Some Americans are working to outlaw so-called hate speech. In a recent paper, Arthur Milikh, formerly the associate director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation, calls the left’s effort to ban hate speech “the new tyranny over the mind.”
So what is hate speech, and how are countries around the world criminalizing it? What are the consequences of outlawing such speech? Milikh joins The Daily Signal Podcast to sort it out.
Listen to the podcast, or read the lightly edited transcript below.
We also cover these stories:
- President Donald Trump signs an executive order to ban police officers’ use of chokeholds.
- After the unrest following the killing of George Floyd, the president says that school choice is the civil rights issue of the day.
- Relatives of Ahmaud Arbery, the black man who was fatally shot while jogging in Georgia, meet privately with the president.
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Rachel del Guidice: I’m joined today on The Daily Signal Podcast by Arthur Milikh. He’s the associate director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation. Arthur, thank you so much for being on The Daily Signal Podcast.
Arthur Milikh: It’s my pleasure. Thank you for having me.
Del Guidice: Well, it’s great to have you with us. You recently just published a paper for Heritage.org called “‘Hate Speech’ and the New Tyranny Over the Mind.” So to start off, before we get talking about everything else, what is hate speech and why do we have freedom of speech in America at all?
Milikh: Great. Well, thank you. Those are great questions.
First of all, hate speech is something that’s really difficult to define. In fact, people that professionally try to define it, people that write laws or regulations in Europe where hate speech is already criminalized have a difficulty defining it. And there’s a lot of confusion about what it is.
You get a lot of public arguments about hate speech being racial epithets or Holocaust denial. And when I say those are just the public arguments, I mean that that’s not really what’s at stake and that’s not really what advocates want to either outlaw or criminalize.
Those are just the arguments for, well, meaning people that say, “Well, why should we be mean to one another?” And I personally don’t think that we should.
I think that we should be very courteous to our fellow Americans or fellow citizens, but what is at stake is not racial epithets.
Here’s the bottom line of what criminalization advocates are actually after. What they want to get rid of is speech that harms the self-respect of so-called marginalized or victim groups.
And what that means in the end is that those victim groups are free to speak as much as they want against the oppressor group, which in America, in the American context, is defined by the left. These are their words and not mine as white Americans.
So it would be perfectly permissible to speak against the oppressor group while the oppressor’s speech, which would harm the self-respect or dignity of victim groups, would be silenced.
Del Guidice: Can you tell us a little bit about this paper before we kind of delve into it? Why did you write it and what does the paper look at?
Milikh: Sure. The reason that I wrote it is because there is no such paper in existence. I don’t want to be misunderstood and think that I’m saying that, “Oh, it’s to my credit that I’ve written an original paper.” It’s not that at all.
It actually shows a real and deep problem about where conservatism is today because the hate speech criminalization regime is already halfway in place in America.
You see that the public square already bans informally any kind of speech that could be misconstrued as being offensive to marginalized groups. The big tech world is already banning the kind of speech that I just described.
Moreover, there are already precedents in the law that are on the books that could well be used in the future to ban hate speech. And on university campuses throughout America, this kind of speech is already banned.
So that’s the circumstance in which we’re living in. And conservatives don’t even have yet in paper, until I wrote this one, a paper that would summarize the problem and what we can do about it.
So the idea of the paper was the real need to articulate to Americans what the problem is, describe it in detail, and articulate what banning hate speech would lead to.
Del Guidice: How do hate speech laws undermine the purpose of the American republic to begin with?
Milikh: Sure. So, look, if we are a republic, that means that we are a people that rule ourselves. The purpose of the country that we live in is to secure political freedom for its citizens. And the only way to do that is through their own self-rule.
Now, once you begin to look with some detail into either the doctrines beneath hate speech criminalization or how they have been implemented in Europe, you very quickly see that as soon as hate speech laws or regulations or even informal rules like we have in our society today are in place to prevent so-called hate speech, the political community no longer rules itself. And I’ll give you guys a couple of examples.
My opinion is that no issue comes close to determining the future of a country like immigration does.
Well, according to some parts of the left and according to those who want to criminalize hate speech, to speak of immigration in terms of limiting it, reducing it, or stopping it is a form of hate speech because it harms the dignity or self-respect of immigrants. So take that off the table of what’s allowed for political discussion.
Well, what about speech that is a defense of the traditional family, a mother and a father with biological children? Such speech that is in defense of that traditional family, which is the cornerstone of Republican life, is also offensive to feminists and the LGBTQ. So that comes off the table.
You ask yourself then, you take a step back and ask yourself, “Well, what is the left then in the public square to be by a free people as it wants to rule itself?”
And then you say, “Well, what about sort of neutral issues like, I don’t know, budgets—federal budgets, how we spend the money, like welfare and tax policy?”
Well, even there you see that, actually, to discuss welfare is to harm the interests, the dignity, and the self-respect of certain marginalized groups, as academics have written many times and as The New York Times has said, that discussions of welfare policy are racist dog whistles. So you get rid of that.
And you see very quickly that the point of criminalizing hate speech is to reduce discussions of issues like that, so that they are off the table once and for all.
And so you very quickly see the extent to which criminalizing hate speech, taking certain political issues that are the lifeblood of a Republican people in deciding how they are going to be ruled, is in conflict with identity politics.
Del Guidice: Arthur, what would you say is the goal of outlawing so-called hate speech?
Milikh: This takes me into the realm of speculation because, of course, the more radical advocates never really say what they want.
But look, you can begin with some of the advocates who are the more decent and the well-meaning and who don’t really fully understand what it is they’re asking for.
And their answer is very basic. Their answer is, “Look, people’s self-respect should not be harmed in a political community and speech, especially racial epithets, does just that. And they never feel like they can be part of that political community. So while that kind of hate speech goes on, we don’t live in a genuine republic.”
That’s the-well meaning people.
But then the more radical people, I think, and here I have to speculate because, as I said, they don’t openly show their minds because they know how radical it is and how indigestible some of their themes are, but I can quickly go through the evidence of just one of these very radical thinkers.
He says, basically, this is a professor at the University of Alabama Law School named Richard Delgado, and his answer is something like this: The civil rights movement failed. It’s a failure because what it did was it created certain laws like public accommodation laws, like fair housing laws, that didn’t really make a difference. All they did was push discrimination, prejudice deeper into the minds of the oppressor group, which he defines as, in the American context, being white.
And so what we end up having is private discrimination that lives in the minds and is subtle, as it’s called unbiased conscious, and yet, all these phony laws … haven’t really done much of a difference.
So what he wants to do, and he says this openly, is by banning hate speech, you thereby hope to ban the bad thoughts that the oppressor group has of the marginalized. And only through those means can we approach something like equal self-respect among groups.
But he doesn’t stop there. He goes one step further. He says that even that won’t be enough because judges won’t really rule fairly, and for other reasons.
So what you have to do is the following, you need to take all of society’s cultural images and reverse them.
His example is this: During the civil rights movement, he says, minorities were represented in the public square as heroic and courageous, but after the civil rights movement, that went away.
But that’s exactly what we need to be doing today so that all of society’s cultural [images] in the press, in the media, in Hollywood, etc., all of society’s images must be in terms of elevating the marginalized and making heroes of them so as to increase their self-respect, and so as to teach the oppressor group that they should respect the marginalized.
Del Guidice: Thanks for that context, Arthur. In your paper, you talk about some examples of the criminalization of hate speech around the world, and you specifically draw out Europe and Canada. Can you talk a little bit about some of those examples of what goes on in those countries?
Milikh: Europe and Canada started criminalizing hate speech in the ’60s, but it really started rubbing up in the ’80s. And the way that they tried to define hate speech is by calling it incitement to hatred. Incitement to hatred.
So this is, obviously, a very vague formulation and what it ends up meaning is that if your speech makes somebody else hate a group, then it can be banned speech.
And we already kind of know exactly what kind of speech is banned, and here’s the kind of speech … that is deemed racist, anti-trans, homophobic, anti-religious, or xenophobic.
In Belgium, in fact, they have laws against sexist speech and they define it as any gesture or action intended to express contempt toward someone because of their sex. Let me just say that again, intended to express contempt.
So what are the punishments for this kind of speech in Europe? Well, fines in the thousands of euros. Homes have been raided. Computers have been seized. People have been arrested. Lives have been destroyed through lawsuits.
I mean, these laws have an immense chilling effect on Europe and you see some of the results in their politics. These laws push both left and right further and further into radicalization, and especially a right, who feels that the thumb of tyranny is on them.
And yet the irony of these laws, you may say, some reasonable listener may say, “OK, that may be the case, but isn’t it better to get rid of this speech in societies to make them, I don’t know, better places?”
Well, the trouble with these laws is that they simply do not work. I’ll give you some examples.
Not only are European societies full of discriminatory feelings, so the laws don’t get rid of discrimination, but in fact, if you’re Jewish and you live in the U.K., you are 13 times more likely than in the U.S. to be the victim of anti-Semitic violence. And in France, you’re four times more likely.
In other words, in the U.S., where we do not criminalize hate speech, there is considerably fewer violent attacks on Jews than in societies that do criminalize hate speech. In other words, the laws don’t even work on those grounds.
And what you end up having, actually, is a public square that is not cleansed of hate speech, not at all. What it ends up being is hate speech that is directed with a vengeance against the legacy populations in those nations.
In England, in France, in Germany, you are absolutely free if you are part of a marginalized group to call out Christianity, heterosexuality, the legacy population of those nations, and you will not be touched by the law because the laws are not equally enforced.
But if the reverse is the case, if you are a citizen in England or in … I actually have a very good example. A politician in Belgium who released leaflets talking about limiting immigration, he, through their hate speech laws, was banned from participating in political life for 10 years.
Del Guidice: Wow. That is a lot. So given the fact that the United States does have the First Amendment, would you say that protects us from going down the road of Europe and Canada, or is that not completely foolproof?
Milikh: I love this question and I think this is one of the most important ones for us to think through.
You may take a look at America and … I mean, in 2017, we had this famous Supreme Court case called Matal v. Tam that was decided unanimously, that said, basically, hate speech is protected speech. And you may say, “Well, you know what? Good. The courts will save us.”
The trouble is that conservatives have relied on the courts to save them for two generations. And every year, there’s some new creeping case that shows that you cannot put your trust in the courts. They will eventually go in this direction.
And the scene is extremely troubling, in my opinion, because if you think for a second about the famous 2015 Obergefell v. Hodges ruling that claims that gay marriage is a constitutional right, what you see is that elites, the press, activism prepared, for about 20 years, the public to receive that message so that the courts could rule that way and would not be looked at as usurpers. Such a ruling would have been impossible 20 or 30 years ago.
So courts can be convinced and influenced by activists, by universities, by other kinds of elites, and the real battle ground for the future of speech is taking place on university campuses today.
You know, I saw a recent survey that said 53% of current university students support free speech, 53%. That is a bare majority. A marked change from just a generation ago when almost everybody supported the freedom of speech.
Once this right falls out of favor with a large amount of Americans, the courts will then act and, I think, will begin to restrict the freedom of speech.
Del Guidice: Arthur, in light of all of this, what are the consequences of outlawing so-called hate speech?
Milikh: It’s hard to know because we’re dealing with such a big phenomenon. One of the things is, as I tried to make the case before, is the end of self-rule. Republican self-government is over once hate speech is criminalized.
I don’t think that anybody looks at Europe and says that that’s what republican self-government looks like. Nobody says that.
Maybe a way to answer this question is by thinking about the kinds of speech that would be banned if hate speech was outlawed or criminalized, and I think that there are three really important considerations here.
The first is, as I said before, you have to remember that the criminalization of hate speech is a one-way street. It means that the oppressor, the so-called oppressor majority, cannot speak against the marginalized, but the marginalized are free to cultivate all sorts of anchors, hatreds, resentments against the majority, and in doing so they will be considered heroes.
So that’s No. 1, that’s the first outcome of the hate speech regime.
Here’s the second one. I know that this one sounds really bizarre, but it’s true. Certain factual claims, claims of fact, will be removed from the realm of discussion. I’ll give you an example.
Speaking about the disparities in educational outcomes for affirmative action recipients will be considered speech that cannot happen. And all of the activists that are currently seeking to ban hate speech already say this outright, “That is a fact that will not be able to be discussed.”
Here’s another fact that won’t be able to be discussed, the truth of biology versus the claims of the transgender. We see this all the time already, but you will not be able to use the facts of biology to counter those ideologies.
So that’s No. 2. Certain facts will be bad, no matter how true they are.
And the third thing is, going back to this idea that I mentioned, the kind of underlying theory of identity politics, which is that all of history is really a struggle between oppressor and oppressed, that the oppressed must release themselves from the false conscience given to them by the oppressor group, find their own identity, and secure their dignity. In order to do that, they have to create myths about themselves.
So here’s one of those myths, that all of history, this is the feminist myth, all of history is really male patriarchal oppression. Or here’s another myth that The New York Times tells in its “1619 Project,” that America is fundamentally racist in its DNA.
Those narratives, as they’re called, will not be able to be questioned, even on factual grounds.
You see this today bubbling up in the public square when the current rioters and protesters say that America is absolutely systemically racist, nobody responds to it.
And that will be one of those narratives that will be verboten, will be taken off of the table from what can be questioned, even if the facts are the opposite of those claims.
Del Guidice: In the paper you talk about how four important fronts are intent on outlawing hate speech, inner banding together and growing in America. Can you just give us a quick run through of what these four fronts are?
Milikh: Sure. The first one is the obvious one, it’s the universities, and we’ve talked about them a little bit already.
The second is big tech. We’ve talked about that already, but just for our listeners, if you want to see what they think about hate speech and whether their view of hate speech is similar or the same as the theory that I laid out, you should look at their speech policies and you’ll see that they are a one-way ratchet.
And Twitter even says it openly. They say that, “We want to protect the speech of historically marginalized groups.” That’s what this is about.
So big technology, that has an enormous amount of power and whether they like it or not, they have become an essential part of the public square in America, where political decisions are made in the American public. That’s the second one.
The third one is the courts, and I mentioned before this Supreme Court case called Obergefell v. Hodges, the majority opinion of which was written by Justice [Anthony] Kennedy, where he says the following thing that I’m summarizing: “Everybody has the right to create their own identity and that, that identity must be recognized.”
And the implication of that is that, well, if that’s his understanding of dignity or that is now the official legal understanding of dignity, that means that speech that undermines your view of your own dignity is a harm and it can be banned.
That’s not what Kennedy is saying. Those aren’t his direct words. But the implication is already there, and those theories have been laid out by smart people on the left for, I don’t know, 20, 30 years. So that’s the third front.
The fourth front is that administrative agencies, especially the [Equal Employment Opportunity Commission], have already issued regulations that say that in private businesses, they can launch prosecutions against people who say jokes that are offensive.
In other words, the precedent is already in the law and this stems from civil rights legislation, which, in effect, the ’60 civil rights legislation was the first breach between public and private that said that, “No, the government has a big power, should have a big power, to regulate private industry.”
And that is only one step away from saying, “Well, if we’re actually going to root out discrimination, we have to root out discrimination in speech because that’s where discrimination begins insofar as speech is connected to the mind and prejudice lives in the mind.”
There’s a recent book on this, well, it’s not on this, but it’s a very powerful book that talks a little bit about this by Christopher Caldwell called “The Age of Entitlement,” which I would commend to you.
Del Guidice: What you talk about also, and you mentioned this briefly earlier, I believe, you talked about how the very purpose of hate speech regulation is one-sided. Can you talk a little bit about this in more depth and why this is the case of why it’s such a one-sided movement?
Milikh: Identity politics is a misnomer. When you hear this expression, “identity politics,” it sounds like, “Oh, huh, it’s the politics of all identities,” but when you dig just slightly beneath the surface, you realize it’s not the politics of all identities; it’s the politics and the celebration of some identities, i.e., those that claim to be marginalized, and it’s the putting down of the power structures of the oppressor identities. That’s what’s at stake.
So while it’s true that certain advocates for the criminalization of hate speech claim that they want neutral laws that would regulate speech, for example, laws that would say, “No bad speech against anybody based on their race, their ethnicity, their religion, their sexuality, etc.” But what you quickly see when you study cases in which such laws exist, … those laws are enforced in a completely one-sided way.
As I said before, in Western European countries, their public squares are full of hatred and theories about how the legacy population, Christianity, heterosexuality, the traditional family, are all things that need to be destroyed and hated, and those people are never prosecuted by those laws, whereas the opposite is not true.
The reason for that is very simple. The very purpose of those laws, the very purpose of implementing those laws is to vindicate and support the theory of identity politics. It’s not to allow everybody to speak freely
Del Guidice: Arthur, how would you encourage legislatures as well as those in government passing laws, working on policy to work for free speech?
Milikh: This is the trouble of the situation; you can’t just pass a sense of Congress that aims to support the freedom of speech. This stuff is just signaling that goes nowhere.
I think that you have to do two things, essentially. The first is you have to look at the places inside of America where these theories are not only becoming more and more powerful, but where they’re being implemented.
So the perfect example of that is America’s universities. My opinion is that America’s universities should no longer be funded by the public. They should no longer receive federal funding.
We have 3,000 and more colleges and universities in America. They are getting billions of dollars every year from the federal government for research grants and indirectly through student loans.
Well, I have no idea why conservatives are OK with these universities teaching young people to despise the nation, to despise the freedom of speech, and taxpayers are paying for it.
In other words, these places are free to discuss as they want, but it is not OK for them to be federally funded.
So conservatives have to take a really hard look at these kinds of things if you want to stop hate speech from actually being implemented in America. Which, … I’ve said, I don’t think is impossible. It could happen in the next 15 or 20 years.
Del Guidice: So, Arthur, in light of current events when it comes to all the protesting and rioting and looting following the death of George Floyd, what would you say to people when it comes to exercising free speech well, and some of the things you’ve talked about in your paper, what they can keep in mind?
Milikh: First of all, I think that these riots and protests partly prove my thesis about what is coming down the pipe for the freedom of speech.
What I mean is that the major claim of the protesters is that the country is systemically and fundamentally racist to the point that we cannot speak about such things and persuade the majority of that, but we have to use direct violence to show them that we hate this.
What you see from that is that if the left wins on this issue, it will become impossible to falsify the theory that America is systematically racist. That will be considered a form of hate speech.
I don’t know if it will be outright criminalized, but it will be impossible to speak about it in public, nobody will print you, and that will be the narrative that everybody absolutely has to accept and must support in any speaking that they do.
You already see this in corporations, on campuses, in other places in America. That theory that America is systematically racist leads necessarily to violence.
The reason is, why would you respect a country, its institutions—and by institutions I mean Congress—the freedom of speech, the right peaceably to assemble, why would you respect any of those things and follow the kind of civilizational guidelines that the Constitution and the nation lays out for change if you say that it is fundamentally racist and disgusting and despicable?
You don’t. You riot. You force people. You compel people through force or the threat of force.
That’s what a lot of these protests and riots are revealing, where the left wants to go if they do continue to accept wholesale the identity politics theory, and as they move away further and further from a party that represents working-class Americans.
Del Guidice: Arthur, thank you so much for coming on The Daily Single Podcast and talking through some really important issues. We appreciate having you on.
Milikh: It’s been a pleasure. Thank you very much.