How Hate Speech Laws Actually Work

An instructive example out of Kenya (and a few from our own backyard)


NYPD's Hate Crime task force investigates graffiti as a possible hate crime, August 2014
Paul Martinka/Polaris/Newscom

The most baffling thing about the people—mostly liberals—who push for laws against "hate speech" is their apparent inability to imagine these bans backfiring. In their zeal to punish those who spread sexist, racist, transphobic, or otherwise unfashionable speech, they too often ignore the ways tools of censorship—including hate speech laws—are used to suppress religious, social, sexual, and political minorities around the world.

Consider Kenya. "There is growing evidence that the government is using prosecution for hate speech as a tool to silence its opposition critics," John Onyando writes in the Nairobi Star. "The norm is incendiary speech by pro-government politicians and online activists going unchecked while law enforcement agencies enthusiastically pounce on the mildest expressions by critics."

Kenya's agency tasked with enforcing laws against hate speech is the National Cohesion and Integration Commission (NCIC), formed in 2008 to address ethnic conflicts in the nation. In practice, the agency mostly homes in on those who speak out against the Jubilee Alliance, the political coalition associated with President Uhuru Kenyatta and Deputy President William Ruto. The NCIC has prosecuted Sen. Johnstone Muthama, a leader of the Coalition for Reform and Democracy, which stands in opposition to the Jubilee Alliance; Allan Wadi Okengo, a student activist who criticized Kenyatta on Twitter; student leader Seth Odongo; and blogger Robert Alai, who called Kenyatta an "adolescent president." Okengo, Alai, and Odongo were all sentenced to time in prison.

Moses Kuria, a Parliament member from Gatundu South—home constituency of President Kenyatta and his father, former President Mzee Jomo Kenyatta—was also arrested. But the NCIC invited Kuria to participate in a reconciliation program in lieu of trial, an option the other men were not offered. Only after Kuria continued to post inflammatory material online during the proceedings did the commission rescind its reconciliation offer. And no action was taken when, on national television, Kuria told a group of young people whom he had given knives to "cut up someone if you feel like it."

"One can't avoid the inference that hate speech is an actionable crime only when perpetrated by opposition leaders and activists," Onyando concludes.

Perhaps you think such a selective use of hate speech laws can happen only in countries with especially corrupt or unstable governments. Think again. Because "hate speech" is not narrowly defined, it's up to those in power to decide what qualifies as hate and what doesn't. That often depends on who the speaker is and who has powerful people's sympathies.

In 2012, a British teenager who denounced British military actions in Afghanistan was arrested and charged with "a racially aggravated public order offense."

The First Amendment theoretically pre-empts such laws in the United States. But a lot of Americans favor them nonetheless. A 2014 YouGov poll found that nearly equal numbers of Americans support and oppose laws that would "make it a crime for people to make comments that advocate genocide or hatred against an identifiable group based on such things as their race, gender, religion, ethnic origin, or sexual orientation." Fully 51 percent of Democrat respondents voiced their support.

Meanwhile, colleges and universities—even the public ones that are supposed to follow the First Amendment—have been using the specter of hate speech to justify banning controversial speakers, institute prior review of student newspapers, and implement other forms of censorship and intolerance. At Berkeley, there have been pushes for restrictions on everything from student editorials to fraternity party themes. At Dartmouth, student leaders recently called for a "full inquiry" into a "hate speech" incident involving campus flyers advertising merchandise bearing the school's former sports mascot, the "Dartmouth Indian."

Much of this activism is aimed at things deemed not sufficiently progressive, but some of "the most potent of such campaigns are often devoted to outlawing or otherwise punishing criticisms of Israel," as Glenn Greenwald reported at The Intercept. He pointed to recent action against University of Illinois professor Steve Salaita who had a job offer rescinded due to his "uncivil" denunciations of Israeli conduct in Gaza.

Outside college campuses, there are plenty of ways to punish alleged hate speech that (may) circumvent First Amendment concerns, especially when the speech involves other illegal activity (like spray-painting a building) or could be construed to involve illegal activity (like making hyperbolic "threats" online).

In early 2015, a Brooklyn teen was arrested for a Facebook post featuring emojis of a gun pointed at a cop. One can't imagine prosecutors showing the same zeal if it weren't an authority figure being "threatened."

The Internet is a hotbed of derogatory comments, unserious threats, and all manner of vitriol each and every day, but prosecutors tend to reserve monitoring and investigation for those whose views are unpopular—such as ISIS sympathizers and Holocaust deniers—and those who criticize judges, police, and others in positions of power.

Before liberals rush to endorse laws that would give them even more leeway to punish speech, they should pause to ponder whether they might ever feel the need to criticize authority in "uncivil" terms themselves.

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  1. Nah, they’ll always be in power.

    1. dude it’s like a generational shift or something. can you imagine any millenials not supporting transgender rights (for example)? while i do think there is probably some truth to this, that’s also just some elements of the republican party NOW. political parties never change their views. on anything. that would be like putting expediency over over integrity, and i can’t believe that anyone who dedicates their life to public service would do something like that

    2. the real political divide at the moment is progressives vs. liberals. i know lots of democrats call themselves all three, but progressivism is just the current form of collectivism, which is really not liberal at all. this divide cuts across parties, unfortunately. it just takes different shapes at different times and in different people’s hands.

  2. In order to police “hate speech”, you need suitable officials — who might as well be called thought police, because that would be their roles. No wonder Orwellian liberals like the idea so much.

    1. Laws restricting free speech have been popular with monarchies, theocracies, and Christian democracies long before there even was anything like a modern liberal.

  3. To the left, simple disagreement is hate. The left feel as if they, and only they, are truly not racists,homophobic, bigoted, ect…. So by that thinking, and I use that word loosely, by disagreeing with them you must be racist, homophobic, bigoted, ect… And therefore, disagreement is hate.

    1. Whereas to the right, disagreement with the party line is blasphemy, terrorism, or corruption of youth. The left and the right are pots and kettles calling each other black.

  4. Need appropriate Tee shirts:

    “The 1st amendment says I can tell you to
    SUCK IT!”

    1. That’s hate speech. Please report to your nearest rehabilitation center…

  5. Kenya’s agency tasked with enforcing laws against hate speech is the National Cohesion and Integration Commission (NCIC)

    And the winner of the sinister government name contest is…

  6. Two things.

    First, if you really want to discredit the idea of “Hate Speech Laws”, just point out that America had them. Blasphemy laws. And if you run into someone that thinks those laws are a good idea, point out that blasphemy laws would prohibit Piss Christ as well as “Draw Mohammad Day”. For some reason most people that think the government enforcing religion is a good idea forget that it wouldn’t just enforce *their* religion.

    Second, I did a quick Google News search and couldn’t find any American activists or legislators seriously talking about “Hate Speech Laws”. “Hate Speech” in general? Sure. But codifying prohibitions on such speech in the law? I couldn’t find a thing.

    So when “The most baffling thing about the people?mostly liberals?who push for laws against ‘hate speech’ […]” is written, I can’t help but ask… who the fuck are you talking about? Be specific. This is a very serious allegation and it should be backed up.

    And no, a university or college choosing what to publish or not doesn’t even come close. The school also has Freedom of Association and Freedom of Speech, and them exercising that doesn’t mean that idiot students can’t say/do whatever they want, just that they have to do it without the help of the school.

  7. Hate speech laws are controversial. We must value the right of free speech. Free speech rights are indivisible.

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  8. “A 2014 YouGov poll found that nearly equal numbers of Americans support and oppose [hate speech] laws…Fully 51 percent of Democrat respondents voiced their support.”
    “Before liberals rush to endorse laws…”

    Seriously? Before you rush to blame Liberals, maybe you should re-read what you just wrote. Have you heard of confirmation bias? Are Liberals the ones who complain that the Constitution protects burning or stomping on the American flag? Are Liberals trying to claim peaceful protesters are inciting a War On Cops, or supporting the idea of banning Muslim refugees and putting radicals in internment camps? The Right has more than its share of enemies of free speech.

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