution guarantees five basic freedoms, including freedom of speech, and these principles ought rightly to pertain in other democracies such as Britain. (I’m sorry, but we’ve one-upped the Brits here; the UK’s ‘constitution’ isn’t worth the paper it’s unwritten on.) Thus the Supreme Court has repeatedly struck down ‘hate-speech’ laws, now catastrophically installed and vigorously prosecuted in Britain, resulting in the grievous squandering of limited police resources.
In Europe, freedom of speech evokes a knee-jerk ‘yes, but’. Particularly in France, despite all that Gallic ‘liberté’ guff, conversations about the topic inexorably degenerate into a listing out of freedom of expression’s many crucial constraints. Yet in the US, free-speech exemptions are strikingly few. They are: 1) Obscenity — definitionally dodgy, much adjudicated and legally eroded. 2) Defamation — although short of telling witting, malicious lies, you may defame public figures. A ludicrous threat of legal action by the Sinn Fein Belfast Lord Mayor John Finucane against Ruth Dudley Edwards for labelling him an IRA ‘apologist’ would get laughed out of court in the States. Were current British libel law extended to Northern Ireland, such a case would be never be heard in the UK, either. 3) Incitement to imminent lawbreaking or violence. Commercial advertising is less protected, but the ordinary American citizen can espouse all manner of ghastly views within the law.
Britain should tear a page from the US Supreme Court’s playbook. In striking down a law prohibiting ‘racially disparaging’ trademarks in 2017, Justice Samuel Alito wrote: ‘Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate”.’ Justice Anthony Kennedy contributed on that same case: ‘A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence.’
The alternative to letting people spout dumb crap is a slippery slope whose gradient rivals Harlech’s notoriously vertical Ffordd Pen Llech in North Wales. In the UK, nine ‘protected characteristics’ are now covered by hate-speech laws, and that list will only expand. Once using the wrong pronoun or stating facts like ‘women don’t have penises’ can get you arrested, your society is no longer free in any meaningful sense.
Though a private US-based company whose policies need not conform to the First Amendment, even Twitter has discovered that enforcing virtue by fiat rapidly becomes a nightmare. In August, the platform proscribed any speech that was ‘dehumanizing’. Thus Trump’s railing last summer about so many immigrants coming from ‘shit holes’ was banned. By January, in an internal slide show used to train moderators, this very same Trump post was used as an example of a seemingly dehumanizing tweet that was still allowed. Earlier this month, in the rollout of the latest version of the ‘dehumanization’ policy, the sample ‘shit holes’ tweet had vanished. So much content potentially falls afoul of this broad, ill-defined prohibition that it now applies only to religious groups. Twits may not compare the followers of any faith to animals, insects, bacteria, or ‘other categories’ — including, we can presume, letterboxes. The policy has shrunk to a war on metaphor.
Hatred is often in the eye of the beholder. Like Boris, I think Muslim women should be free to wear what they like. I also think the burka is a dehumanizing garment that effaces women’s identity, conveys not modesty but shame, covers women in hot climates in stifling black while men wear heat-reflective white, and absurdly flatters the virility of Muslim men, who at the flash of an ankle can’t control their lust. I ask you: is this paragraph ‘hate speech’?
It’s time to give up on the idea that we can legislate niceness. A law against the expression of racist or sexist opinions doesn’t change what goes on in people’s heads; it doesn’t change their hearts. Instead suppression backfires, and makes what we’d like to regard as unacceptable still more virulent. Granted, allowing the expression of bigoted bilge could injure the feelings of some targets. But when ruling earlier this month that Trump couldn’t block fellow Americans from following him on Twitter, federal appeals court judge Barrington D. Parker’s solution to such injury was spot-on: ‘The best response to disfavored speech on matters of public concern is more speech, not less.’ Absent hate speech laws, offended parties might be heartened by the numerous neighbors who rally to their defense.
Now that everyone’s 15 minutes of fame extends to years on end, the digital age has revealed that swaths of our fellows are horrid. The clamor of the internet exposes the depressing prevalence of ignorance, envy, bitterness, rancor, malice, prejudice and stupidity in our midst. Reluctantly, I guess I’d rather know that all that poison is out there than walk the world in delusional innocence — even if knowing that the minds of some portion of my readership look like the burbling primal ooze in Stranger Things makes writing a queasier occupation.
With truly free speech, we strike a bargain: you get to preach atrocities, and I get to say, ‘That’s an atrocity.’ Then I speak what to you is atrocity, and to me is common sense. It’s a good deal. Because the alternative is what the UK has now, and it will only get worse: government systematically legislating not just what we say but what we may believe. I don’t share such a view, but it should still be possible to claim that homosexuality is a sin against God without ending up in jail.
This article was originally published in The Spectator magazine.