Jail people for their opinions, says columnist

In a brief, but instantly controversial post, U.S. News & World Report blogger Bonnie Erbe made a surprising demand: people should be arrested and imprisoned not for what they do, but for what they say. It's a potentially popular position to take after last week's shooting at the Holocaust Museum. But it's difficult to see how censorship would head off violent crimes -- and not hard to imagine that violations of free speech rights might make such attacks more common.

On June 11, Bonnie Erbe, responding to the fatal shooting at the museum, wrote, "Isn't it time we started rounding up promoters of hate before they kill?"

"Hate speech" laws aren't exactly a novel idea. More countries than not criminalize the publication or dissemination of views outside a permissible range. In general, these laws prohibit the vilification of people based on gender, race, religion, ethnicity and other points of group identity that are often targets of bigotry. In some of these countries, the origin of the laws is clear -- it's no shock that Germany would criminalize speech that evokes memories of Hitler's regime and the Nazi's genocidal policies.

But "hate speech" tends to be a malleable idea. One person's venom is another person's strong dose of reality. And legal protections have a way of expanding to encompass new groups with access to politicians' ears. Suddenly, it's not just explicit antisemitism that's off limits, but maybe also criticism of Israel. And open attacks of gays and lesbians can be joined as a forbidden topic by religiously based opposition to homosexuality.

We can see where the process leads by looking to the north. In Canada, provocative pundits Ezra Levant and Mark Steyn were hauled before powerful human rights tribunals to answer for their publication of (in Levant's case) tendentious cartoons targeting Mohammed and (in Steyn's case), an excerpt from a best-selling, though politically incorrect, book about Islam and Europe. Both Levant and Steyn ultimately won their cases, but only after public and expensive battles. The laws that ensnared them remain in force. (Note that, in a similar case of mission creep, Canada's anti-pornography laws, originally pushed as a means of protecting women, came to be used against gay and lesbian erotica.)

In the United States, free speech protections have generally been more complete than elsewhere, perhaps because government has always been seen -- rightfully -- as the overriding threat to individual liberty, rather than as some kind of society-wide referee. The American position is perhaps best captured by Justice Robert Jackson's words in the case of West Virginia Board of Education v. Barnette:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Government officials haven't been allowed to define "acceptable" ideas in the U.S.

Not everybody is onboard with this legal tradition. Steven J. Heyman of the Illinois Institute of Technology - Chicago-Kent College of Law argues that "free speech is rooted in respect for the autonomy and dignity of human beings. But the same values that justify freedom of speech also give rise to other fundamental rights which are entitled to protection under the law. Speech that infringes these rights may be regulated by narrowly drawn laws, except in situations where the value of the speech is sufficient to justify the injuries it causes."

But this puts government officials in the enormously powerful position of assessing expressed opinions and giving thumbs-up to those that show "respect for the autonomy and dignity of human beings" while dinging those that "infringe these rights." Even a perfectly objective arbitrator would be hard-pressed to fill that role; the partisan and opportunistic creatures that fill public office in the real world would certainly use that power as a weapon against their enemies.

There's another practical reason for opposing laws that criminalize "hate speech": they don't eliminate bigotry, they just cause it to be expressed outside legal channels. In 1994, when speech codes on college campuses were all the rage, one professor defended such rules during a panel discussion at the University of Michigan by saying, "free speech allows exchange; efforts to prohibit hate speech help free speech."

Famed free speech advocate Nat Hentoff, who remains an opponent of such codes, responded, "That's like burning down a Vietnamese village to save it. If we say there are words you can't use, it drives bigotry underground."

You don't have to look far for an example. Antisemitism may be illegal to voice in much of Europe, but synagogues still burn.

Laws against hate speech can't eliminate hate; they can only ensure that the law becomes a bludgeon for people to use against those who hold opposing ideas.

email J.D.: civilliberties (at) tuccille.com