One thing I noticed recently is the increasing sentiment among some American Jews in favor of “hate speech” restrictions, especially given the recent incidents of anti-Semitism at some universities. I just ran into that a couple of days ago on a Jewish academics’ discussion list on which I’m a passive reader. The Australian decision that found harsh criticism of Islam illegal should, I think, be a reminder that hate speech bans can bite anyone.
Many people think such laws will ban criticism (which they think is hateful, and much of which may indeed be hateful) of their group. But they quickly discover that the laws easily spread, and soon spread to criticisms that you yourself may want to make — though of course you’ll make such criticisms much more fairly and temperately, and naturally you’re completely sure that a hostile judiciary will recognize this and find your speech to be different, right?
Justice Douglas put it well when dissenting from Beauharnais v. Illinois, a 1952 case that upheld a law that banned libels of races and religions (and that is fortunately widely believed to have been implicitly overruled):
Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a negro will be hailed before a court for denouncing lynch law in heated terms. Farm laborers in the west who compete with field hands drifting up from Mexico; whites who feel the pressure of orientals; a minority which finds employment going to members of the dominant religious group — all of these are caught in the mesh of today’s decision.
Today you may want Aryan racists or Muslim radicals to be convicted for condemning Jews. Tomorrow a Christian will be haled before a court for denouncing Islam in heated terms. The next day someone with perfectly fair and sensible criticisms of Islam will be convicted because his views seem too radical or not sufficiently balanced for the judicial elites of the time.
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