The Folly of Criminalizing ‘Hate’

Written by Wanjiru Njoya via The Mises Institute,

Many people were shocked when more than 1,000 protesters were arrested and jailed in the UK for a variety of offences, including ‘violent disorder’ and stirring up racial hatred. Most shocking were the cases of those arrested for posting comments on social media about the riots, despite not being at the scene. and there was no evidence that anyone who had participated in the riots had read their comments.

In societies where the value of individual liberty is highly valued, the sole purpose of criminal law should be to restrain and punish those who commit acts of aggression against other people or their property.

Criminal law should not be used to prevent people from “hating” others or to force them to “love” one another. In announcing another round of legislation “to expand the list of charges that can be prosecuted as hate crimes,” New York Governor Kathy Hochul said “In these challenging times, we will continue to stand up for each other. We make it clear: love will always have the last word in New York.” To that end, she introduced “legislation to significantly expand the eligibility for prosecution of hate crimes.”

Attempts to promote love between different racial or religious groups in society, for example by accusing people of stirring up “hatred” when they protest against immigration, ignore the role of criminal law. Threats to public order involve harming the person or property of others, as in a violent riot, and not merely displaying “hatred” towards others. However, public order offences are increasingly linked to hate speech or hate crimes.

Laws that prohibit hate speech and hate Crimes typically define “hate” as hostility based on race, sex, gender, sexual orientation or religion. Often, hostility is simply understood as words that insult others. In the UK, for example, the Communications Act 2003 prohibits sending “any message or other matter which is grossly offensive or of an indecent, obscene or menacing character.” The Online Safety Act 2023 focuses on illegal online content, including both “incitement to violence” and the publication of “racially or religiously aggravated public order offences.” Online behavior includes writing messages or publishing blogs or articles on websites.

Given that incitement to violence is already a crime – “conduct, words or other means that incite or naturally lead to riot, violence or insurrection” – there seems to be no clear purpose in adding the concept of “hate” to such crimes. For example, writing “burn down the store” on social media might be considered incitement to violence, but writing “burn down the Muslim store” would be categorized as a hate crime in the same circumstances. Arson (essentially setting the store on fire) is a crime, but based on the racial or religious identity of the store owner, arson is considered an “aggravated” crime – a hate crime, even though the damage in both cases and the loss suffered by shopkeepers who are victims of arson differ not only on the basis of their race or religion.

Therefore, There is no need for laws against “hate speech” to further “criminalize” something that is already a crime. The conclusion is inescapable that the sole purpose of these “hate” laws is to create a special category of crime based entirely on the identity of the victim. Identity politics is now part of criminal law. “Hatred” based on race or religion is now a priority in criminal law enforcement, with resources increasingly diverted to this goal. New York, for example, has allocated a $60 million budget to “combating hate.”

Events in the UK over the past month provide a chilling illustration of the consequences of an identity-based approach to law enforcement. In the ongoing police purge of rioters, those who posted “hate speech” on social media platforms have been charged with “incitement to racial hatred” and sentenced to prison terms of up to two to three years. Far from combating “hate,” this is likely to only fuel resentment and racial hostility.

Freedom of Speech and the First Amendment

The US has so far managed to avoid this socially destructive path, as the UK has, thanks to the First Amendment of the US Constitution. The importance of the First Amendment in thwarting efforts to ban “hate speech” is evident in New York Assembly Bill A7865A (2021-2022), which states that demeaning or vilifying someone on social media based on his or her identity is hateful conduct and therefore illegal. The bill requires social media networks to report “hateful conduct on their platform,” and defines hateful conduct as “the use of a social media network to defame, disparage, or incite violence against a group or class of persons based on race, color, religion, ethnicity, national origin, disability, gender, sexual orientation, gender identity, or gender expression.” This attempt to regulate “hateful conduct” is a clear restriction on free speech, and has predictably been opposed by free speech groups on the grounds that it violates the First Amendment.

Tying criminal law to the protection of property rights, Murray Rothbard argues that “incitement” is an element of free speech. Under the principle of free will, no one can claim that the reason he committed arson (a crime against another’s property) was because he read a social media post that said “burn down the store.” The arsonist would be responsible for his own crime. He may have read the post, but the choice to go out and commit the crime was his own. Rothbard explains:

Would it be illegal, we might next ask, to ‘incite to riot’? Suppose Green exhorts a crowd to ‘Go! Burn! Loot! Kill!’ and the crowd does just that, while Green has nothing further to do with these criminal activities. Since everyone is free to follow whatever course of action he chooses, we cannot say that Green somehow incited the members of the crowd to their criminal activities; we cannot hold him responsible for their crimes at all because of his incitement. ‘Incitement to riot’ is therefore a pure exercise of one’s right to speak without thereby becoming involved in a crime.

Rothbard adds that much of course depends on context: “There is a world of difference between the head of a criminal gang and a soapbox speaker during a riot.”

One of the Britons jailed for social media posts wrote on Facebook that “everyone with their dog should kick the f—k out of the Britannia Hotel,” a hotel known for housing immigrants. The author of the post, a 28-year-old with no significant following, was not present at the riots himself, and there was no reason to think that those present at the riots had read his post or intended to follow his incitement. In that sense, he appears to have been nothing more than a “soapbox orator” commenting on the riots from the safety and comfort of his armchair. However, he was charged with ‘threatening, insulting or abusive words or behaviour intended to stir up racial hatred’ and was sentenced to 20 months in prison.

That social media commentary is now being treated in this way as a reason to lock people up for “racial hatred” poses a serious threat to individual liberty and illustrates the folly of criminalizing “hate.”