For all my bluster and polemic, I am tormented by a fundamental uncertainty when it comes to hate speech laws. My position on hate speech is unequivocal – I am against it. Spreading hate is abhorrent, and its effects tend to move beyond the words themselves. I am particularly aware of the fact that anti-gay hate speech is part of what is considered civilized discourse in this part of the world, and that the prevailing anti-gay attitude is resulting in serious and often deadly consequences for gay people.

The situation is much worse in Africa:

The South African ambassador to Uganda, a former columnist for South Africa’s Sunday Sun paper, has been found guilty of hate speech for an anti-gay article. South Africa’s Equality Court fined Jon Qwelane $14,450 (£8,920) and ordered him to apologise for promoting hatred in the column published in 2008.

Regular readers will need no reminding about how serious the problems for gay people are in Uganda. Anti-gay hatred has reached the level where people are attempting to pass legislation that would make being gay a jailable offense, with bonus death penalty for ‘repeat offenders’. This is the level where simple hatred has gone beyond privately-held beliefs and entered into the realm of bigotry with the force of law behind it.

However, I am still conflicted over the outcome of this story. The issue with criminalizing speech – any speech – is that it tends to slowly creep toward criminalizing unpopular speech under the guise of labeling it ‘hate’. Many people would label the kind of vociferous criticism of religion that appears on this and other atheist websites as ‘hateful’. Much of this comes from a fundamental misunderstanding of the word ‘hate’, some of it comes from the inability to separate a criticism of ideas from a criticism of those that hold those ideas, and some of it is the knee-jerk reaction that happens whenever religious is lampooned.

My concern, therefore, is partially selfish. Even if I were given the opportunity to explain the difference between criticism of sacred ideas and ‘hate speech’, it’s unlikely that judicial authority or the court of public opinion would buy the argument. Popular ideas need to be criticized, because they are the ones that are most often accompanied by legal authority, even when they are wrong or harmful. They are also the least likely to be examined critically by those that agree with them a priori. Punishing those that express criticisms serves to chill fair and open-minded scrutiny.

This example, however, is not a question of fair and open-minded scrutiny. It is a question of victimizing a group of people based on intentional lies and distortions of a segment of humanity whose ‘critics’ don’t want to understand the other side of the story. Those kinds of criticisms are not the kind of thing we think of when we talk about protecting free speech – we think of it in terms of ensuring that police forces aren’t allowed to shut down protest against a corrupt government. However, that idea assumes that popular opinion is on one side of the issue, and the authority is on the other side. I have no doubt that Mr. Qwelane sees himself as standing up against the ‘gayification’ of Africa, and thinks that his is a noble cause.

There is another issue that doesn’t seem to filter into the discussions of hate speech laws – the issue of whether or not they work. This is a real scientific question I’d like to see answered: does the existence of legislation against hate speech reduce its incidence or effect? I’m inclined to think that while fines or prison terms might prevent people from going out in the public square and screaming hateful things in front of police officers, it will not meaningfully reduce the amount of hateful speech spoken among individuals or in groups. We know from observation that while explicitly racist speech is wildly unpopular, there are other ways of conveying the same ideas without saying the words themselves.

I can see the appeal in banning hate speech, because it seems like a tidy way of disposing of a problem. However, there are no quick and easy solutions to systemic problems such as anti-gay homophobia or racism. Hate speech laws are very tempting to abuse, especially since they can be ushered in with high public approval ratings. After all, they are brought in with the very best of intentions:

“We are hoping really that this finding will send a message to community members, a message that says gay and lesbian people have an equal right to the protection of their dignity,” said Vincent Moaga, spokesman for the South African Human Rights Commission, which initiated the complaint against Mr Qwelane.

But there is no real evidence that, beyond donating the proceeds from the fines to LGBTQ advocacy groups, criminalizing hate speech reduces it. More likely, it just makes the identification of hate speech more difficult as bigots learn to adjust their language. And then, as the lines become more and more obfuscated, more and more types of speech are classified as “hate” until even legitimate criticisms are subject to punishment.

My conclusion on this is that, absent of empirical evidence that hate speech laws reduce the amount of hate speech or have a meaningful impact on the climate of hate, coupled with their potential for abuse and the fact that they violate human rights to free speech, I cannot support them. However, I think there is value in identifying hate speech and making it clear that governments and other large organizations aren’t okay with it. Like when Laura Schlessinger did, well… whatever you want to call it… she wasn’t sanctioned by the government or fined – she was just made to leave.

As I said, I recognize that there are many weaknesses in my position, and I am open to evidence showing that laws against hate speech are useful or warranted, but I suspect such proof won’t be forthcoming.

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