When Should Certain Speech Be Criminalized?

When should certain speech be criminalized?

It’s a tough question to answer because it really depends upon the society, although certain standards must apply. Each society can, and should, decide for itself what speech results in some form of prosecution as long as they adhere to a certain principle — does it directly affect public safety.

I remember several years ago when I was working on a USAID-funded program that trained law enforcement from the former Soviet Union in the suppression of hate crimes.

COT - Ride Along Group in Front of Radio Car

The toughest question we faced was, “how do you combat extremism without limiting speech that promotes extremism?” We did our best to explain that, in the USA, speech that promotes extremism is reprehensible and should be confronted, but that, since we do not have a recent history of such speech creating a direct threat to public safety, we have not criminalized it. However, whenever speech directly encourages somebody else to commit violence against a target, then s/he is responsible. So, in the USA, one is legally allowed to say, “Ethnic Group A is subhuman,” but one cannot say to a disciple, “Go, under my authority, and kill somebody from Ethnic Group A because they are subhuman.” Other forms of speech in the USA — such as the old classic, yelling fire in a crowded movie theater when there is not one — is a crime because it directly puts people’s lives in jeopardy.

Elsewhere in the world, promoting extremism with speech has, in fact, proved itself to be a direct threat to public safety. In Europe, for example, the elevation of Nazism started with (hate) speech, so that in many countries the promotion of Nazism (including Holocaust denial) is considered a public safety threat, and therefore, is criminalized. Nazism clearly was Europe’s worst disaster in terms of wreaking havoc and destruction upon lives and infrastructure. European countries have a serious motive to suppress its resurrection. This is what I mean that each society needs to decide for itself when to ban certain speech. Banning Nazi hate speech makes more sense for Germany than for the USA in light of recent history, even though the words are equally vile no matter where they are.

However, all this said, it is imperative to guard against abuses. Many places try to ban speech because it is deemed offensive, upsetting, inappropriate for their cultural values, etc., but has not shown any direct threat to public safety. Or, at times, they seek to ban speech that upsets people enough to encourage them to riot in response, as if the speechmaker is responsible for how people behave when reacting emotionally. In such cases, banning speech is far more difficult to justify. When speech is banned for no other reason than to marginalize certain people who have not shown any threat to public safety, then it is just wrong because it institutionalizes discrimination.

Recognizing certain speech as offensive but not criminal is why, in the USA, we differentiate between a “hate crime,” and a “hate incident.” Hate crimes are criminal acts that are motivated by feelings of prejudice and negative biases against someone because of his/her identity. They threaten the social fabric of a diverse society. Hate incidents are vile, hateful acts which society deems foul and inappropriate, but that nevertheless are legal because they do not directly result in abuse (unless the speech elevates to the level of harassment). A hate incident is calling someone a racial epithet. A hate crime is chasing someone down the street and repeatedly screaming threatening racial epithets in his/her face because it is meant to harass and intimidate the victim; or is vandalizing that person’s house by spray painting that same epithet on their garage because that would be a destructive act.

Freedom of speech must be safeguarded. So too must public safety. Keep that in mind the next time you wonder about the criminalization of certain forms of speech.