Limiting Free Speech (16): Fighting Words

Fighting words are written or spoken words expressed to incite violence. This is related to the topic of hate speech, but it isn’t quite the same thing.┬áHate speech isn’t necessarily intended to incite violence (just simple hate in some cases).

In Chaplinsky v. New Hampshire (in 1942), the U.S. Supreme Court decided that “fighting words”, words that tend to incite an immediate breach of the peace, are among the

well-defined and narrowly limited classes of speech [which] the prevention and punishment of have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Speech that merely causes anger, offense, insult or outrage does not amount to fighting words. Fighting words must present an actual threat of immediate violence or must “reasonably incite the average person to retaliate.”

It’s not true that certain words inevitably provoke violent reactions by individuals. Rather, one should take into account the context in which the words were uttered, not merely the content of the words themselves.

Given the rules for limiting free speech described in this post, the case of fighting words is rather simple. Inciting violence leads to violations of individual rights to security and bodily integrity, and in many cases these rights should take precedence over the right to free speech. It seems difficult to accept that hurting someone is a lesser evil than limiting someone’s right to speak and threaten.

Limiting Free Speech (3): Hate Speech

Hate speech (or antilocution, or fighting words) is speech that incites other people to hate a certain group in society defined by common characteristics (race, gender, religion etc.). It usually also incites to commit violence and discrimination based on hatred.

The most famous case is that of the Danish Muhammad cartoons. These cartoons led to worldwide protest and expressions of anger and hate, not only against the cartoonists in question, their newspaper or their country, but against liberals and democrats in general.

However, hate speech is by no means an exclusively Muslim matter. It can be found everywhere where there is hate: it can be racist, anti-gay, islamophobe, etc. It can also be framed in anti-terrorist language: many western countries have initiated legislation outlawing hate speech that is part of Muslim mobilization of terrorists (in militant mosques for example).

Given the importance of freedom of expression, it is not universally accepted that hate speech can be legally prohibited. There is of course article 20 of the International Covenant on Civil and Political Rights which outlaws hate speech:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

However, contrary to hate crimes, such as attack on gays or muslims or writers/movie makers/cartoonists critical of Islam etc., the basic rule should be that speech as such is not a crime, even speech expressing or inciting hatred, violence or discrimination. Speech is protected by the right to free speech.

However, this right, like many human rights, is not absolute and can be limited when it endangers other human rights (like the right to life and bodily integrity, the right not to suffer discrimination etc.). The general defense of hateful speech has therefore some exceptions. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. Hate is taught. The example of the Muhammad cartoons protests is again telling in this respect. Many protesters were encouraged by some Muslim leaders to commit acts of violence.

But much depends on the circumstances, the context and the manner of speech. Islamophobia in front of a crowded mosque is obviously not the same thing as islamophobia in an obscure publication. Examples of speech, in the wider sense of the word, such as hanging a noose in a tree in the front yard of the house of an African-American family, or spraying graffiti on someone’s car or house, are more of a problem than posting a picture of a Koran in the toilet on a blog or a website. The first examples are clearly intimidation and can force people to sell their houses and move somewhere else. This has human rights implications (freedom of residence and property rights), which the latter examples don’t have (it’s difficult to argue that a photo of the Koran in a toilet, although undoubtedly an expression of hatred, harms anyone’s freedom of religion).

When speech has implications for the rights of some people, it is legitimate to consider limiting this speech, according to the rules set out in the introductory post of this series.

An important distinction here: all this is about hate, not about speech that is merely offensive, insulting, ridiculing etc. That’s the topic of another post. The distinction, however, can be blurred. What is hateful and what is merely offensive is a matter of personal conviction, it differs between groups and it changes over time. Some groups may be more sensitive than others. If one decides to legislate the matter, this can complicate things.

Moreover, what to someone can be seen as hate – for example homophobia – may be a central tenet of someone else’s religion and therefore protected by the freedom of religion. However, the freedom of religion is not absolute either.

And finally, some examples of speech that were once considered to be hateful – such as “nigger” – have been reclaimed by the groups that were previously targeted, and are sometimes even used as a badge of pride.

Another distinction: it is perhaps possible to imagine hate speech that is not directly or indirectly inciting violence and/or discrimination. Obviously, this kind of hate speech is less dangerous. However, like derogatory speech or offensive speech it does create a problem. It perpetuates negative stereotypes, devalues collective identities, deepens social cleavages and conflicts, makes it more difficult for the community to accept new identities, and it makes debate more difficult. So it makes it more difficult to create and uphold a tolerant, diverse society in which there can be civilized debate and discussion leading to better knowledge.

However, is this reason enough for a legal prohibition on hate speech? I don’t think so. Is it reason enough to combat hate speech with other means? Sure. The remedy for harmful speech is not necessarily prohibition but counter-speech, and sometimes it is best to just ignore some kinds of speech. Engaging the hate mongers, let alone prosecuting them, gives them legitimacy, publicity, and under-dog or victim status.