Should Offensive Conduct such as Hate Speech be Criminalised?

Prevention is an important facet of criminalization, but one that must be subject to principled constraint, lest it result in an overextension of criminal law. There also exists an idea of criminalization as last resort, ultima ratio regis. This is not a constitutional principle and the ambit of this principle should be fairly limited in order to avoid losing the purposiveness of criminal law. Criminalisation, which is connected to the legitimisation of the state, is an act by which the state interferes with the autonomy of the individual by proscribing certain conduct. The manipulation of people’s conduct calls for justification, especially when it is accompanied by punitive repercussions. An affirmation that this will not contravene the Rechstaat requirements and will encompass values compatible with the liberal and political system is needed. Common law offences are of two types: Malum in se, an act that is inherently immoral such as rape; and Malum Prohibitum, an act which is prohibited by statute, though not necessarily immoral.

The latter is designed partly to reinforce society’s notion of morality. Offences against decency are vexed, since what is offensive to one may not be offensive to another. If the Offence Principle is broadened to include trivialities and prejudices; it becomes too weak to serve as a political guideline, since almost every action can be said to cause some nuisance to others. A distinction between being offended, and offensive needs to be made. The idea of offensiveness contains an element of wrongdoing and treating another with a gross lack of respect or consideration. Additional mediating principles, like social tolerance and an immediacy requirement might be taken into consideration prior to criminalisation of offensive conduct. However, there exists a school of thought which argues that when considering criminalisation, it would be simpler to ask whether or not the conduct violates a legal right. To be wrongful, the conduct must be objectively offensive such that reasons excluding subjective offence can be given for criminalising it. There should ideally be no place for any form of the egg-shell-skull rule. Only a very narrow range of displays would be adequately bad enough to justify a criminal law response. However, only a weak case can be made against acts like exhibitionism which might cause others to get offended.

Following the now disproved broken window thesis, there exists an argument which asserts that the wrongfulness of offensive behaviour might arise because it fosters an environment where crime would flourish. However, it would be normatively unfair to attribute responsibility to the original offence under the light of a remote criminal harm carried out by a third party. There do exist circumstances, albeit rarely where the publication of an offending opinion does bring about physical harm to others, and seriously undermines their autonomy, to an extent where they cannot live as functioning citizens within society. Under such dire circumstances, the state should intervene, and the distributors of such opinions must be punished through the legal system for society’s interest. If the publication is hurtful to others, but does not violate their rights in the process, it should not be a matter for the state to intervene. It makes little sense to cluster everything designed to promote hatred into one category, especially when hatred is such a contested concept.

Restrictions on hate speech have become a means not of addressing specific issues about intimidation or incitement, but of enforcing general social regulation. This is why hate speech laws across the world are inconsistent, differing geographically. However, much of what we call hate speech consists of claims that may be contemptible, but are morally defensible. One of the ironies of the current Muslim campaign striving for the issuing of a law against religious defamation is that, if a law of this sort had existed in the seventh century, Islam itself would never have been born. A distinction between ‘content-based’ regulation and ‘effects-based’ regulation is necessary, thus permitting the prohibition only of speech that creates imminent danger via direct harm. The meaning of imminent danger is circumstantial, and direct harm should be interpreted via a clear and present danger test, akin to the U.S. Supreme court. The democratic process is not only valid for society at large, but is vital to the individual's thought process. The process of coming to a truly infallible opinion about anything is brought about through a process of dialectical reasoning.

In this process, an erroneous opinion, even one that some may deem as offensive is of vital importance, since an opportunity is created to investigate the issues at stake, thus arriving at a more unambiguous understanding of the truth; and to arbitrarily forbid erroneous opinions to exist would impede this undetaking. This presumption that hate speech always works is politically problematic because it does not allow for the possibility of a critical response. Free speech is a universal good and all human societies flourish with free speech. It is believed that there is a case for Germany banning Holocaust denial. However, especially in Germany what is needed is an unsheltered debate on this issue. However, even Mill who was the first to distinguish between speech as a matter of ethical conviction, and instigation asserted that opinions lose their absolute immunity when the circumstances in which they are expressed can constitute a positive instigation to some harmful act. Grounds for abridging expression exist only when the speech is intended to bring about physical harm or inflict psychological offence which is morally on par with physical harm, contingent upon the premise that the target group cannot avoid being exposed to it. If no consideration is paid to this, then freedom of speech might be abused in a manner which contradicts fundamental background rights to human dignity and equality of concern and respect, which underlie a free democratic society.

Ultimately, we ought not to tolerate every speech, for then we seemingly give more value to freedom of expression, and of tolerance, over other values which we deem to be of no less importance, such as human equality and dignity. Tolerance which conceives the right to freedom of expression as a carte blanche permitting any speech, under any circumstances, might prove inefficacious, assisting the flourishing of anti-tolerant opinions and hate movements. Denigrating expression should be regarded harmful only when it is likely to set back the tangible interests of a reasonable man. Feinberg wrote that Harm in the broad sense is the setback of an interest and thus ruled out a miscellany of disliked mental states like ephemeral disappointments and transient mental. Prison sentences should be used only to deter speech that harms others. Harm being factual, and not theoretical. A prison term harms the offender in a serious way, so it should be used only as a punitive response when it can be demonstrated that the defendant has inï‚icted a similar level of harm on the victim.

Proportionate punishment is ultimately about trying to make ‘prison harm’ have equivalence with ‘victim harm’. This requirement is a fundamental, and constitutional right. Unless the expression is potent enough to result in real harm to identifiable members of the target group, it would be disproportionate to use prison to deter it. Fair sentencing has to hinge on proportionality, not on gusts of public outrage. It is disproportionate to punish someone for publishing legitimate work that leads to riots. Courts are prevented from imposing a custodial sentence unless they are of the view that the offence is ‘so serious, that neither a fine, not a community sentence can be justified’. Debate surrounding an offence’s seriousness and its subsequent grading is a matter of utmost importance today since factors that were once left to a judge’s discretion are now articulated and given definite weight under modern sentencing guidelines. Although trivial cases would not be pursued to trial, the narrow and broad model of criminalisation cover a range of conduct, and will fundamentally alter the nature of any new offences. The task at hand, however is to discover why such virulent, and generally irrational, bigotry is still present from a very young age. Unless we find and combat that, these sentiments will continue to reproduce, even if their public expression is repressed - the self-justifying resentment of which will only entrench them yet more deeply.

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