The Pitfalls of Criminalizing "Hate"
The recent arrest of over 1,000 protesters in the UK for offenses such as “violent disorder” and stirring up racial hatred has raised eyebrows. The most surprising cases involved individuals who were arrested for posting comments about the riots on social media, even though they were not present at the rioting scenes and there was no evidence that their comments influenced those who participated in the riots.
The Role of Criminal Law in Upholding Individual Liberty
In societies that value individual liberty, the primary role of criminal law should be to restrain and penalize those who commit acts of aggression against others or their property. The law should not be used as a tool to prevent people from expressing hatred towards others or to force them to express love.
New York Governor Kathy Hochul recently announced a series of laws aimed at expanding the list of charges that can be prosecuted as hate crimes. This move is seen as an attempt to promote love between different racial or religious groups in society. However, it is argued that this approach misunderstands the role of criminal law.
Understanding Hate Crimes and Hate Speech
Hate speech and hate crime laws typically define hate as hostility based on race, sex, gender, sexual orientation, or religion. Often, hostility is perceived simply as words that offend others. In the UK, for example, the Communications Act 2003 prohibits sending a message that is grossly offensive or of an indecent, obscene, or menacing character.
The Online Safety Act 2023 targets illegal content online, including both "inciting violence" and the publication of "racially or religiously aggravated public order offenses". This includes writing posts or publishing blogs or articles on websites.
Questioning the Need for Hate Crime Laws
The argument against hate crime laws is that they seem to serve no discernible purpose since inciting violence is already a crime. The only apparent goal of these hate laws is to create a special category of crime based entirely on the identity of the victim. This has led to identity politics becoming a part of criminal law, with resources increasingly diverted towards combating hate crimes.
The consequences of this identity-based approach to law enforcement have been starkly illustrated in the UK, where individuals who posted hate speech on social media were charged with "inciting racial hatred" and sentenced to prison terms of up to two to three years.
Free Speech and the First Amendment
The U.S. has so far managed to avoid this socially destructive path, largely due to the first amendment of the U.S. Constitution. This amendment has been crucial in thwarting attempts to outlaw hate speech, as seen in New York’s Assembly Bill A7865A (2021-2022), which was opposed by free speech groups on the grounds that it violates the first amendment.
Murray Rothbard, in linking criminal law to the protection of property rights, argues that "incitement" is an element of free speech. He maintains that individuals should be held responsible for their own crimes, even if they were influenced by something they read or heard.
Bottom Line
The recent trend of criminalizing hate speech and hate crimes raises significant concerns about individual liberty. The treatment of social media commentary as a reason to jail people for "racial hatred" represents a serious threat to freedom of speech. This highlights the dangers of criminalizing "hate".
What are your thoughts on this issue? Do you think criminalizing hate speech and hate crimes is a step in the right direction or a threat to individual liberty? Share your thoughts and this article with your friends. Don't forget to sign up for the Daily Briefing, which is delivered every day at 6pm.
