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Subjecting Hate Speech to Civil Penalties

Most countries that ban or restrict hate speech deal with it through criminal law. But why not simply treat hate speech as a form of defamation under the civil law?

Written by johnleemk on 7:10:10 am Mar 31, 2007.

The criminalisation of hate speech is something that's very controversial. Many countries, such as Germany, make it illegal to, for example, spread the anti-Jew ideology of the Nazis. But this is often criticised for running counter to freedom of speech.

I am a firm believer in the right of people to speak their minds. I certainly don't agree with restricting freedom of speech, except when it comes to things like defamation. But at the same time, something seems wrong if you are forbidden from defaming an individual, but it's perfectly fine to defame that same individual if you refer to his race or religion.

I don't know how practical this is, but for quite some time I've pondered the possibility of simply making hate speech subject to the civil laws on defamation.

At present, most hate speech laws make those who defame a class of people on grounds of race, religion, etc. subject to criminal penalties. But it shouldn't be a crime to exercise your rights under the law, should it?

Instead, if you irresponsibly exercise those rights, the right remedy should be to allow those affected to sue you. That's why, for example, false advertising isn't a crime — it just opens the advertiser to a lawsuit from misled consumers.

Let's say someone says "All Chinese cheat on their wives". A married Chinese who has been faithful to his wife under my proposal would thus be able to sue the defamer under the normal laws of defamation. In other words, the man would be treated in exactly the same way as if he had stated "John Wong cheats on his wife".

This idea is of course open to a number of loopholes. Theoretically, in my example, all married Chinese men could sue the idiot who accused them of adultery, and all but bankrupt him if their claims succeeded.

The solution then might be to create a formula to reduce the amount that could be awarded in damages. This would have to be arbitrary, but in law, a lot of things are arbitrary. (After all, what makes me so different on the day of my 21st birthday that I'm considered old enough to vote?)

The downside is that if you reduce the amount of damages that could be claimed, this would discourage people from pursuing a suit. But that's a bit of the point — to only encourage those who truly feel slighted by racism to sue. Those who just want free money should be contributing to society in a proper manner, rather than litigating.

I envision that the result would be organisations such as the American NAACP (National Association for the Advancement of Colored People) suing for defamation, rather than particular individuals. Any damages they claim would thus be used to further the community that was insulted.

I'm sure that my scheme has its loopholes, and I'd be more than glad to be informed about why it's unfeasible or unworkable. But I do hope that we can come up with a more satisfactory solution to dealing with hate speech through the legal system than simply jailing people for exercising freedom of speech.