The outcome of the just concluded general elections in Nigeria has filled the country with so much tension with hate speech spewing from unsuspecting citizens following narratives of tribal sentiments, ethnic bigotry and other mundane issues that have now beclouded the critical analysis of the real and germane socio-economic development issues that elections should address in a democratic society. This academic opinion piece tries to draw attention to the devastating impact that hate speech poses on the fabric of society and presents an argument for its criminalization.
Hate Speech is any public speech that expresses hate or promotes violence towards a person or a group of persons on account of race, religion, ethnicity, gender, sexual orientation, beliefs, age, mental capacity, or socioeconomic status[1]. To criminalize hate speech involves the actions of a state to prohibit any written, spoken or visual expression of what it considers as hateful and imposing punishment for offenders. In this paper, I present two arguments to support the criminalization of hate speech and further discuss the views of both opponents and supporters of this position. However, I suggest that laws banning hate speech be cautiously and judiciously considered to avoid pitfalls that may undermine its good intentions.
While the harm that hate speech does by threatening the peaceful co-existence of members of a society is not in doubt, there has been a debate on whether the government needs to prohibit it which would mean infringing on the right to freedom of speech. Some countries agree that hate speech could be potentially harmful but stipulate no legal penalty since there is no imminent danger to the target. Others have prohibited all forms of hate speech whether or not there is imminent danger. For instance, the 2019 hate speech bill in Nigeria “prohibits the use, production, publishing, distribution, presentation, or direction of the performance of any visual or written material which is threatening, abusive or insulting or involves the use of such words to stir up ethnic hatred or from which ethnic hatred is likely to be stirred up against such person from an ethnic group in Nigeria“[2]. A grievous punishment of life imprisonment was stipulated for offenders or the death penalty by hanging if the crime causes any loss of life[3].
My reasons for supporting the criminalization of hate speech are founded on the detrimental effects that it has on (1) its targets, and (2) the State. Firstly, I will start by describing the damaging effect of hate speech on its target. I consider hate speech as harmful in itself as it constitutes a form of discrimination, attack, hostility, hatred, or threats to a particular person or group of people. In defence of my position, I echo the views of Parekh who defined it in terms of its three distinguishing characteristics; it is directed against a specified or easily identified persons or a group of individuals on an arbitrary and normatively irrelevant feature, it discriminates by ascribing to them qualities widely regarded as undesirable, and promotes the view of its target as undesirable and thus a legitimate object of hostility and hence liable for expulsion or extermination[4]. The main argument here is that hate speech presupposes that one group is superior to another and thus undermines the fundamental principle of democratic equality. This becomes more vivid when considering the narcissist tendencies and anti-Semitism views of the Germans that underpinned the historical injustices, oppression, and gross atrocities committed against the Jews during the Holocaust which led to the avoidable death of about six million Jews[5].
My second argument for the criminalization of hate speech stems from its effect on the State. Here, I support Parekh’s view that the inaction of the government towards hate speech could legitimize it and thus provides a license to freely discriminate against the targets. If it goes on unchecked, it could normalise discrimination and hatred thereby promoting hate crimes – a crime, usually involving violence that is motivated by prejudice against a group of people based on race, religion, sexual orientation or other forms of discrimination[6]. This continuous form of oppression also creates feelings of suppressed resentment and hostility. While some individuals internalize these negative feelings compounded by low self-esteem to become disconnected members of society, others may respond with aggression and self-help. Both cases raise concerns that threaten the stability of the State. The unfortunate Rwandan genocide perhaps could have been averted by a proactive action to curb hate speech which incited the bloody 1994 civil war between the Tutsi minority and the Hutus[7]. Suppression of a group by another only breeds the resentment of the oppressed and breachesthe trust in the government.
Opponents of the hate speech ban often base their arguments on Mill’s view of free speech. Mill, in his book titled “On Liberty” thought that truth is important for human happiness and claims free speech leads to the truth which optimizes happiness. His view of liberty and freedom is underpinned by implicit utilitarianism. He argues that there should not be any limitation to the content of an individual’s speech since it will inhibit their civil liberties. Thus, he opposed any ban on free speech except where there is an incitement to violence that may cause imminent danger. Mill’s theory of free speech was founded on four principles; (1) the fallibility of humans – what you think is true might not be true, (2) partial truth – viewpoints are rarely wholly true or wholly false and the exchange of ideas help to get the whole truth, (3) contesting the truth – beliefs need to be contested to understand the strongest objections to them, then we can provide reasons on rational grounds to uphold them, and (4) establish the truth – free and open challenge is the best way to establish truth as a ‘living truth’ rather than a ‘dead dogma’. Mill worries that there are instances when free speech may cause harm by inciting violence and thinks that this should be criticized but suggests no ban. He posits that the limitation to free speech should only apply to its context and expression and not it’s content[8].
However, a strong objection to Mill’s case on the rights of individuals to free speech argues that hate speech could potentially silence the rights of others when there is no limitation to it. Parekh also noted that free speech like other rights presupposes a moral community whose members share commitments to fundamental human rights and are willing to accept obligations that balance certain rights against other rights and values to promote cohesion. Feinberg in his opposition thinks that causing ‘offence’ (not necessarily harm) is enough reason to limit free speech. He defined an offence as serious or profound when it is intense, sustained, many are affected, and the offence was not easily avoided nor consented to[9].
I will conclude by emphasizing that hate speech has long-term harmful consequences on individuals and society at large due to the detrimental effects it has in creating a climate of unjust discrimination against individuals or a group by stripping them of dignity, dehumanizing them, and subjecting them to long term oppression which can become normalized over time. The consequence is that it weakens the culture of mutual respect and some individuals may develop lowself-esteem and become fearful which inhibits their abilities to relate normally in society. Others may resolve into aggression or self-help which would constitute a threat to the peace and stability of the State.
These arguments point to the need to criminalize hate speech to foster the peaceful co-existence of members of a society and to portray the government as an institution that can be trusted to protect the interests of everyone. However, there is the need to be cautious in deciding the punitive measures for hate speech by avoiding draconian punishments as in the case of the Nigerian Bill which raised suspicion and serious criticism. Additionally, there is a need for clarity in what constitutes hate speech to avoid the ambiguity that may leave room for subjective interpretations. Finally, the processshould be devoid of sentimentsto gain the trust and support of the people in enacting a law that promotes justice and equality.
Notes
[1]Jonathan Wolf (2022). Who decides? Free Speech. MPP Class Note on Foundations, Week 6, Lecture 2.
[2]Federal Republic of Nigeria National Assembly, “Bill Tracker” available at: https://www.nassnig.org/documents/bill/10613#. Accessed on 1st December 2022.
[3] A review of the Hate Speech Bill by Sandra Eke (2020). Available at https://www.mondaq.com/nigeria/human-rights/880810/a-review-of-the-hate-speech-bill. Accessed on 1st December 2022.
[4]The Content and Context of Hate Speech: Rethinking Regulation and Responses, edited by Michael Herz, and Peter Molnar, Cambridge University Press, 2012. ProQuest Ebook Central, https://ebookcentral.proquest.com/lib/oxford/detail.action?docID=880678.
[5] United States Holocaust Memorial Museum. “Introduction to the Holocaust.” Holocaust Encyclopedia. https://encyclopedia.ushmm.org/content/en/article/introduction-to-the-holocaust. Accessed on 30 Nov 2022.
[6]Stop Hate Crime: Available at https://www.report-it.org.uk/what_is_hate_crime, accessed on 2nd December 2022.
[7] Rwandan Civil War. In Wikipedia. https://en.wikipedia.org/wiki/Rwandan_Civil_War. Accessed on 29 November 2022.
[8]Mill, John Stuart, and Jean BethkeElshtain. On Liberty, edited by David Bromwich, and George Kateb, Yale University Press, 2003. ProQuest Ebook Central, https://ebookcentral.proquest.com/lib/oxford/detail.action?docID=3420105.
[9] Feinberg, Joel, The Moral Limits of the Criminal Law: Volume 2: Offense to Others (New York, 1988; online edn, Oxford Academic, 1 Feb.2006) https://doi.org/10.1093/0195052153.001.0001, accessed 30 Nov. 2022.
