- That People of color have equal right of public access and employment (U.S.A. prior to 1964 Civil Rights Act)
- Any criticism of the current government or of the government's stated war or recruitment policy (U.S.A., Espionage Act 1917) - still in force today but "selectively" applied
- That Women are legally "persons" (Canada, prior to Edwards v Canada (1928), the Persons Case; finally decided by the Privy Council which was forced to overrule the Supreme Court of Canada)
- That Children are not a mere input factor for capitalism (much of the English speaking world prior to Factories Act, 1833 et. Seq.)
Many decried as unpatriotic "hate speech" the kneeling of 49ers Colin Kaepernick and Eric Reid during the national anthem to protest racial inequality and police brutality (lead picture, above).
All of the above are examples of "hate speech" from the perspective of many of the ruling elite of society of the time. Under the Espionage Act one could/can be incarcerated for life for, essentially, criticizing the government. The Espionage Act is a living legal museum of archaic laws of sedition redolent of the Star Chamber of the Elizabethan era. It is much more of a threat to civil discourse than "hate speech".
Conclusion:
Hate speech laws begin from a flawed legal/logical/ethical presumption that one can precisely and comprehensively define exactly what constitutes "hate speech" and that the state has the right to do so in a free and democratic society. They are unnecessary to protect the worst incitements to violence or genocide. Other provisions in the criminal code do or could be employed for that purpose without designating specific groups as super-human and others, by implication, as sub-human at the political pleasure of the state. In Canada section 464 and 264 protect any group or any person respectively from threats of genocide or death and in s. 264 of physical violence. Section 264 could offer a remedy simply by adding "..or group" to "person [who receives a threat]". And the difficulty of applying the law consistently and fairly in accordance with the legal certainty principle given vague and uncertain tests such as "incites hatred" and "likely to lead to a breach of the peace" should need no further explication.
Generalized hate speech provisions such as section 319 are either a weaponized tool for state political and social control or a well-intentioned but authoritarian fool's errand seeking public peace and harmony. Either way, they have no place in any society with a pretension to free and democratic institutions. The attempt to arrogate control of this fundamental human right to the state places an undesirable chill on free social discourse, as in some instances it is intended to do. It is the overreach of an intrusive nanny or big brother state. It is the infantilization of fully formed adult citizens in an individual, freedom respecting democracy who must be allowed to discuss, define and criticize their society and culture, however imperfect that process may be. Freedom must allow imperfection. Indeed freedom must even allow hate speech insofar as it does not entail overt threats of violence or homicide. The attempt by the state to control human emotion, even the negative, is itself inhuman. The antidote to "wrong speech" is counter-speech and intellectual debate, not censorship, deplatforming or hate speech laws.
At a time when a violently out of control militarized police are murdering harmless citizens in the open streets with impunity should we expend resources prosecuting crude remarks made by drunken boors in a bar ? And risk designating as "hate speech" truly cogent social and political expressions ?
The errant mindset behind hate speech laws either loathes the idea of free speech or is incapable of comprehending its essence.
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