The discussion about “hate speech,” the possibility of regulating (limiting) it and the decision to hold its authors accountable (sanction) has emerged these days in Argentina in the context of growing polarization and political tension. I would like to point out in these lines why the regulation of “hate speech” represents a solution that is not attractive and, above all, why this debate appears poorly motivated and poorly directed.
I begin by making it clear what is the fatal flaw that, in our country (as in other cases in the region), has been affecting the public conversation on “hate speech.” The defect that can be seen in the matter is the following: the initiatives to censor “hate speech” appear directed, almost exclusively, to include within this type of “adjustable” figures, precisely, the type of expressions that the category “ hate speech” leaves aside. I am referring to expressions of political criticism. Indeed, almost everywhere in the world, critical political speeches are considered, rather than possible targets of legal limitations, speeches subject to a very special overprotection. Perhaps for this reason (because they recognize the difficulty of their undertaking), the public officials who are most anxious to censor what is most protected appeal to a category of speech that has occasionally been subject to regulation (“hate speech”). ) as a “last resort” or excuse to “trap”, within that network of censorship, the expressions that they most dislike (the speeches of those who criticize them).
The fact is that, from its origins, the idea of “hate speech” appears aimed at dealing (not with political expressions, but) with extreme cases, linked to histories of aggressions carried out –especially, but not only, from the State– against unpopular minorities (groups against which majorities show persistent prejudice). In this way, we habitually speak of racial, ethnic, linguistic, sexual or religious minorities. Commonly, these are cases where there is a history of serious aggression, which the States in question want to prevent from being repeated. Thus, for example, in Germany legislation was passed against expressions of “hate”, in light of the Holocaust and genocide, and as a way of avoiding the repetition of a history in which the State ended up embodying persecution and violence against ethnic and religious minorities. In the United States, by contrast, regulations on “hate speech” (“racial hatred, especially directed against African-Americans) have occasionally been discussed, but they continue to be resisted doctrinally and judicially, with good reason.
For example, recently, in the case Matal v. Tam, of 2017, the Supreme Court of the United States rejected any initiative aimed at limiting “hate speech” under an old principle (sponsored by the revered Justice Holmes, at the beginning of the 20th century) according to which “The right of freedom of expression protects the freedom to express the thought that we hate”. The greatest jurist of the 20th century, Ronald Dworkin, defended similar ideas, which he exemplified with the case of Salman Rushdie, a writer who was censored and persecuted by fundamentalists based on the “absolute certainty” (that of the fundamentalists) that Rushdie he was wrong, and the conviction that many people would feel hurt or insulted if his ideas were published. “Beware” –said Dworkin, citing the example of the persecution of Rushdie– of “legal principles that are only reliable when their application is left in the hands of people who think like you”.
To this line of theoretical or philosophical arguments against the regulation of “hate speech” we can add another, referring to the ineffectiveness that such regulations usually show in relation to the main purposes they pursue. The key question, in this case, is whether the defenders of “hate censorship” have more or less reliable data that confirm the sense of adopting this type of regulation, which is so risky in terms of freedom of expression (risky, especially , for the tragic “slippery slope” they open). Is there, for example, any reason to think that in Germany, after having regulated “hate speech”, or prohibited “Holocaust denial”, the weight of this type of speech has decreased? Or is it that we rather have data that suggests the opposite? Have these prohibitive rules served any purpose or – on the other hand, and as it seems – have they rather helped to encourage or make attractive the type of speeches that they intended to discourage? (Note, however, that the non-limitation of “hate speech” is obviously compatible with the investigation, prevention and punishment of any effective damage caused against any public figure). In short, we do not have, to date, conclusive public reasons to trust the value and effectiveness of such censorship rules.
Now, if the defense of regulations against “hate speech” is already difficult in itself, it becomes directly impossible when -as in Argentina- it is intended to extend such censorship to cover, in a central way, expressions of hate speech. political criticism. These expressions, I reiterate, are not only not considered a habitual part of “hate speech” –not only are they not usually limited in comparative law–, but rather, and to the contrary, expressions are habitually ultra-protected by the legislation. Indeed, in terms of freedom of expression, political criticism speeches are at the highest level within the protected speeches. There is no anger, cynicism or virulence there to serve as an excuse. Rather the opposite (above all, since rulings like The New York Times v. Sullivan, a ruling that in Argentina we have invoked repeatedly to request protection for the political protest developed in the streets). For decades, it has been an established principle of international law that public debates can (as they often do) include “vehement, caustic, and sometimes unpleasantly sharp attacks on the government and public officials.” Much more than that: since then, it has become clear that criticism of those in positions of power must prevail over any invocation of the “right to honor” that the official on duty may make, and also (notably) that the right to criticism it even protects false information, if it is that these were not introduced with “real malice” (“malice” that the aggrieved party must prove).
I would conclude this brief critical introduction to a vast subject, with a small political observation, referring to the elitism and arrogance that characterize the defenders of censorship. It is curious to note how those who encourage limitations on “hate speech” (“political hate”, in particular) see themselves as completely immune from provocations and fake news in front of which part of the population would fall hypnotized (to the point of being encouraged to commit an assassination, if that is what the big media subliminally suggest). A similar argument (which assumes that part of the citizenry behaves like a zombie in the face of what the media says) would require limiting suffrage only to their own: how to allow people who are likely to be clouded by false or hateful speech to vote, that speech that we urgently need to prevent them from listening to.