I recently read a Washington Post article calling for America to adopt ‘hate speech laws.’ The subject is much in the air at the moment, with mantras like “hate speech is not free speech” being touted from many corners.

This topic touches on one of the key principles of the American republic: the idea of freedom of speech. There is a lot that could be dealt with in that regard, which would require whole essays to adequately explore.

But fortunately the issue of hate speech itself is not difficult. It comes down to a very simple question: “What is hate speech?”

The Inherent Contradictions in Defining Hate Speech

The question is simple, but disturbingly tricky to get a real answer to. Common answers would be along the lines of, “speech expressing hatred or hostility against marginalized groups,” which isn’t a definition at all but just restating the same thing in slightly different words.

The best definition I’ve found so far is from the infallible Wikipedia and reads, “speech that attacks a person or a group on the basis of protected attributes such as race, religion, ethnic origin, national origin, sex, disability, sexual orientation, or gender identity.”

Trouble is, that doesn’t really clear anything up. What constitutes an ‘attack’ in this sense? And, equally importantly, what attributes are to be considered ‘protected’ and why and to what extent? Most importantly, who gets to decide these things and on what grounds?

Given this definition, anything or nothing could be regarded as hate speech depending on how it is interpreted and, more importantly, depending on the worldview of those involved.

For instance, should the statement “homosexual behavior is sinful” be considered hate speech? Someone might feel that is an attack and so would call it hate speech, but someone else could just as easily argue that it is not an ‘attack’ but only a statement of reality or at least of a legitimate point of view. Either side could be maintained, but if ‘hate speech’ is to be forbidden, then one or the other must be endorsed legally, which means one or the other worldview must be made the official position of the state.

But there is something else. Assuming the statement “homosexuality is sinful” is condemned as hate speech, what about the statement “Christianity is hateful”? That is much more aggressive, and since ‘religion’ is listed as a protected class, then surely this would count as hate speech as well.

But notice what happened. To say that the former statement is hate speech implies the latter statement, which then, if we are to apply the standard consistently, also must be hate speech. To condemn hate speech, in this case, is to practice it by its own definition.

Nor is this contradiction only inherent in this one instance. As shown above, to practically enforce hate speech legislation at all is to make this position and not that position the official state policy and brand the alternative as unacceptable and hateful. But the very act of so doing necessarily condemns or ‘attacks’ those who hold it, and hence could itself be interpreted as hate speech. The only way to avoid this contradiction would be to make the standard for ‘attack’ so strict as to render the whole thing redundant (as open calls for violence or intimidation are already illegal).

Hate Speech Presumes an Established Worldview

Another key problem may be illustrated merely by noting that there is a particular demographic that receives an enormous amount of hatred and vitriolic language directed against it, that historically has been a frequent victim of violence both large scale and individual, and yet which no one, to my knowledge, has ever suggested protecting under hate speech laws. Of course I’m speaking of the Rich.

The issue isn’t that we much protect the Rich. The issue is that the hate speech concept explicitly only applies to those certain forms of hatred, which its advocates, for reasons best known to themselves, have fixated on. Thus, it is not vitriol or inciting speech as such that they object to, but only speech that targets their particular values.

I bring up the case of the Rich to demonstrate that this uneven application is inherent in the very definition that its adherents give to hate speech. Any fair and even application of such a concept would have to include economic status, social position, and political beliefs among protected categories.

This would, of course, exacerbate the inherently contradictory nature of the idea to the level of insanity, while effectively rendering all discourse illegal. Hatred can be felt and expressed along any line of human experience, meaning that, assuming an even application of this principle, every topic imaginable would be a potential source of hate speech, and since the qualification of ‘attack’ is not given, any speech that one person happens to find offensive or difficult or painful could be regarded as such an attack.

Under such a situation, it would of necessity be left to the judge or the lawyers to decide in each individual case, meaning that a hate speech law, by its nature, calls for the censoring of speech at the discretion of a particular official. Again, this not only permits, but demands the imposition of a particular worldview, not by any official act, but by the arbitrary rule of particular judges.  

Note that all this is so even while merely considering the given definition in the abstract and assuming a relatively fair and even application, which nothing in recent history should lead us to expect.

In short, the idea of hate speech laws is at once vague to the point of being meaningless, self-contradictory, and selectively applied. Fundamentally, it is a would-be legal concept founded on emotive language (‘hate,’ ‘attack’) rather than objective or legal language (e.g. ‘false’, ‘defamatory’), which means it is ambiguous by its very nature.

Ambiguity in law, as indicated above, is an extremely dangerous thing. It allows the state or the ruling authority to apply the law in essentially any way it desires without being bounded by its own rules. In this case, it is particularly egregious as any application of that ambiguous law necessarily also involves legally imposing a particular worldview without explicitly doing so.

Now, the answer may be returned that a reasonable person can tell what is and is not hate speech. This actually makes the problem much worse. It is true that the average person has an idea of ‘hate speech’ in his mind—the sort of blatant, obvious, crude hatred he sees in movies or documentaries, full of threats and insults. The problem is, this image is not going to be used as the legal standard. That will be whatever a lawyer or a judge or a politician can make it to be. However, this image will color the average voter’s understanding of the issue and the surrounding rhetoric so that he will think about it in terms of the image he has of ‘hate speech.’

In other words, the law will be one thing in fact while the average citizen believes it to be something else.

In summary, ‘hate speech’ doesn’t actually mean anything specific, but it sounds like it does. The result is that the state can not only do whatever it likes and censor whatever speech it desires, but it can do it all with the positive approval of the population, because the average citizen will view any given applications of the law through his own subjective interpretation of it, up until the moment when it falls on him.

Thus, hate speech legislation is a blank check. It is the kind of law that anyone anywhere could be made out to have violated at any time, but which sounds bad enough that the population as a whole will be slow to object to its being enforced.

I hope I don’t have to point out that this would be a far worse situation than having to deal with expressions of hatred and hostility in public life.