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Free Speech Vs. 'Hate Speech'

I recently attended a symposium, held at the University of Toronto and sponsored by a group of politically savvy libertarian and conservative students, on the topic of free speech and expression in the current repressive cultural and political milieu. The audience of almost every other conservative symposium I have attended has been composed chiefly of elderly white men, with a modest sprinkling of women and a sparse handful of younger people. On this occasion I was gladdened to note that the age gap had been bridged, dividing equally between older and younger, while the distaff representation was comparatively prominent.

The fact that the symposium was organized by two student groups worried about their political and economic future, Students for Liberty and Generation Screwed, explained the mixed composition of the conference attendees and signaled a more hopeful future for the nascent conservative movement growing on campus as well as in the non-academic world. This young, right-leaning cohort -- politically active, intellectually engaged, well-educated and civil -- are in marked contrast to their leftist counterparts consisting of a mélange of snowflakes and hooligans, who were soon to make their presence known at the event.

The issues discussed at the symposium largely involved the nature and definition of speech violence, or what is called “hate speech,” criminalized in several countries and jurisdictions. Both sides of the dispute, left and right, agree that limits to freedom of speech are necessary, but disagree as to where these limits should be placed. The left, whether radical or moderate, regards as felonies forms of speech that offend a privileged identity group, whether racial, ethnic, religious (i.e., Muslims), or gender-based (i.e., women, gays, trans-people), or criticizes the ideological positions such favored groups adopt. Additionally, a prime tactic of the left is what we may call pre-emptive suppression. Speaking engagements are often shut down before or during an address, making debate and discussion impossible. Censorship and repression thus become acceptable methods of dealing with such perceived “transgressions” as open colloquies, lectures and conferences.

The conservative right believes that speech should be mainly unfettered, except when it damages reputations through lies or urges acts of physical violence. Of course, speech itself can be an act, as philosopher J.L. Austin has shown in How to Do Things with Words: in his most famous example, when the minister states “I now pronounce you husband and wife,” an act has been performed since it changes the status of the participants.

We should note, however, that words critical of an individual or a group are not performative (or “illocutionary,” in Austin’s phrase). If I criticize Islam as a violent faith, I do not thereby make it violent or directly instigate violence against it. My words do not change the reality of Islam, whatever it may be. In the U.S., even words advocating violence (except in official or legally constituted circumstances, or in situations where there is a clear and present danger) are not considered performative. The 1969 Brandenburg vs. Ohio Supreme Court case ruled that “speech can be prohibited if it is "directed at inciting or producing imminent lawless action." (Italics mine). In the words of the Legal Encyclopedia discussing the case, “the First Amendment protects speech unless it encourages immediate violence or other unlawful action.” (Italics mine). In this instance, both the temporal element and unequivocal incitement are crucial. Mere advocacy is another question entirely and is not prohibited, although here the conservative argument tends to draw the line, even if the U.S. Supreme Court did not.