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How Hate Speech Laws Work In Practice

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

Robert Alai Onyango/FlickrRobert Alai Onyango/FlickrOne of the most baffling things about the newfangled "liberal" push for laws against so-called hate speech is their inability to imagine these bans backfiring. In their zeal to punish those who spread sexist, racist, transphobic, or otherwise out-of-fashion speech, they seem to forget that history has a bad track record of using censorship to suppress religious, social, sexual, and political minorities. And that's exactly what's been happening in Kenya, according to Nairobi-based newspaper The Star

"There is growing evidence that the government is using prosecution for hate speech as a tool to silence its opposition critics," writes John Onyando. "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." 

The agency tasked with prosecuting hate speech in Kenya is called the National Cohesion and Integration Commission (NCIC); it was formed in 2008 to address ethnic conflicts in the nation. Onyando asserts that NCIC has ignored the bulk of complaints it has received and acts "more like an arm of the ruling coalition" than an independent agency, honing in only on those who speak out against the Jubilee Alliance, a coalition established in 2013 to support the candidacy of current President Uhuru Kenyatta and Deputy President William Ruto. 

NCIC has thus far prosecuted Sen. Johnstone Muthama, a movement leader with the Coalition for Reform and Democracy, which contested the 2013 election results and stands in opposition to the Jubilee Alliance; blogger and student activist Allan Wadi Okengo, who criticized President Kenyatta on Twitter; student leader Seth Odongo; and blogger Robert Alai, who called Kenyatta an "adolescent president." Okengo, Alai, and Odongo were all setenced 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 by NCIC. The commission's chairman invited Kuria to participate in a reconciliation program in lieu of trial, however, something the other men were not offered. Only after Kuria continued to post inflammatory material online during the reconciliation proceedings did the NCIC rescind its reconciliation offer—though court proceedings for him have not yet started. And no action was taken when, on national television, Kuria subsequently told a group of young people whom he had given knives to 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," concludes Onyando. 

Folks who think this sort of selective use of hate-speech laws can only happen in countries with notoriously corrupt or unstable governments may want to reconsider. Because "hate speech" is not narrowly defined, it's up to those in power to decide what qualifies as hate and what doesn't, and often that depends very much on both whom the speaker is and the sympathies of those in power. France has been accused of treating anti-Semitic sentiment with kid gloves while ignoring anti-Muslim expression. In the U.K., a British teenager was arrested after critizing British military actions in Afghanistan

The First Amendment theoretically preempts the passage and enforcement of hate-speech laws in the United States. But that hasn't stopped a lot of Americans from lending them their favor—a YouGov poll earlier this year found that nearly equal amounts 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." And fully 51 percent of Democrats voiced their support.

Meanwhile, colleges and universities (even the public ones that are supposedly beholden to free speech on campus) have been using the spectre of hate speech to justify banning controversial speakers from campus, instituting prior review of student newspapers, and other forms of censorhip and intolerane. At the University of California, Berkeley—erstwhile home of the student Free Speech Movement—students now repeatedly pushing for more administration censorship of 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." The student paper reported that "Safety and Security officers will be performing additional rounds in front of the Native American House and will be offering temporary housing reassignment for Native students living in the house. Dick’s House counselors have also been made available." 

Much of this student activism is aimed at things deemed not sufficiently progessive, but some of "the most potent (of) such campaigns are often devoted to outlawing or otherwise punishing criticisms of Israel," as Glenn Greenwald recently reported at The Intercept. And when it comes to criticism of Israel (or GOP candidates), suddenly conservatives are every bit as fervent about punishing speech. 

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 spraypainting a building) or could be construed to involve illegal activity (like making hyperbolic "threats" online).

In San Francisco, for instance, leaders recently condemned graffiti saying "No More Chinese" as hate speech. The suspected spray painter was charged with 13 crimes, including felony vandalism with a felony hate crime enhancement. "We're exposing a man to somewhere around six years of jail time for spray painting," said public defender Yali Corea-Levy. And while bail for felony vandalism is normally set around $25,000, the suspect's bail awas set at $155,000. Similar outrage has not been summoned in San Fran for street art advocating the killing of hipsters or urging "techie scum" to die.

A Brooklyn teen was arrested in January for a Facebook post featuring emojis of a gun pointed at a cop. One can't imagine prosecutors showing the same zeal if it wasn't an authority emoji being "threatened" here. And while the Internet is a hotbed of derogatory comments, unserious threats, and all manner of vitriol each and every day, prosecutors tend to reserve monitoring and investigation for those whose views are unpopular—such as sympathizing with ISIS or denying the Holocaust—and those who criticize judges, police, and others in positions of power. 

Photo Credit: Robert Alai Onyando/Facebook

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  • Rich||

    The First Amendment theoretically preempts the passage and enforcement of hate-speech laws in the United States.

    What if the First Amendment were *itself* hate speech?

    /Judge

  • Elizabeth Nolan Brown||

    You jest, but...

  • UnCivilServant||

    "Your amendment to the constitution is unconstitutional"

    /unironic new Judge.

  • Quixote||

    Come now, we are perfectly capable of getting around the "Constitution" and the "First Amendment" when we need to, and most of us are perfectly aware that certain forms of speech are simply not worth protecting. See, for example, the documentation of America's leading criminal "satire" case at:

    https://raphaelgolbtrial.wordpress.com/

  • ||

    Tulpa was around under some stupid new handle in the Irwin Schiff thread.

  • straffinrun||

    Usually I ignore the idiot, but that shit was beyond stupid.

  • In League with the Dark Ones||

  • Rich||

    In San Francisco, for instance, leaders recently condemned graffiti saying "No More Chinese" as hate speech. The suspected spray painter was charged with 13 crimes, including felony vandalism with a felony hate crime enhancement.

    Emphasis added. I suppose if he'd used a "Chinese-like" font, yellow paint, and slanted his writing there would have been *multiple* felony hate crime enhancements. 8-(

  • ||

    I suppose if he'd used a "Chinese-like" font, yellow paint, and slanted sranted his writing there would have been *multiple* *murtipre* felony ferony hate crime enhancements.

    How many felonies for me?

  • UnCivilServant||

    one - butchery of a language.

  • ||

    WOOSH

  • Almanian's Rusty Woodchipper||

    LACIST!

  • DJAmes27||

    ROR

  • ||

    Fuck, could anything be MORE mild than "No More Chinese"?!?!

    Well, as I think was pointed out before, he didn't say ",Thanks!"

  • Al Sharpton||

    He could have said it was a pro-birth control message for one of the largest populations on earth.

  • The Grinch||

    Hate crime legislation shouldn't exist at all but, if it must, should be limited to violent acts or conspiracy to commit specific violent acts. Would saying "no more Chinese" be prosecutable absent the vandalism charge?

  • straffinrun||

    Yali Corea-Levy, Schenone's public defender, describes the situation with a touch of disbelief. "We're exposing a man to somewhere around six years of jail time," he says, "for spray painting."

    The prosecutor said the same thing, but with a touch of satisfaction.

  • Swiss Servator||

    "At UCLA Berkeley, erstwhile home of the student Free Speech Movement"

    That must have been quite the merger - the LA and Berkeley campuses?

  • UnCivilServant||

    They used eminent domain to condemn half the state and expand the campus.

  • Elizabeth Nolan Brown||

    Corrected! thanks

  • straffinrun||

    In case you were ever on the fence about loving Ronda Rousey

  • Almanian's Rusty Woodchipper||

    What a woman....

    *swoon*

  • SugarFree||

    One of the most baffling things about the newfangled "liberal" push for laws against so-called hate speech is their inability to imagine these bans backfiring. In their zeal to punish those who spread sexist, racist, transphobic, or otherwise out-of-fashion speech, they seem to forget that history has a bad track record of using censorship to suppress religious, social, sexual, and political minorities.

    It has to do with the axiomatic flaw at the center of Progressivism. Progress. They believe we are on a one-way path to their ideal world, and no backsies.

    They believe in entelechy, the idea that the perfect lives within the seed of the present; that their world is inevitable, if only they could get the rest of us out of the way.

  • Fist of Etiquette||

    ... is their inability to imagine these bans backfiring.

    Central planners aren't known to take individualistic tendencies and general human nature into account.

  • sarcasmic||

    How could the plans backfire? They're not intended to backfire. Oh, I know! Obstructionist Republicans! That's it! Blame the Republicans!

  • Mike A.||

    Wreckers and kulaks!

  • Azathoth!!||

    So...progressives shouldn't push for them because they might get used against progressives?

    That's what's wrong with hate speech laws?

  • SatanicBunniesOfDeath||

    I don't think she's saying that. She's saying that if you're goals are to end bigots from saying assholey things, hate-speech laws are not the way to do it as they don't actually have that effect and instead often do quite the opposite by hurting the same minorities you claim to be defending. Of course, hate speech laws are evil infringements upon free expression and should be opposed in principle (which if I'm going to critique the article, I don't think she did enough to make that clear), but I also don't think there is a conflict between principle and practice, so I don't think if you appeal to one, you automatically discount the other.

  • In League with the Dark Ones||

    Nah, I think she saying that hate speech laws work out in practice to prosecute the opposition for slightest misconstrued statement while ignoring pro-government calls for downright genocide of anyone not toeing the government line and that's the revealed purpose of hate laws — not to protect minorities but to punish critics and protect supporters.

  • Marshal||

    often that depends very much on both whom the speaker is and the sympathies of those in power. France has been accused of treating anti-Semitic sentiment with kid gloves while ignoring anti-Muslim expression.

    It seems you're trying to set up a contrast but ended up in agreement. Maybe an editing change wasn't followed all the way through.

  • In League with the Dark Ones||

    We're the second line of editors. :-)

  • Think It Through||

    Yeah I read that passage a few times myself, thinking, "is it just me"?

  • In League with the Dark Ones||

    "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."

    That's the whole point…

  • Sevo||

    "There is growing evidence that the government is using prosecution for hate speech as a tool to silence its opposition critics," writes John Onyando. "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."

    And taxpayer-funded political campaigns would never favor the incumbent!
    Oh, and the check's in the mail...

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  • IceTrey||

    Hey, because of a recent change in it's Constitution Obama can regain his Kenyan citizenship, run for President and fix everything!

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