On January 18th, the European Parliament (EP) will vote on a resolution that proposes extending the list of EU-wide crimes to include all forms of ‘hate crime’ and ‘hate speech.’
If, as looks likely, the resolution is passed, the only thing standing in the way of these dubious categories of speech being added to the EU’s list of particularly serious crimes that “have impact beyond national borders” will be a vote in the Council of the European Union.
For so-called ‘Euro-crimes’ of this kind, the EP and the European Commission (EC) have the power to establish minimum rules concerning the definition of criminal offences and sanctions, which member states must then integrate into their own legal systems.
The EU’s ability to flout the principle of subsidiarity in such a cavalier fashion is entrenched in Article 83(1) of the Treaty of the Functioning of the European Union (TFEU), which provides for a list of ‘Euro-crimes.’
Although this list is exhaustive, and currently includes just ten “areas of crime”—including terrorism, human trafficking, and the sexual exploitation of women and children—Article 83(1) contains a provision allowing the Council to adopt a decision (subject to the consent of the EP) extending that list.
This process was triggered back in 2020, when EC President Ursula von der Leyen announced, in her State of the Union Address and in the accompanying letter of intent, a new initiative “to extend the list of EU crimes to all forms of hate crime and hate speech—whether because of race, religion, gender or sexuality.”
The change this proposal requires is staggering. Although all member states currently criminalise hate speech on grounds of race, colour, religion, descent, national or ethnic origin, only 20 of them explicitly include sexual orientation in hate speech legislation, while 12 include gender identity and a mere two cover sex characteristics.
At first glance there might seem little to dislike about a proposal aimed at more effectively policing and sanctioning ‘hate speech.’ After all, who wants to defend hatred? Surely, as President von der Leyen herself has said: “Hate is hate—and no-one should have to deal with it.”
But even if we mistake such tautological platitudes for genuine wisdom, it doesn’t necessarily follow that perceived hate is always actual hate. For anyone concerned to protect freedom of thought, speech and expression, part of the problem with the EC’s proposal is that a variety of different subcategories of expression are often now clumsily written off as ‘hate speech.’
In that sense, we’re dealing with a concept that exists on a spectrum.
At the hardest, most extreme end of that spectrum sit forms of expression that incite violence or hostility against other persons and groups, and that is therefore prohibited under all major international and regional human rights treaties.
Beyond that, however, at the softer end of the spectrum, the term ‘hate speech’ becomes something of a legal misnomer, since what is being referred to are forms of expression that some people or groups may indeed claim to find insulting, upsetting, or offensive, but that nonetheless receive and warrant legal protection.
The introduction of this element of subjectivity into the policing of hate speech—the continuing elongation of the spectrum at its softer end, as it were—has not been entirely unintentional, allowing as it does for the EC’s unelected bureaucrats to rearticulate what qualifies as ‘hatred’ in their own political interests, thus widening the net of applicability to various individuals and groups whose dissenting views on climate change, mass immigration, and LGBTQ+ issues are ideologically inconvenient.
Understood in this context, it’s clear that President von der Leyen’s proposal forms part of a longer-term trend across all of the EU’s three governing bodies towards lowering the criminality threshold for punishable speech and thus rendering much of that softer side of the spectrum a matter for the police.
Across the documentation associated with the EC’s proposal, for instance, one finds various approving nods to the definition of ‘hate speech’ articulated by the UN’s Committee on the Elimination of Racial Discrimination (CERD): “A form of other-directed speech which rejects the core human rights principle of human dignity and equality and seeks to degrade the standing of individuals and groups in the estimation of society.”
Note that unlike every other international definition of the phenomenon—including the EC’s own definition—CERD’s definition severs the link between ‘hate speech’ and incitement to violence.
In a draft report endorsing the EC’s Communication, the European Parliament’s Civil Liberties Committee not only cites CERD, but also claims that “the fundamental right that is protected in the fight against hate speech and hate crime is human dignity,” that “future EU legislation to cover hate speech and hate crimes must protect human dignity,” and that the EU must “offer protection that does not exclude new social motivations for hatred, since it is the dignity of the victims that must be protected.”
But what might that look like in practice? Will carrying a placard stating “Transwomen are not women” violate the human dignity of someone with the relevant protected characteristics? Will Christians who take to social media to share their views on marriage and sexuality violate the human dignity of people who claim an eccentric gender identity for themselves or feel a particular sexual orientation? And what about situations, as in Ireland following the Dublin riots—where social media users identify the nationality of a suspected murderer—will that be taken to violate the human dignity of others who share similar national, ethnic or racial characteristics?
In fact, we don’t need to speculate on the basis of hypothetical examples.
The Finnish politician Paivi Rasanen’s recent, four-year long legal ordeal, in which she was charged under the country’s recently implemented hate speech laws for tweeting a verse from the Bible while challenging her local church for its decision to sponsor a Helsinki Pride event, already provides a worrying glimpse into the EC’s brave new world.
Plus, although most of the human rights organisations, charities, and NGOs that work with and alongside the EU are fairly coy when it comes to providing real-world examples of ‘hate speech,’ tucked away in the Council of Europe’s recent Study on preventing and combating hate speech in times of crisis is a subsection titled ‘Hate speech and the Russian Federation’s war of aggression against Ukraine’ that contains the following passage:
At local level [in Germany], though—especially in small towns or villages where refugees from Ukraine have been and are hosted—tensions have arisen, and law enforcement has been alerted in case of hate speech … according to the Society for Civil Rights, hate speech has started targeting refugees from Ukraine, also as a reaction to a recent ‘housing crisis’ in Germany. People in fact have started complaining that “refugees have better accommodation than our homeless people, than our poor.”
Is that hate speech that violates the human dignity of Ukrainians, one wonders, or simply the expression of perfectly legitimate political opinion concerning the German’s state’s approach to territorial borders, immigration, and welfare provision?
In part, of course, the motivation for lowering the criminality threshold is, for want of a better word, woke. As one academic notes approvingly of the EC’s initiative:
There has been an observable shift in the perception and understanding of harms of hate speech, which is undoubtedly connected … to the societal sensibilisation to long-invisible or less visible victimhoods, to voices of minorities and to the increased general knowledge, based on research on the dynamics and impact of such conduct.
According to the European Network of Equality Bodies (Equinet), the fact that member states insist on maintaining an objective, public-order related threshold for speech to become prosecutable is also indicative of “the failure of legislation to reflect the lived experience of vulnerable groups affected by hate speech.” The invocation of that incontestable article of woke faith, ‘lived experience,’ according to which subjectivity and solipsism trump objectivity and external reality, suggests both a political and ideological motivation behind this network.
In another part, however, the motivation seems to derive from the EU’s fascination with pathologizing certain types of speech.
“Hate speech,” as the EC notes in its initial Communication, “can lead not only to conflict, but also to hate crimes. Evidence points to a ‘pyramid of hate’ … starting from acts of bias (e.g. bullying, ridicule, dehumanisation) and discrimination (e.g. economic, political), moving up towards bias motivated violence, such as murder, rape, assault, terrorism, violent extremism, even genocide.”
This reference to a ‘pyramid of hate’ is taken from U.S. social psychologist Gordon Allport’s ‘Scale of Prejudice,’ first developed in 1954. Allport’s model includes five stages of an individual’s behavioural escalation, starting with ‘antilocution’ (bad-mouthing, stereotyping, spiteful gossiping), moving through further stages of ‘avoidance,’ ‘discrimination,’ and ‘attack’ (criminal damage, physical assault) and then culminating in ‘extermination’ (genocide, ethnic cleansing).
Allport himself was a Gestalt psychologist and cautioned against treating this specific model as a general deterministic predictor of human action. “Many people would never move from antilocution to avoidance; or from avoidance to active discrimination, or higher on the scale,” he wrote in The Nature of Prejudice (1954).
Yet it’s precisely this behaviourist reading of his work that seems to fascinate Europe’s political elites: an individual’s ability to engage in unchecked antilocution acts as a positive stimulus that reinforces the behaviour, which over time increases in frequency and eventually strengthens into discrimination; that same individual’s ability to engage in unchecked discrimination then positively reinforces the behaviour, which over time increases, and so on and so forth.
The underlying logic here is no longer democratic, but epidemiological. Citizens are transformed into ‘vectors’ and certain forms of speech that would once have been regarded as legitimate dissent from prevailing orthodoxies, and thus vital to a pluralist public sphere, are reconfigured as ‘risk factors’ that mark out individuals who are on a pathway towards radicalisation and the subsequent ‘transmission’ of their hatred into real-world violence.
For researchers, policymakers, and European agencies tasked with identifying linguistic risk factors and developing timely interventions designed to disrupt this radicalisation process, the consequences of this way of thinking are clear from the documentation surrounding the EC’s initiative.
There is, for instance, a noticeable shift away from political engagement with dissent (i.e., counterspeech) and towards a search for social and psychological factors contributing to the acquisition of a ‘hateful mindset.’
Perhaps unsurprisingly, much of the supporting literature includes references to a need to develop “preventative” measures capable of breaking the positive behavioural reinforcement mechanism that perpetuates these, as it were, diseased states of mind.
As per the Council of European Committee of Ministers (CECM) recommendation on combating hate speech, “state authorities, national human rights institutions, equality bodies, civil society organisations, the media, internet intermediaries and other relevant stakeholders should not only cooperate on specific initiatives, but also share data and best practice, and, via coordinated mid-term action plans, work more thoroughly on prevention.”
By “prevention,” the CECM of course means ‘prophylactic censorship.’
One of the ‘stakeholders’ CECM refers to in this document is the EU-funded European Online Hate Lab (EOHL), which is currently attempting to “increase the knowledge of ecosystems of hatred online and the capacity to respond.” The key phrase there is “ecosystems of hatred.”
In labelling certain forms of speech as “toxic language” (i.e., “a rude, disrespectful, or unreasonable comment that is likely to make you leave a discussion”) and “offensive language” (i.e., “any form of non-acceptable language (profanity) or a targeted offense, which can be veiled or direct”), the EOHL is effectively repositioning “lawful speech” as something that constitutes the periphery of a new, remarkably expansive “ecosystem of hate.”
In other words, speech that most of us would regard as robust, but also lawful, and therefore part and parcel of what it means to live in a pluralist liberal democracy, is being rendered as the linguistic equivalent of a ‘gateway drug.’
Once again, the potential for this Allport-ian way of thinking to be weaponised by the EU’s political elites as a means to ‘go after’ any forms of speech that they happen not to like for ideological reasons is abundantly clear. Because of course to pathologize certain types of political speech is to pave the way for their subsequent criminalisation.
Whether or not the EC’s current proposal to extend the list of EU-wide crimes to include “hate crime and hate speech” ever comes before the Council, the fact remains that it was born out of a way of thinking about speech and language that appears to have taken hold within the bloc’s three main institutions.
That’s likely to prove problematic for the EU, as a political system that claims “representative democracy” as of one of its six foundational values.
One of the key features of representative democracy is pluralism; that is, the freedom to share, to discuss ideas, to listen to other people and groups with whom we disagree, and to do so in a spirit of tolerance, open-mindedness and good faith. Yet it’s precisely this freedom that the EU’s current fascination with pathologizing—and criminalising—certain types of inconvenient, dissenting, and sceptical speech is putting in mortal danger.
The Brussels-led Pathologization of Speech
On January 18th, the European Parliament (EP) will vote on a resolution that proposes extending the list of EU-wide crimes to include all forms of ‘hate crime’ and ‘hate speech.’
If, as looks likely, the resolution is passed, the only thing standing in the way of these dubious categories of speech being added to the EU’s list of particularly serious crimes that “have impact beyond national borders” will be a vote in the Council of the European Union.
For so-called ‘Euro-crimes’ of this kind, the EP and the European Commission (EC) have the power to establish minimum rules concerning the definition of criminal offences and sanctions, which member states must then integrate into their own legal systems.
The EU’s ability to flout the principle of subsidiarity in such a cavalier fashion is entrenched in Article 83(1) of the Treaty of the Functioning of the European Union (TFEU), which provides for a list of ‘Euro-crimes.’
Although this list is exhaustive, and currently includes just ten “areas of crime”—including terrorism, human trafficking, and the sexual exploitation of women and children—Article 83(1) contains a provision allowing the Council to adopt a decision (subject to the consent of the EP) extending that list.
This process was triggered back in 2020, when EC President Ursula von der Leyen announced, in her State of the Union Address and in the accompanying letter of intent, a new initiative “to extend the list of EU crimes to all forms of hate crime and hate speech—whether because of race, religion, gender or sexuality.”
The change this proposal requires is staggering. Although all member states currently criminalise hate speech on grounds of race, colour, religion, descent, national or ethnic origin, only 20 of them explicitly include sexual orientation in hate speech legislation, while 12 include gender identity and a mere two cover sex characteristics.
At first glance there might seem little to dislike about a proposal aimed at more effectively policing and sanctioning ‘hate speech.’ After all, who wants to defend hatred? Surely, as President von der Leyen herself has said: “Hate is hate—and no-one should have to deal with it.”
But even if we mistake such tautological platitudes for genuine wisdom, it doesn’t necessarily follow that perceived hate is always actual hate. For anyone concerned to protect freedom of thought, speech and expression, part of the problem with the EC’s proposal is that a variety of different subcategories of expression are often now clumsily written off as ‘hate speech.’
In that sense, we’re dealing with a concept that exists on a spectrum.
At the hardest, most extreme end of that spectrum sit forms of expression that incite violence or hostility against other persons and groups, and that is therefore prohibited under all major international and regional human rights treaties.
Beyond that, however, at the softer end of the spectrum, the term ‘hate speech’ becomes something of a legal misnomer, since what is being referred to are forms of expression that some people or groups may indeed claim to find insulting, upsetting, or offensive, but that nonetheless receive and warrant legal protection.
The introduction of this element of subjectivity into the policing of hate speech—the continuing elongation of the spectrum at its softer end, as it were—has not been entirely unintentional, allowing as it does for the EC’s unelected bureaucrats to rearticulate what qualifies as ‘hatred’ in their own political interests, thus widening the net of applicability to various individuals and groups whose dissenting views on climate change, mass immigration, and LGBTQ+ issues are ideologically inconvenient.
Understood in this context, it’s clear that President von der Leyen’s proposal forms part of a longer-term trend across all of the EU’s three governing bodies towards lowering the criminality threshold for punishable speech and thus rendering much of that softer side of the spectrum a matter for the police.
Across the documentation associated with the EC’s proposal, for instance, one finds various approving nods to the definition of ‘hate speech’ articulated by the UN’s Committee on the Elimination of Racial Discrimination (CERD): “A form of other-directed speech which rejects the core human rights principle of human dignity and equality and seeks to degrade the standing of individuals and groups in the estimation of society.”
Note that unlike every other international definition of the phenomenon—including the EC’s own definition—CERD’s definition severs the link between ‘hate speech’ and incitement to violence.
In a draft report endorsing the EC’s Communication, the European Parliament’s Civil Liberties Committee not only cites CERD, but also claims that “the fundamental right that is protected in the fight against hate speech and hate crime is human dignity,” that “future EU legislation to cover hate speech and hate crimes must protect human dignity,” and that the EU must “offer protection that does not exclude new social motivations for hatred, since it is the dignity of the victims that must be protected.”
But what might that look like in practice? Will carrying a placard stating “Transwomen are not women” violate the human dignity of someone with the relevant protected characteristics? Will Christians who take to social media to share their views on marriage and sexuality violate the human dignity of people who claim an eccentric gender identity for themselves or feel a particular sexual orientation? And what about situations, as in Ireland following the Dublin riots—where social media users identify the nationality of a suspected murderer—will that be taken to violate the human dignity of others who share similar national, ethnic or racial characteristics?
In fact, we don’t need to speculate on the basis of hypothetical examples.
The Finnish politician Paivi Rasanen’s recent, four-year long legal ordeal, in which she was charged under the country’s recently implemented hate speech laws for tweeting a verse from the Bible while challenging her local church for its decision to sponsor a Helsinki Pride event, already provides a worrying glimpse into the EC’s brave new world.
Plus, although most of the human rights organisations, charities, and NGOs that work with and alongside the EU are fairly coy when it comes to providing real-world examples of ‘hate speech,’ tucked away in the Council of Europe’s recent Study on preventing and combating hate speech in times of crisis is a subsection titled ‘Hate speech and the Russian Federation’s war of aggression against Ukraine’ that contains the following passage:
Is that hate speech that violates the human dignity of Ukrainians, one wonders, or simply the expression of perfectly legitimate political opinion concerning the German’s state’s approach to territorial borders, immigration, and welfare provision?
In part, of course, the motivation for lowering the criminality threshold is, for want of a better word, woke. As one academic notes approvingly of the EC’s initiative:
According to the European Network of Equality Bodies (Equinet), the fact that member states insist on maintaining an objective, public-order related threshold for speech to become prosecutable is also indicative of “the failure of legislation to reflect the lived experience of vulnerable groups affected by hate speech.” The invocation of that incontestable article of woke faith, ‘lived experience,’ according to which subjectivity and solipsism trump objectivity and external reality, suggests both a political and ideological motivation behind this network.
In another part, however, the motivation seems to derive from the EU’s fascination with pathologizing certain types of speech.
“Hate speech,” as the EC notes in its initial Communication, “can lead not only to conflict, but also to hate crimes. Evidence points to a ‘pyramid of hate’ … starting from acts of bias (e.g. bullying, ridicule, dehumanisation) and discrimination (e.g. economic, political), moving up towards bias motivated violence, such as murder, rape, assault, terrorism, violent extremism, even genocide.”
This reference to a ‘pyramid of hate’ is taken from U.S. social psychologist Gordon Allport’s ‘Scale of Prejudice,’ first developed in 1954. Allport’s model includes five stages of an individual’s behavioural escalation, starting with ‘antilocution’ (bad-mouthing, stereotyping, spiteful gossiping), moving through further stages of ‘avoidance,’ ‘discrimination,’ and ‘attack’ (criminal damage, physical assault) and then culminating in ‘extermination’ (genocide, ethnic cleansing).
Allport himself was a Gestalt psychologist and cautioned against treating this specific model as a general deterministic predictor of human action. “Many people would never move from antilocution to avoidance; or from avoidance to active discrimination, or higher on the scale,” he wrote in The Nature of Prejudice (1954).
Yet it’s precisely this behaviourist reading of his work that seems to fascinate Europe’s political elites: an individual’s ability to engage in unchecked antilocution acts as a positive stimulus that reinforces the behaviour, which over time increases in frequency and eventually strengthens into discrimination; that same individual’s ability to engage in unchecked discrimination then positively reinforces the behaviour, which over time increases, and so on and so forth.
The underlying logic here is no longer democratic, but epidemiological. Citizens are transformed into ‘vectors’ and certain forms of speech that would once have been regarded as legitimate dissent from prevailing orthodoxies, and thus vital to a pluralist public sphere, are reconfigured as ‘risk factors’ that mark out individuals who are on a pathway towards radicalisation and the subsequent ‘transmission’ of their hatred into real-world violence.
For researchers, policymakers, and European agencies tasked with identifying linguistic risk factors and developing timely interventions designed to disrupt this radicalisation process, the consequences of this way of thinking are clear from the documentation surrounding the EC’s initiative.
There is, for instance, a noticeable shift away from political engagement with dissent (i.e., counterspeech) and towards a search for social and psychological factors contributing to the acquisition of a ‘hateful mindset.’
Perhaps unsurprisingly, much of the supporting literature includes references to a need to develop “preventative” measures capable of breaking the positive behavioural reinforcement mechanism that perpetuates these, as it were, diseased states of mind.
As per the Council of European Committee of Ministers (CECM) recommendation on combating hate speech, “state authorities, national human rights institutions, equality bodies, civil society organisations, the media, internet intermediaries and other relevant stakeholders should not only cooperate on specific initiatives, but also share data and best practice, and, via coordinated mid-term action plans, work more thoroughly on prevention.”
By “prevention,” the CECM of course means ‘prophylactic censorship.’
One of the ‘stakeholders’ CECM refers to in this document is the EU-funded European Online Hate Lab (EOHL), which is currently attempting to “increase the knowledge of ecosystems of hatred online and the capacity to respond.” The key phrase there is “ecosystems of hatred.”
In labelling certain forms of speech as “toxic language” (i.e., “a rude, disrespectful, or unreasonable comment that is likely to make you leave a discussion”) and “offensive language” (i.e., “any form of non-acceptable language (profanity) or a targeted offense, which can be veiled or direct”), the EOHL is effectively repositioning “lawful speech” as something that constitutes the periphery of a new, remarkably expansive “ecosystem of hate.”
In other words, speech that most of us would regard as robust, but also lawful, and therefore part and parcel of what it means to live in a pluralist liberal democracy, is being rendered as the linguistic equivalent of a ‘gateway drug.’
Once again, the potential for this Allport-ian way of thinking to be weaponised by the EU’s political elites as a means to ‘go after’ any forms of speech that they happen not to like for ideological reasons is abundantly clear. Because of course to pathologize certain types of political speech is to pave the way for their subsequent criminalisation.
Whether or not the EC’s current proposal to extend the list of EU-wide crimes to include “hate crime and hate speech” ever comes before the Council, the fact remains that it was born out of a way of thinking about speech and language that appears to have taken hold within the bloc’s three main institutions.
That’s likely to prove problematic for the EU, as a political system that claims “representative democracy” as of one of its six foundational values.
One of the key features of representative democracy is pluralism; that is, the freedom to share, to discuss ideas, to listen to other people and groups with whom we disagree, and to do so in a spirit of tolerance, open-mindedness and good faith. Yet it’s precisely this freedom that the EU’s current fascination with pathologizing—and criminalising—certain types of inconvenient, dissenting, and sceptical speech is putting in mortal danger.
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