Our political leaders are obsessed with deploying banal phrases to summarize their complex policies. For example, in 2015, Angela Merkel radically changed the immigration landscape for the whole of Europe and explained her actions with the simple phrase “Wir schaffen das” (we can do it). Over the last decade, those seeking to redefine the traditional understanding of marriage have argued their case on the basis of “Love is Love,” as if this tautology alone explains everything about the debate. And recently, Greta Thunberg attempted to unpack complex environmental protection policy themes with the now-famous statement, “Blah Blah Blah.”
Twitter is in part to blame for the proliferation of catch-phrase politics, with political consultants and marketers no doubt insisting that all political policies come with a meaningless hashtag. This is why it is no surprise that in September 2020, Ursula von der Leyen—President of the European Commission—introduced sweeping new proposals to reform the criminal law for over 500 million people with the Tweet: “Hate is hate.”
Yes—having firmly established just a few years ago that love is love, we now move on to hate is hate. But these inane phrases are not limited to Twitter. “Hate is hate” is how the European Commission gave notice to the European Parliament on 9 December 2021 that it seeks to extend the list of EU crimes to hate speech and hate crime. This is a serious political move. While each member state of the European Union has its own criminal code, according to EU treaties, EU crimes are “particularly serious” crimes with a “cross-border dimension” that require all member states to have the same minimum standards in combatting them. Given the far-reaching implications for member states, the list of EU crimes is understandably small and currently includes offences such as terrorism, trafficking of human beings, weapons, and drugs, and organised crime. Ursula von der Leyen, however, wants to add “hate speech” to this list because “hate is hate.”
Despite the reductionistic language of our political leaders, words still matter. Definitions still matter. Yet when it comes to “hate speech,” agreed definitions are notoriously hard to find. As a 2015 UNESCO policy paper states, “Hate speech is a broad and contested term… the possibility of reaching a universally shared definition seems unlikely.” Indeed, no definition was provided by UNESCO in its 73-page paper titled “Countering Online Hate Speech.”
Similar examples abound wherever the topic is analyzed beyond the level of the soundbite. For example, the UN Secretary General’s Plan of Action on Hate Speech opens with the acknowledgment that “There is no international legal definition of hate speech, and the characterization of what is ‘hateful’ is controversial and disputed.” And as an Economist headline put it in 2018, “Germany is silencing hate speech but cannot define it.”
There are some clear lessons we should take from this:
First, the undefinable nature of “hate speech” means hate speech laws are inherently vague, subjective, open to arbitrary enforcement, and are therefore a grave threat to our freedom of speech.
We see this unfolding in Finland, where a two-year prison sentence awaits anyone who “makes available to the public… an expression of opinion or another message where a certain group is threatened, defamed or insulted.” Falling within the “war crimes” section of the criminal code, the law was no doubt intended to prevent speech that may lead to ethnic violence or even genocide. Yet the law is currently being used to prosecute the Former Minister of the Interior and longstanding Member of the Finnish Parliament Päivi Räsänen for tweeting a picture of some Bible verses. Even Twitter found this act to fall on the right side of its own ludicrously vague “hate speech” policy, yet on the 24th of January Räsänen will stand trial as a criminal defendant.
Second, it is absurd to export this confusion EU-wide. Rather than introducing a minimum standard of free speech protections, the EU seeks to do the opposite: bringing in a minimum standard of criminal censorship. But is the prosecution of a leading political figure for sharing her deeply held beliefs really something we want writ large across the continent?
And finally, we have to move beyond the reductionism of hashtag politics. Criminalizing the speech of half a billion people is a serious matter and those pushing for it must come up with something more convincing than hate is hate.
Enough is enough!
Paul Coleman is a lawyer and executive director of the legal advocacy organization ADF International. He is author of the book, Censored: How European Hate Speech Laws are Threatening Freedom of Speech (2016).