The Limits of Free Speech

The popular catchphrase of free speech defenders is a quote attributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it." Civil libertarians often defend and support the notion that the right to freely express offensive opinions is a bedrock human right that should not be abridged except under very narrow circumstances—typically for hate speech that directly incites violence against a person or group of persons. However, I support broader prosecution of hate speech—defined here as speech that disparages a person or class of persons based on an immutable characteristic (colour, race, origin, gender, sexual orientation, disability, and age), or their occupation, family or marital status, and religion or lack of religion. Proscribing hate speech more broadly would, I believe, foster a more inclusive, tolerant, and safer society.

Many western countries already do criminalize hate speech in a more encompassing way, although enforcement is often weak and spotty. A typical example is Canada, where it is illegal to “expose a person or persons to hatred or contempt…on the basis of a prohibited ground of discrimination” (Canadian Human Rights Act) and to “wilfully promote hatred against any identifiable group” (Criminal Code of Canada). The United States, however, stands almost alone in its veneration of free speech at almost any cost. The U.S. Supreme Court insists that the First Amendment protects hate speech unless it constitutes a “ true threat” or will incite imminent lawless action.

But societies should take action against hate speech without requiring that a few specific words by themselves must directly and immediately incite violence, or be likely to. That sets a very high bar and is difficult to prove. It also allows purveyors of hate to evade responsibility simply by not making explicit calls for violence. Further, our new digital world raises the stakes—the Internet has spawned a proliferation of hate speech along with useful information such as bomb-making instructions or the home addresses of abortion providers. This has enabled others to commit violence long after the words were first published.

Violent acts of hate are generally preceded by hate speech that is expressed publicly and repeatedly for years, including by public figures, journalists, leading activists, and even the state. Some examples include Anders Behring Breivik’s terrorist acts in Norway (June 2011), the assassination of Kansas abortion provider Dr. George Tiller (May 2009) and other abortion providers in the 1990’s, the Rwandan genocide against the Tutsis (1994), the ethnic cleansing of Bosnian Muslims in Bosnia-Herzegovina (1992-1995), and the Nazi Holocaust.

Courts of law should be able to look at broader patterns of hate speech in the culture to determine whether a hateful atmosphere inspired or contributed to violence, or would likely lead to future violence. When hate speech is relatively widespread and acceptable (such as against Muslims or abortion providers), it’s not difficult to see the main precursor to violence—an escalation of negative behaviour or rhetoric against the person or group. Dr. George Tiller endured a previous assassination attempt and a decades-long campaign of persecution waged by the anti-abortion movement, which worsened over time, especially in the last year or two of the doctor’s life. Anders Behring Breivik had actively opposed multiculturalism for years and had immersed himself in Christian Right propaganda about the supposed threat of Muslim immigration to Europe, a view popularized only in recent years by a growing army of anti-Muslim bloggers and right-wing journalists.

As these examples illustrate, we can often pinpoint the main purveyors of hate speech that lead to violent crimes. In the Norway shootings, the killer Breivik relied heavily on writings from Peder Jensen (“Fjordman”), Pamela Geller, Robert Spencer, Mark Steyn, Jihad Watch, Islam Watch, Front Page Magazine, and others. Such individuals and groups should be charged with incitement to hatred and violence. Similar culpability for the assassination of Dr. George Tiller should rest on the shoulders of the extremist anti-abortion group Operation Rescue and Fox News commentator Bill O’Reilly.

In general, anyone spewing hate to an audience, especially on a repeated basis, could be held criminally responsible. This would include politicians, journalists, organizational leaders and speakers, celebrities, bloggers and hosts of online forums, and radical groups that target certain categories of people. We also need to hold people in accountable positions to a higher standard, such as government employees and contractors, ordained religious leaders, CEOs, and the like.

Criteria by which to assign culpability could include a speaker’s past record of prior hate speech against a particular person or group, how widely and frequently the views were disseminated, and the specific content and framing of their views. In cases where violence has already occurred, judges could determine how likely it was that the violent perpetrators had been exposed to someone’s specific hate speech, and hand down harsher sentences accordingly.

The apparent assumption of free speech defenders is that offensive speech is essentially harmless—that is, just words with no demonstrable link to consequences. But questioning whether speech can really incite someone to bad behaviour seems irresponsibly obtuse. Obviously, words have consequences and frequently inspire actions. A primary purpose of language is to communicate with others in order to influence them. If that weren’t so, there would be no multi-billion dollar advertising industry, no campaigns for political office, no motivational speakers or books, no citizen-led petitions, no public service announcements, and no church sermons, along with a myriad of other proven examples where speech leads others to act.

The majority of hate speech is targeted towards gays, women, ethnic groups, and religious minorities. It’s no coincidence that straight white men are generally the most ardent defenders of near-absolute free speech, because it’s very easy to defend hate speech when it doesn’t hurt you personally. But hate speech is destructive to the community at large because it is divisive and promotes intolerance and discrimination. It sets the stage for violence by those who take the speaker’s message to heart, because it creates an atmosphere of perceived acceptance and impunity for their actions. Left unchecked, it can lead to war and genocide, especially when the state engages in hate speech, such as in Nazi Germany.

Hate speech also has serious effects on its targets. Enduring hatred over many years or a lifetime will take a toll on most people. It can limit their opportunities, push them into poverty, isolate them socially, lead to depression or dysfunction, increase the risk of conflict with authority or police, and endanger their physical health or safety. In 1990, the Canadian Supreme Court stated that hate speech can cause “loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct.” The court agreed that “hate propaganda can operate to convince listeners…that members of certain racial or religious groups are inferior,” which can increase “acts of discrimination, including the denial of equal opportunity in the provision of goods, services and facilities, and even incidents of violence.”

In democratic societies that stand for equality and freedom—often with taxpayer-funded programs that promote those values by assisting vulnerable groups—it makes no sense to tolerate hate speech that actively works to oppose those values. Further, hate speech violates the spirit of human rights codes and laws, diminishing their purpose and effect. A society that allows hate speech is a society that tolerates prejudice at every level—politically, economically, and socially—and pays the consequences through increased discrimination and violence.

The most popular solution to the problem of hate speech is “more free speech.” This seems to make sense on the surface, and sometimes works well in practice. For example, there are many outspoken atheists who do a good job of publicly defending themselves and their fellow atheists from the prejudice and hatred too often expressed by religious people. But even if the targets of hatred can ably defend themselves from verbal violence, why should they have to? Why should a democratic society privilege the right to free speech over the well-being and privacy of those with less privilege?

Most vulnerable groups, however, do not have a level playing field on which to respond to hate speech against them. They are often outnumbered, out-resourced, and out-funded by the haters, simply because of their disadvantaged position in society. Sexism and racism are still thriving in the 21st century, which means women and most minority groups have a harder time getting published and heard and taken seriously in mainstream society. Which brings us full circle—perhaps one of the reasons sexism and racism are still so prevalent in modern society is because free speech is exercised largely by the privileged at the expense of the unprivileged.

A common objection to prosecuting hate speech is that it might endanger speech that counters hate speech. For example, a critique may repeat the offending words and discuss their import, or it may subvert the hate message in a subtle or creative way that could be misunderstood by some. But context is everything when determining whether speech is actually hateful or not, so this objection seems nonsensical. Any reasonable judge should be able to discern the difference in intent or effect behind a hateful message and the speech that critiques it.

Another objection is that prosecuting hate speech removes accountability from those who actually commit the violence, turning violent perpetrators into victims of hate speech. But no-one is suggesting that hate speech causes people to act against their will or takes away their personal responsibility. Typically, hate speech creates an environment in which a person who is already sympathetic to the views of the speaker feels validated and encouraged to take action, with a reduced fear of punitive consequences and even anticipation of praise and support from the in-group that shares their views. Nothing prevents a hate-inspired murderer from being prosecuted in the same way as any other violent murderer—in fact, many countries mete out harsher penalties for hate-motivated crimes. But those who inspired the murderer should also be prosecuted separately under hate speech laws.

Many people seem to treat freedom of expression as an almost sacred, inviolable right, but this is far from the reality. In constitutional democracies, free speech is already justifiably restricted in a multitude of ways by law or policy, even in the United States. The quintessential example of prohibited speech is falsely shouting “Fire!” in a crowded theatre. Besides hate speech itself, some other generally accepted prohibitions of speech include:

•  Sedition (advocating force as a way to change the government)

• Threats

• Defamation (libel and slander)

• False or misleading advertising

• Buffer zones around abortion clinics that prevent anti-abortion protesters from harassing patients and staff

• Quiet zones near hospitals or schools

• Municipal bylaws restricting the location, size, type, content, and display of signs, posters, objects, ads, etc.

• Profanity on public airwaves

• Publication refusal, censorship, and the right to edit enforced by news websites, online forums and blogs, newspapers, magazines, radio, and other media

• Company confidentiality policies (such as employees being prohibited from sharing trade secrets or talking to the media)

• Gag orders or publication bans in contracts, court cases, and settlements

In practice, courts will look at circumstances on a case-by-case basis to see where a balance should be struck between freedom of expression and some other value or right. No single right trumps another in all circumstances, not even the right to life. For example, Canada’s constitution (Section 1 of the Charter of Rights and Freedoms) allows a fundamental right such as freedom of expression to be limited to protect someone else’s fundamental rights, such as the right to life or liberty—or in the case of abortion, women’s right to safely access a necessary medical service, which courts have determined outweighs the protesters’ right to protest outside clinics.

Some current legal restrictions on free speech are not on the above list because they are clearly illegitimate. One of those is insulting your country’s head of state, currently illegal in at least eight countries, mostly in western Europe. This offence is called “lese-majesty,” a holdover from the days when kings were divine. But if political leaders are immune to criticism or ridicule, they have far too much power over the people and the country cannot be a true democracy. In general, the public must be allowed to pass judgment on public figures, because the latter owe their position to public support in the first place, which should not be coerced or bought. For example, public figures in the U.S. are not protected from defamation unless it was done with malice—knowledge of falsehood or reckless disregard for the truth. 

Many countries also criminalize blasphemy—the criticism of religious doctrines or practices. But the desire to protect religion from criticism is simply a reflection of the insecurity of believers who doubt their own beliefs. Blasphemy laws have more in common with hate speech actually, because they often result in hateful rhetoric and violent acts against the “blasphemers.” Further, many religious people have a tendency to confuse hate speech with dissent, such as Catholics who hurl accusations of “bigotry” when someone criticizes Church policies or dogma. But hate speech is personal—it is directed against people based on their identifiable characteristics. Dissent on the other hand is speech against other opinions, beliefs, or positions. Dissent is an essential component of a free democracy, and it includes blasphemy. In other words, you should be free to attack Catholic policies that protect abusive priests, but it would be hateful to say that all Catholic priests are pedophiles.

The history of violence against abortion providers makes a very strong case for prosecution of those who disseminate hate speech against them. Almost all of this violence has occurred in the U.S., which makes a compelling argument for limiting First Amendment protections of hate speech.

On a Sunday morning in May 2009, abortion provider Dr. George Tiller was assassinated while attending church in Wichita Kansas. The killer, Scott Roeder, had been planning the act for some time and had gleaned information about the doctor’s movements from Operation Rescue—an anti-abortion group that Roeder was actively involved in and donated money to. This radical group had moved to Wichita in 2002 for the sole purpose of driving Dr. Tiller out of business, and in the seven years leading up to his murder, Operation Rescue (OR) engaged in a relentless campaign of hate and harassment against him, including aggressive picketing, numerous articles and press releases, baseless criminal charges, frivolous lawsuits, and trumped-up grand juries convened against him. (Dr. Tiller was fully vindicated in every legal battle.)

Two years before the assassination, Roeder posted on OR’s blog, urging people to attend Dr. Tiller’s church. He himself attended the church a few times, and also participated in OR’s pickets outside Dr. Tiller’s clinic. Roeder was in regular contact with OR’s President Troy Newman, as well as Senior Policy Advisor Cheryl Sullenger, who was convicted in 1988 of conspiring to bomb a California abortion clinic. When Roeder was arrested, Sullenger’s phone number was found on a post-it note on the dash of his car. Sullenger later admitted having several previous conversations with Roeder, in which she gave him information on Dr. Tiller’s habits and whereabouts, including his trial dates. In the months before the murder, Roeder had attended at least one court hearing—sitting beside OR’s President Troy Newman—to hear Dr. Tiller defend himself against scurrilous charges brought by OR.

It’s clear that Roeder was not a “lone wolf.” Perhaps Roeder did not directly involve anyone else in his plans, but no-one develops their views in a vacuum. Dr. Tiller’s murder was the natural culmination of over 20 years of anti-abortion harassment and violence directed at him and his clinic, much of it by Operation Rescue. Roeder had been immersed in OR’s violent anti-abortion rhetoric for years, so his beliefs and compulsions were fed by that environment, and thrived on it. Obviously, it played an encouraging role in the violence he committed.

Another key person who helped fuel the fire was Fox TV commentator Bill O'Reilly, who has about 3 million listeners. Between 2005 and 2009, Bill O'Reilly and his guest hosts talked about Dr. Tiller on 29 episodes, including just one month before the assassination. The most common epithet repeated many times by O’Reilly was: "Tiller the Baby Killer." Other comments by O’Reilly included: "[Tiller] destroys fetuses for just about any reason right up until the birth date for $5,000." He 's guilty of "Nazi stuff." "This is the kind of stuff that happened in Mao's China, Hitler's Germany, Stalin's Soviet Union." He “has blood on his hands.” He’s “a moral equivalent to NAMBLA and al-Qaida.” He operates a “death mill” and a “business of destruction.” “I wouldn't want to be [him] if there is a Judgment Day.” Although O'Reilly didn't specifically incite someone to murder Dr. Tiller, he put him in the cross-hairs, providing enough motivation and encouragement for someone to carry out the unspoken deed.

Of course, it wasn’t just Dr. Tiller and his clinic that were the targets of ongoing harassment and inflammatory hateful rhetoric. The reign of terror directed at clinics and providers across North America has been going on for 35 years—including 9 previous murders and 20 attempted murders of doctors or clinic staff, 100’s of arsons and bombs and butyric acid attacks, and 1000’s of death threats, stalking, clinic invasions, vandalism, aggressive pickets, and hate mail. Some shootings in the early 1990’s were directly preceded by “Wanted Posters” put out by anti-abortion groups on the doctors, complete with their home and clinic addresses and often their photographs. Doctors David Gunn and John Britton were murdered by anti-abortion extremists and had been featured on wanted posters, along with George Tiller, who was shot and wounded in 1993. (The murder of a fourth doctor on a wanted poster, George Patterson, could not be conclusively linked to an anti-abortion extremist.) The posters were deemed by a federal court in 2002 to be a “true threat” under the FACE Act, federal legislation that protects clinics from violence. Noting that the posters had preceded the murders, the court said it was the “use of the ‘wanted’-type format in the context of the poster pattern—poster followed by murder—that constitutes the threats,” not the language itself. With this decision, the judges overturned a lower court ruling that had deemed the posters and a related website to be “protected speech” because they did not directly threaten violence.

When people and courts defend hate speech against abortion providers as “protected speech,” it must be asked: Why are abortion providers required to risk their lives so their persecutors can have free speech rights? Why should doctors constantly have to look over their shoulder in fear, go to work in bullet-proof vests, pay out of pocket for security guards and other expensive safety measures, keep their home address a secret and their curtains permanently drawn shut, and see their children ostracized and bullied at school, just so their persecutors have the right to call them “baby killers”? Why does the right to free speech allow members of this vulnerable minority to be openly defamed and targeted for decades until they’re finally assassinated? And why do the families of the slain victims have to suffer in their grief and loss, because free speech was deemed more important than the lives of their loved ones?

The idea that vulnerable persons and groups should have to tolerate hate speech against them in the name of freedom of expression—often over decades or a lifetime—is offensive. We’re talking about peoples’ lives after all—this is not just a philosophical debate. The right to free speech is a fundamental value, but it should not be allowed to outweigh the basic human rights of other people, especially their right to life.