Many people were shocked when over 1,000 protesters were arrested in the UK and jailed for various offenses including “violent disorder” and stirring up racial hatred. Most shocking were the cases of those arrested for posting social media comments on the riots, despite not being present at the scene and there being no evidence that anybody who joined in the riots had read any of their comments.
In societies which uphold the value of individual liberty, the only purpose of the criminal law should be to restrain and punish those who commit acts of aggression against other people or their property. The criminal law should not be used to prevent people from “hating” others or to force them to “love” each other. In announcing yet another raft of laws “to expand the list of charges eligible to be prosecuted as hate crimes,” New York Governor Kathy Hochul said that “During these challenging times, we will continue to show up for each other. We are making it clear: love will always have the last word in New York.” To that end, she introduced “legislation to significantly expand eligibility for hate crime prosecution.”
Attempts to promote love between different racial or religious groups in society, for example, by charging people with stirring up “hate” when they protest against immigration, misunderstands the role of the criminal law. Threats to public order entail violating the person or property of others—as happens in a violent riot—not merely the exhibition of “hate” towards others. Yet increasingly, public order offenses are linked to hate speech or hate crimes.
Laws prohibiting hate speech and hate crimes typically define “hate” as hostility based on race, sex, gender, sexual orientation, or religion. Often, hostility is understood simply as words that offend others. For example, in the UK, the Communications Act 2003 prohibits sending “a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.” The Online Safety Act 2023 targets illegal content online including both “inciting violence” and the publication of “racially or religiously aggravated public order offenses.” Conduct online includes writing posts or publishing blogs or articles on websites.
Given that inciting violence is already a crime—“conduct, words, or other means that urge or naturally lead others to riot, violence, or insurrection”—there seems to be no discernible purpose in adding the concept of “hate” to such crimes. To give an example, writing “burn down the store” on social media might be seen as inciting violence, but writing “burn down the Muslim store” in the same circumstances would be categorized as a hate crime. Arson (actually burning down the store) is a crime, but based on the racial or religious identity of the store owner arson is deemed to be a “worse” crime—a hate crime—even though the harm in both cases and the loss suffered by store owners who are victims of arson does not vary based purely on their race or religion.
Hellbound and Down 