Earlier this week, I finished my fifth class for my master's degree. While I received an A in the class, my final assignment was left out. Apparently, my professor got confused on when final grades were due and didn't have time to grade the final (which was originally worth 20% of the grade), so she dropped it from her scoring rubric.
Cool.
Well, since I took the time to write a 2200+ word research paper and now it has no audience, I've decided to share it here. Don't feel obligated to read it, but if you, I'd love to know what you think.
Hate Speech vs. Censorship: The Power of Language on Social Media and the Dangers of Both Hate Speech and Censorship
Free speech is often held as the most vital liberty protected by the Bill of Rights. Yet, is it possible to maintain the freedom of speech while still limiting it? Specifically, how can free speech be protected while still preventing hate speech, especially on social media? The crux of this dilemma is that taking action to curb hate speech is a form of censorship, which inherently hinders free speech. However, with the rise of social media platforms being used as a new outlet for individuals and groups to use hateful language—and new hate groups forming and made possible via social media platforms—there is growing concern about the dangers of allowing hate speech to exist unrestrained. Ultimately, the question becomes: is controlling hate speech on social media worth the price of censorship? This paper will explore this issue by defining hate speech, providing a brief history of hate speech in the US, establishing the existence of hate speech online and on social media, defining free speech as it exists in the US, supplying evidence of the power of hate speech, and establishing the view of censorship by the US Supreme Court. The goal of this paper is to weigh the dangers of hate speech against the dangers of censorship, offer an opinion about which is more perilous, and provide potential options of how to best address these concerns.
Identifying the Issue
There is no official, legal term for what constitutes hate speech in the US; however, according to the UN, "the term hate speech is understood as any kind of communication in speech, writing or behaviour [sic], that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour [sic], descent, gender or other identity factor." To put it another way, hate speech is biased and insidious language used to attack a person or groups of person based on one or more thing that make up that person’s identity. In this way, hate speech is different from disagreeing with a person's opinion, viewpoint, or ideology. Hate speech is used not to attack philosophies, but people themselves.
History of hate speech in the US
No history of hate speech in the US would be complete nor honest without first discussing the nation’s history of race-based slavery. The American colonies and later the fledgling US were established with race-based slavery. While slavery and indentured servitude had been used around the world for centuries, the version of slavery in America was different in that it was lifelong and based on parentage. Even in the early colonies, children born to slaves were free. With the modification to make only one racial group enslaved, many whites in the South, whether slaveowners or not, viewed black persons merely as property and not as people. Language evolved to convey this derogatory view "and no word conveyed the depth of this internalized oppression more than [the N word]." While hateful, derogatory labels have existed well before the New World was discovered by Europeans and have been used to describe other groups beyond those of African heritage, the fact is that US slavery being race-based made a huge impact on how a specific racial group was seen and treated.
After slavery ended, hate groups, the Ku Klux Klan (KKK) in particular, were established not only to speak against (and harass and physically attack) the freedoms newly freed blacks enjoyed, but also against black persons themselves. Additionally, the KKK was vocally and physically violent against Catholic and Jewish persons, as well as other groups. The KKK is simply one example of a hate group that arose to attack—verbal, physically, or both—individuals based on one or more "identity factor."
This paper is not suggesting that only black persons have been persecuted based on identity factors in the US. Sadly, there are many groups that have had hate speech hurled and acts of violence committed against them—Jews, Mormons, Latinx, Japanese Americans, Native Americans, Irish, LGBT, and so on—more than can be mentioned here. The example of black persecution laid out above is meant merely to be a single instance of a group well-known to encounter hate speech and other hateful acts.
Hate speech online and on social media
In the second chapter of her book Hate Crimes in Cyberspace, Danielle Keats Citron explores what it is about the Internet that seems to promote hate speech. "Some of the Internet's key features—anonymity, mobilization of groups, and group polarization—make it more likely that people will act destructively." Citron offered two examples of hate speech directed towards Sports Illustrated writer Jeff Pearlman. In both cases, Pearlman tracked down his attackers and confronted them about their vitriolic comments. Each individual was shocked by the confrontation and admitted their embarrassment, suggesting that "the internet got the best of [them]."
Since the introduction of social media platforms, groups have been able to form based on shared interests or identity factors. While this has been wonderful for niche and marginalized groups, it has also proven to be a fertile breeding ground for hate groups. Prior to his attack of a Pittsburgh synagogue and killing eleven, accused attacker Robert Bowers used the defunct social media platform Gab to share his anti-Semitic views. Prior to Gab’s infrastructure collapsing, the platform had been a favorite meeting place of white supremacists. Had Gab not enabled these hate groups to gather, could the Pittsburgh shooting have been avoided?
Definition of free speech
The first amendment of the US Constitution states that "Congress shall make no law… abridging the freedom of speech, or of the press…". This amendment serves as the basis for free speech laws throughout the country, though it should be noted that private (or even publicly traded) companies are not prevented from enacting their own limits of speech. Also, the First Amendment does not provide any protection towards citizens who exercise their freedom of speech and suffer consequences from doing so, e.g., getting fired for making insensitive remarks. For the past seven decades, when the US Supreme Court is asked to rule on a case where the freedom of speech is a factor, the judicial body has shown that it is very likely to come down in favor of the First Amendment. This is significant as it illustrates the high level of importance assigned to free speech by the US federal government.
Three components that make this an ethical problem
Polarization
One reason hate speech is so alarming is because it is such a powerful tool. Hate groups are able to provoke violent actions in their members—nearly all recent mass shootings have been motivated by hatred. This type of radicalization makes hate groups dangerous, and not just towards the objects of their hate. "'It wasn't any one group—I hated everyone,' [former white supremacist Frank] Meeink remembers."
Dehumanization of victims
Referring to the men’s rights movement Reddit group r/Redpill, writer J. F. Sargent breaks down how they view the object of their hatred: women. "Women are commodities to be acquired and subjugated. They are conquests—things that determine your worth as a human." Viewing objects of hate as subhuman is common for hate groups.
Censorship
Despite his many, many flaws, President Trump signed an executive order to prevent online censorship, which should be commended. However, less than two months later, Trump issued another executive order effectively banning the social media platform TikTok, a move many see as a form of censorship. As stated previously, the US Supreme Court holds free speech in high regard. The US was founded by a group who felt their voices were not being heard ("no taxation without representation"), so silencing any individual's or group's voice should be taken very seriously.
Management of the Issue
Clearly there is a problem with hate speech on social media, but how can it be addressed? Following are some recommendations.
Let platforms govern themselves
Platforms have already started policing hate speech, though some better than others. Famously, Facebook announced last year that it had created a managing board to judge whether flagged content could remain up or would need to be taken down. The system is not perfect, but the company is taking steps to control hate speech, as well as misinformation. Other platforms have also put in place their own guidelines, with Reddit's as a standout for how much freedom is allowed. However, this approach leaves the decision of what to allow and how to act in the hands of the platforms. What if the restrictions are too tight, not allowing users to share information freely? Conversely, what if the restrictions are too loose, permitting violent breeding grounds as was seen with Gab?
Follow Europe's lead
In 2008, the European Union passed legislation which stated "that hate speech would be sanctioned and punitive measures could be taken against individuals or groups engaged in hate speech." Laws like this create incentive to not engage in hateful speech. However, it also makes speaking one’s mind a potentially criminal offense. Add to that the fact that a similar law in the US would likely require a constitutional amendment, what is the likelihood of a law of this nature being passed in the increasingly polarized and tribalist congress?
Expand Defamation Laws
If we cannot trust social media platforms to police themselves and we cannot expect a criminal law to be created, perhaps the best route is to apply defamation law. Defamation is "a false statement presented as a fact that causes injury or damage to the character of the person it is about." By allowing defamation to encompass hate speech—including hate speech online and on social media—those who are the subject of hate speech would have a legal path through which to seek damages from their attacker, while those who wish to continue to engage in hate speech are free to do so without fear of being prosecuted by the state. The burden of proof would rest on the plaintiff, which would require a standard definition of hate speech. Additionally, social media platforms would no longer be held responsible for what their users say—similar to how email services are not sued for allowing an unsavory letter to be delivered.
Foreseeing Oversights
Even though the proposed expansion of defamation law seems like the best fit considering US laws, such a law’s introduction will likely bring with it new challenges.
Different Laws in Each State
Since defamation laws differ from state to state, each state would need to pass their own version. That does mean that some states will likely have stricter laws than others, which can make it challenging when both parties live in different states.
Legal loopholes
When drafting the new laws, legislators—whether through overzealousness, malicious negligence, or merely unseen omissions—may use wording that is either too ambiguous or too narrow-sighted. If this happens, it may allow for some crafty attorney in the future to have the suit dismissed, despite their client actually being responsible.
Frivolous Suits
The US has been accused of being a "sue happy" nation, so what is stopping an annoyed and/or money hungry individual from accusing an innocent person of defamation and bringing suit against them?
Responses and Application
Different Laws in Each State: Use Divorce Law as the Guide
One solution could be for the expanded defamation laws to work similar to divorce laws, i.e., the plaintiff decides in which state they want to file their suit, the state in which they live or the state in which the defendant lives. Another issue is when different states adopt different definitions of hate speech, but that can be addressed by using the definition in the state wherein the plaintiff files suit.
Legal Loopholes: Close Them over Time
Legal loopholes are almost certainly going to arise and the way to address them will be the same way legal loopholes are addressed now: to close the loopholes as they are discovered. Legislators will need to be careful with their wording as they draft the new laws and they, and concerned citizens, will need to watch closely for when unclear wording is abused. When this happens, it is time campaign for changes to the law.
Frivolous Suits: Innocent until Proven Guilty
Since the burden of proof is on the plaintiff, the defendant is innocent until proven otherwise. There are people who use current laws to bring forth frivolous defamation suits, but these are mostly thrown out. The difference with the current law and this proposed law is that, with regard to hate speech, no proof of suffering will be required, simply proof that the defendant engaged in hate speech directed at the plaintiff or a group with which the plaintiff identifies.
As this paper has explicitly detailed, hate speech is a powerful weapon that in some cases has resulted in the loss of human lives. With social media, that hatred is shared much faster and farther than ever before. Clearly something must be done, while still protecting free speech. By expanding defamation law, the ability to combat hate speech is given directly to those who are its target, giving power to those who were before merely victims.
