Should Hate Speech be Banned?
Speech is a danger if it directly incites people to physically attack the targeted group. But if speech only offends a targeted group, this is not considered a crime.
April 1, 2008
Fred Foldvary, Ph.D.

The government of Canada prohibits speech directing hatred against persons of a particular color, race, religion, ethnic origin or sexual orientation (the "Hate Propaganda" sections 318 and 319 of the Criminal Code of Canada). Oddly, Canadian law permits hate speech if it is religiously motivated.

In contrast, in the USA, the First Amendment to the US Constitution has protected speech other than slander, libel, incitement to riot, and obscenity. Some religious preachers in the US have advocated genocide, and their hate speech is protected by the First Amendment. In Canada as well as some other countries, people are not allowed to incite or promote hatred or advocate genocide. For example, Sweden enacted a constitutional amendment in 2002 which includes sexual orientation in the groups that one may not target with "unfavorable speech." The United Kingdom bans incitement to racial hatred in its Public Order Act 1986.

These hate-speech laws are arbitrary and contradictory. First of all, by providing a list of groups that the law applies to, other groups are left as targets of hate speech. For example, the Canadian speech ban does not apply to women as a group. So one can utter hate talk about women, but not about some ethnic group. But why is it OK to say bad things about women but not about Italians or Germans? Moreover, if there is a religious bias against, say, Jews, why is it OK to express hatred against Jews if it is based on religious beliefs and not OK if it is a non-religious prejudice?

The basic problem with banning hate speech is that it prohibits acts which are offensive but not harmful. In natural moral law, as expressed by the universal ethic, it is evil to coercively harm others, but not evil to merely offend someone. If offensive speech is banned, then one is prohibited from speaking any time somebody does not like what you say. If offensive speech or behavior is prohibited, then the law is based on the arbitrary whims and beliefs of anyone.

The law should prohibit coercive harm to others regardless of which group categories someone belongs to. In France, for example, some Muslims are attacking Jews. In some neighborhoods, Jews are in danger even entering or leaving a synagogue, as Muslims throw rocks at them. Because of physical attacks and threats, Jews are abandoning these neighborhoods in France. This is not merely hate speech, but physical coercive harm, and it should be prohibited and penalized not because the target is a religious group but because coercive harm to others is evil, and the law should prohibit and penalize any coercive harm to others.

Hateful speech does hurt the feelings of the targeted group, but if it does not put them in physical danger, it is not coercive harm. Hateful speech can be countered with opposing speech. Speech is a danger if it directly incites people to attack the targeted group, so if someone says, “Let’s go and attack lesbians,” and people then do attack them, that speech should be penalized, as it is part of the physical attack. But if someone merely expresses contempt for lesbians, that should not be banned.

The response to physical attacks should include both criminal and civil remedies. One should be able to sue someone who attacks you, even if he just spits on you or pushes you. High penalties for physical attacks would deter most of them.

The police in many areas are lax on dealing with violence, but zealous in acting against victimless crimes. They are in many cases following the culture. Television and movies depict the most horrible violence, yet if particular words are uttered, there are high penalties.

One can understand laws prohibiting hate speech, since the designated groups have been subject to hate, prejudice, and negative discrimination. In many places, homosexuals, religious minorities, and members of racial and ethnic groups have been physically persecuted, and the law is trying to protect them. But there is moral confusion as to what is good and evil. By going too far and stifling free expression, the law itself becomes evil.

Canada, the U.K., Sweden, and other countries have gone too far. The U.S. also goes too far when it inflicts huge fines for broadcasting bad words and for brief depictions of body parts. It should never be illegal to merely offend others. The law should only prohibit invasions into the domain of others - physical attacks and threats to physically attack.

That is the natural moral law that, as philosopher John Locke said, is based on reason, which “teaches all mankind who will but consult it.” Locke said that consulting reason, we should all be able to come to the same logical moral conclusions. Unfortunately, most folks don’t even try to use reason in making moral judgments, but use their prejudices, even if well intentioned. Good intentions without the full use of reason leads to further oppression in the end.

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Fred Foldvary, Ph.D.

FRED E. FOLDVARY, Ph.D., (May 11, 1946 — June 5, 2021) was an economist who wrote weekly editorials for since 1997. Foldvary’s commentaries are well respected for their currency, sound logic, wit, and consistent devotion to human freedom. He received his B.A. in economics from the University of California at Berkeley, and his M.A. and Ph.D. in economics from George Mason University. He taught economics at Virginia Tech, John F. Kennedy University, Santa Clara University, and San Jose State University.

Foldvary is the author of The Soul of LibertyPublic Goods and Private Communities, and Dictionary of Free Market Economics. He edited and contributed to Beyond Neoclassical Economics and, with Dan Klein, The Half-Life of Policy Rationales. Foldvary’s areas of research included public finance, governance, ethical philosophy, and land economics.

Foldvary is notably known for going on record in the American Journal of Economics and Sociology in 1997 to predict the exact timing of the 2008 economic depression—eleven years before the event occurred. He was able to do so due to his extensive knowledge of the real-estate cycle.