The Official Blog Of Edward Cline

The Perils of “Hate” Speech and Crime Revisited

Defense
attorney and seasoned trial lawyer Perry Mason never lost a
case to a prosecutor who charged his clients with “hate speech” or
with a “hate crime.” Or at least no defendant of Mason’s was every indicted,
charged with, tried for, or found guilty of it. That is because the concepts of
“hate speech” and “hate crimes” would never have been
admitted by the presiding judge. Indeed, prosecutors would have found the
concepts alien, inadmissible, and incompatible with objective law, as well. At
least, that would have been the finding in lawyer Erle Stanley Gardner’s time,
and therefore in Perry Mason’s time.
Both
Mason and his usual opponent at the bar, District Attorney Hamilton Burger, while
they might have dwelt on a defendant’s emotions – vengeance, jealousy, avarice,
anger, bitterness – in their argumentation, they knew that it was not a
defendant’s emotions that were on trial, but his actions. It is an action that
is a demonstrable thing, not a person’s reason for taking an action, except
through a person’s confession. And even then, it is not a person’s reason or
motive for committing (or not committing) a crime that is the focus of Mason
and Burger, but the action itself.
As
I wrote in one of my columns, The
Peril of “Hate Crimes
,”
“A totalitarian anti-concept
of ‘justice’ has been gnawing away at objective law without correction or
opposition, and making rapid progress in a judicial system that has steadily
abandoned reason and the protection of individual rights: hate crime.”
“Hate”
crimes initially were violations of individual rights motivated by the perpetrators’
hatred of a victim’s race, gender, religion, or political affiliation. The
nature of the motive was acknowledged, but was not the subject of a trial.
Hatred is an emotion that can be traced to two fundamental evaluations: fear,
and malice. One can justifiably hate what one fears, if what one fears
jeopardizes a rational value or one’s life. Or, one can hate what one fears
because it threatens an irrational value, such as blind faith or one’s
purported racial or cultural superiority. Malice is simply a raw, unreasoning
hatred of a good for being the good.
But
the motivating, emotional elements of a demonstrable or provable violation of an
individual’s right (murder, rape, physical assault) are now frequently factored
into the severity of a defendant’s crime and in consequent punishment after his
conviction and trial.
In
short, the why of a crime is
increasingly treated as though it were a weapon, such as a gun, a knife, or a
club, or as a kind of co-conspirator or accomplice to a crime. In standard
criminal cases, however, it has never been the instrument of crime that was on
trial, but the defendant and his actions.
Until recently, no person or criminal, to my knowledge, has been indicted,
convicted, and tried because of his irrationality, only for his irrational
actions and his employment of force or fraud to pursue his ends.
I
was moved to revisit the subjects of “hate” speech and
“hate” crime by an article on Spiked, by Joanna Williams, “Teaching
Students to Fear Free Speech
,” in which she observes, when commenting
on the restrictive “free speech” codes at Britain’s Exeter University
and other British universities:
Exeter University, like many
others, uses the Equality Act to reinterpret freedom of speech as meaning the
freedom not to be offended. As Greg Lukianoff puts it in Unlearning Liberty:
Campus Censorship and the End of American Debate
: ‘By following a
“sensitivity for everyone” as opposed to a “free speech for everyone” model,
you create the risk that nobody will be allowed to say anything interesting at
all.’
Not
even that knight of “social and economic justice,” Franklin D.
Roosevelt, included, among his vaunted political soufflé of the Four Freedoms (freedom
of speech, freedom of worship, freedom from want, freedom from fear), the
notion in that check-off list that anyone was entitled to freedom from offense,
disparagement, insult, insensitive remarks, distress, verbal abuse, disrespect,
and blasphemy, aside from freedom from legitimate scholarly criticism of his
economic programs or from satirical attention to the evident hypocrisy of
members of his administration. FDR was such an amoral pragmatist I’m sure that were
a Muslim or modern day diversity-obsessed leftie close at hand, he could have
persuaded FDR to include one or all of Islam’s favorite victimhood cards,
together with those of the lesbian/gay/transgender/cross-dressing brigade, as
well. And that would have been quite a feat of political agenda “diversity.”
There
are students who have been brow-beaten into not risking voicing criticism of or
venturing an opinion on just about anything lest they be upbraided or hauled
into a kangaroo court, and there are British sandwich shop owners who make
jokes on Facebook about deceased tyros and tin pot dictators. Walter Olson
reported on the Overlawyered
site on December 14th:
Authorities in Rugeley,
Staffordshire, England, detained sandwich shop owner Neil Phillips for eight
hours, searched his computer, fingerprinted him and swabbed him for DNA after a
local elected official complained that Phillips had engaged in online jokes and
comments on Facebook, including jokes about Nelson Mandela. [Birmingham
Mail
, The
Star
] Afterward, Phillips complained that the constabulary had
“over-reacted massively”: “There was no hatred. What happened to freedom of
speech?”
Charles Cooke explains
at NRO
:
Well, the Public Order Act of
1986 happened to freedom of speech – in particular, Section 5, which makes it a
crime in England for anyone ”with intent to cause a person harassment, alarm or
distress” to
(a)
[use] threatening, abusive or insulting words or behaviour, or disorderly
behaviour, or (b) [display] any writing, sign or other visible representation
which is threatening, abusive or insulting, thereby causing that or another
person harassment, alarm or distress
.
In other words, Section 5 allows
anybody to have anybody else investigated for speaking. And they have. The
arrests have run the gamut: from Muslims criticizing atheists to atheists
criticizing Muslims….
And
that’s what happens in Britain to someone who says something interesting.
Except to Muslims, Welfare Statists, and Leftists of every stripe, who
regularly use threatening, abusive, and insulting words and behavior, and
indulge in disorderly behavior, and religiously display writing, signs and
other visible representations that are threatening, abusive and insulting,
causing upholders of freedom and Western civilization harassment, alarm and
distress. Upholders of freedom and Western civilization need not bother filing
a complaint, as a politician did against the hapless Neil Phillips.
But,
what harm can words cause? First, let’s settle on a definition of word. In her groundbreaking work, Introduction to Objectivist Epistemology*,
novelist/philosopher Ayn Rand wrote:
A
definition is a statement that identifies the nature of the units subsumed
under a concept.

It
is often said that definitions state the meaning of words. This is true, but it
is not exact. A word is merely a visual-auditory symbol used to represent a
concept; a word has no meaning other than that of the concept it symbolizes,
and the meaning of a concept consists of its units. It is not words, but
concepts that man defines—by specifying their referents.

The
purpose of a definition is to distinguish a concept from all other concepts and
thus to keep its units differentiated from all other existents.

Since
the definition of a concept is formulated in terms of other concepts, it
enables man, not only to identify and retain a concept, but also to
establish the relationships, the hierarchy, the integration of all his
concepts and thus the integration of his knowledge. Definitions preserve, not
the chronological order in which a given man may have learned concepts, but the
logical order of their hierarchical interdependence.

With
certain significant exceptions, every concept can be defined and communicated
in terms of other concepts. The exceptions are concepts referring to
sensations, and metaphysical axioms. [p. 40]
Building
on that, “hate” speech is a concept that, socially and politically,
enables a person or the state to treat one’s motive as a punishable crime, or a thought (or emotion) as socially and legally impermissible, and
also punishable.  “Hate” speech
treats words and emotions as literal physical entities capable of inflicting
physical, but chiefly emotional or mental harm on another. “Hate”
speech regards words as palpable forces that can effect change or trigger
unwanted emotions, as though they were hammers tapping on a person’s kneecap
and causing the lower leg to jerk upward.
Because
words – which constitute speech – are merely audio-visual symbols of a thing
for which there is a concept, they have no existential, physical attributes or
character. Because they have no existential qualities, they cannot by
themselves harm or affect anyone or anything. Nor can images. This is why it is
humorous to watch someone coax or curse a recalcitrant engine that won’t start.
“Hate”
crimes, on the other hand, are directly linked to “hate” speech
because it is the motives or the contents of one’s mind in the context of a
provable crime that are targeted for disapprobation. The concept of a
“hate” crime refers to actions of a thought carried out in action,
and moves it from moral condemnation to a chargeable crime. George Orwell
anticipated the phenomenon when he devised the notion of thoughtcrime for his dystopian novel, Nineteen Eighty-Four.
In
a Perry Mason court, if a defendant is on trial for murder, it may be revealed
that he wanted the victim’s money or wife or prestige, or because the victim
was going to disclose his embezzlement or other kind of malfeasance (and may or
may not have intended to blackmail the defendant), and so took an immoral
action. But his wanting something is
not what he is on trial for. A Perry Mason court focused on actions taken in
pursuit of some gain, or committed in vengeance, and so on.
“Hate”
speech, coupled with “hate” crime, are the Gog and
Magog
of statism and corrupters of genuine justice. They are the twin
harbingers of totalitarianism. The U.S. is moving haltingly in that direction,
as witness the invocation of “hate” speech” in many judicial
decisions as reason and objective law are abandoned in favor of positive law.
Britain and Europe are galloping in that direction. 
Mark
Hendrickson noted in his Forbes Magazine article of May 30th, The Pandora’s Box of Progressivism: Positive
Law
:
The classical liberal view of
individual rights being primary and justice consisting of government and law
being for the purpose of impartially upholding those rights no longer prevails.
It has been supplanted by the notion—advanced by progressives, socialists, and
adherents of various other illiberal ideologies—that government should act in a
positive way to make life better for people….Once Americans started to accept
the notion that government should lend a helping hand, the potential expansion
of government’s scope and power became unlimited.
The
most recent and notorious example of “positive law” is ObamaCare, which
is intended to lend Americans a “helping hand” with their health care
insurance. Other examples are anti-smoking laws, anti-trans-fats laws, anti-discrimination
laws, and EPA regulations. Positive law or “progressive” law is practiced
by a government which sees itself as an “activist” for social
legislation and which enacts laws to advance the “common good.” It is
an enemy of natural law.
“Hate”
speech and “hate” crime are intrusive legal examples of positive law,
imposed to guarantee an individual’s or a group’s “freedom from” something
that might hurt feelings or a tenuous self-respect.
There
would be no room for a Perry Mason in a judicial system that universally
adopted “hate” law. He would retire from his practice, knowing that
the “positive” law of “hate” speech and “hate”
crime could only have a negative
impact on justice. He might even suspect that justice was not an end or a goal
of the proponents of “hate” law, but something rather more insidious:
censorship, and the shackling of the human mind.
*From
Chapter 5, “Definitions.” Ayn Rand, Introduction to Objectivist Epistemology. Harry Binswanger and
Leonard Peikoff, eds. (1966-1967). New York: Meridian/Penguin, 1990. 

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1 Comment

  1. Edward Cline

    Words have no physical properties. One could throw the whole "book" at anyone or anything, and not harm or affect the person or thing.

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