New Jersey jury on Friday convicted a Rutgers freshman of “bias intimidation,” among several other charges. Dharum Ravi had set up a webcam in the dorm room he shared with Tyler Clementi, and then posted footage online of Clementi being intimate with another man. Three days later Clementi jumped to his death from the George Washington Bridge. Ravi faces up to ten years in prison or deportation to India.
This verdict promises to have malign effects beyond the problems of hate-speech laws already long recognized. Most important, it will make it easier for Muslim organizations to achieve in the United States what they have in Europe: criminalizing legitimate and fact-based criticism of Islam by disguising it as “hate speech,” thus enlisting our criminal justice system in the enforcement of shari’a-based blasphemy laws.
Ravi’s conviction has dangerously expanded the already over-broad and subjective statutes against “hate crimes,” which are for the most part based on words and attitudes. Such laws are an attempt to criminalize preferences disapproved of by some political ideologies, and they are based on dubious social psychology theories about how “hate speech” creates a “climate of fear” that legitimizes and hence increases physical violence or harassment against protected groups. The problem with such laws, however, is that in practice they are selective, protecting politically favored constituencies while excluding other groups such as Christians, Jews, straight white males, or conservatives. Worse yet, what constitutes “hate speech” is highly subjective and reductive, ignoring the specific contexts and intentions that contribute to any speech act. Finally, under the Constitution, we are free to dislike whomever we wish for whatever reason we wish, no matter how much such dislike disturbs others. And subject to strict “fighting words” constraints, under the First Amendment we have the right to express that dislike in speech, including speech others may find offensive.
In short, “hate crime” laws represent another dangerous government intrusion into social and political life at the expense of freedom, all in an attempt to create some utopian world in which nobody ever feels bad, and social relations are without strife and conflict. Yet this goal is impossible given human nature and the great variety of people and their beliefs, some of which they passionately hold and consider foundational to their identities and the meaning of their lives. In a free society that by law gives people the right to express these beliefs and preferences, there inevitably will be clashes, and these disagreements won’t always be conducted with the decorum of a Jane Austen novel. Thus freedom of speech necessarily entails accepting that occasionally one will be insulted or offended. But that’s the price we pay for that freedom, for the alternative is the creation of legal limitations that inhibit speech by using the coercive power of the state to threaten or silence disagreeable political views.
The more dangerous consequence of such legislation, the illegitimate expansion of the scope of hate crime offenses, is what has taken place in the Ravi case. What Ravi did could be considered mean or boorish, but given he was a freshman in college at the time, such behavior is to be expected of a callow youth. There was no evidence presented that Ravi personally was homophobic, no past record of harassing or intimidating homosexuals. In fact, there was not any “hate speech” at all, just a subjective interpretation of his actions as the fuzzy crime “bias intimidation.” As a result, this verdict has broadened the categories “hate” and “bias” to criminalize immaturity––as long as the victim is a member of a protected group. If the roles were reversed, and Clementi had posted videos of Ravi having sex with a woman, nobody would have cared how humiliated or shamed Ravi became, even if he committed suicide.
As a result of this expansion, this verdict contributes to that “chilling” effect on free speech that the ACLU selectively complains about. People who disagree about the legitimacy of same-sex marriage, for example, or resist the attempt to normalize homosexuality, now face the possibility that their opinions, if expressed in ways subjectively interpreted as “hurtful,” could be construed as “bias intimidation” or a “hate crime” or “bullying,” and hence subject to legal sanctions. After all, if normal freshman boorishness can be criminalized, anything can. Already the threat of such prosecution lurks behind every charge of “sexism” or “racism” or “homophobia.” We saw this tactic in the recent uproar over Rush Limbaugh’s comments about Sandra Fluke, which a Washington Post blogger called “hate speech” that “crossed into the realm of sexual harassment.” That is, as something that the power of the government can punish. Such threats can lead to self-censorship and an environment that is hostile to free speech.
But there’s an even more sinister development of “hate speech” sanctions that this verdict facilitates. That is the ongoing effort of Muslim organizations to smuggle Islamic “blasphemy” prohibitions into “hate speech” laws. The Organization of Islamic Cooperation has been trying for years to get the U.N. to codify Islamic shari’a blasphemy laws in secular international law. And President Obama is supportive of such efforts. In his infamous Cairo speech of 2009, he proclaimed his commitment to fighting “negative stereotypes about Islam.” In December 2011 Secretary of State Hilary Clinton invited the OIC to Washington to “exchange ideas” and “discuss implementation” of the President’s goal. A few months earlier, representatives of Islamic advocacy groups had met with the Department of Justice to press for ways to label criticism of Islam “religious bigotry and hate,” as the president of the Islamic Society of North America put it.
We already know where this attempt to criminalize criticism of Islam in the guise of “hate speech” will lead, for we have seen its consequences in Europe in the hate-speech charges leveled against Dutch Parliamentarian Geert Wilders, Italian journalist Oriana Fallaci, and numerous others––over 40 prosecutions since 2000 just in the paragon of “tolerance,” Denmark––simply for stating patent facts about Islamic theology written in the Koran. Nor can those accused turn to the European Court of Human Rights, which has decided that the European Convention on Human Rights does not protect “hate speech.” Nor can relief be found in the U.N.’s International Covenant on Civil and Political Rights, which likewise sanctions free speech on the subjective basis that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” So too the U.N and its utopian Convention for the Elimination of All Forms of Racial Discrimination, which obliges states to criminalize “all dissemination of ideas based on racial superiority or hatred [and] incitement to racial discrimination.” When it comes to Islam, free speech in Europe and international law is, if not dead, on life support.
Given the progressive fondness for Europe as a superior social and political model, we should not assume that such legalized censorship won’t ever take hold in America in the framework of already existing “bias intimidation” or “hate speech” laws. Such legal sanctions, even if offenders are acquitted, as Wilders was, nonetheless create what the Hudson Institute’s Paul Marshall calls “extra-legal intimidation,” self-censorship predicated on fears of violence in addition to fear of prosecution by the government. And when the enemy endorses a theology of divinely justified violence, as does the jihadists, this intimidation can be very effective indeed. We have already seen the pernicious effects of jihadist intimidation against critics of Islam in the propagandistic fantasies about Islam as the “religion of peace,” and the dread of “Islamophobia” that permeate our universities and government agencies.
In addition to empowering the government to interfere even more in our social relations, and the privileging of some political factions and ideologies over others, the assault on free speech by ever-expanding “hate speech” law strikes at the heart of our political order: the free exchange of ideas without government interference––exactly what the jihadists want to destroy.
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