Berger notes that the putative crime of hate speech has also made an appearance south of the Canadian border. That appearance is particularly prominent on college campuses in the form of speech codes. Hate crime legislation applies beyond the campus but seeks not to create new categories of crime but to increase penalties for existing crimes if motivated by “hate.” But whether we are newly criminalizing politically incorrect speech like the Canadians or “merely”
“sending a message” by doubling prison terms for criminal actions motivated by hate, we are engaging in identity politics.
As Berger notes, “the [Canadian] Supreme Court has reaffirmed the concept of ‘hate speech’ . . . which creates a legally privileged class of people who may not be criticized . . ..” NYU law professor James Jacobs (“Hate Crimes: Criminal Law & Identity Politics”) and co-author Kimberly Potter draw on sociology to explain why that is not a good idea:
“Emile Durkheim, the great French sociologist, contributed the remarkable insight that the punishment of crime plays a positive role for society. By denouncing crime and the criminal, the population reaffirms its commitment to the society’s core values and norms. Our concern is that rewriting criminal law to take into account the racial, religious, sexual, and other identities of offenders and victims will undermine the criminal law’s potential for bolstering social solidarity. By redefining crime as a facet of intergroup
conflict, hate crime laws encourage citizens to think of themselves as members of identity groups and encourage identity groups to think of themselves as victimized and besieged, thereby hardening each group’s sense of resentment”
Of course, those who are not worried about religious liberty are not likely to be worried about social solidarity, either, which they regard as just a scam designed to con oppressed groups into
obeying laws made to benefit privileged elites.
The “balkanization” of American society Jacobs and Potter warn against will no doubt be seen by identity politicians as progressive consciousness-raising.
As long as we are ruining Durkheim’s
progressive credentials by pointing out that he would have opposed the dubious concept of hate speech and crime, we might as well expose him as a latent homophobe, too. It is well-known that he viewed modern (organic) social solidarity as based on differentiation (division of labor in society). For Durkheim, sex differences are not patriarchal social constructions but a socially-functional reality. “Precisely because man and
woman are different, they seek each other passionately. . . . [P]sychologists have very justly seen in the separation of the sexes an event of tremendous importance in the evolution of emotions. It has made possible perhaps the strongest of all unselfish inclinations.” Durkheim would see both gay marriage and feminist androgyny as a threat to social solidarity.
I’m Canadian and I find the use of Human Rights commissions punitive and a form of thought police. Free speech is messy.
What we are seeing with the rise of hate speech laws and criminalization of religious parents for child neglect and abuse is a sort of revival of the role of the Censor, an officer in the ancient Roman Empire responsible for maintaining morals. The word “censorship” originates from the Roman Censor.
The Roman Censor’s role also included taking the population census. Thus, racialization, ethnization, and identity politics also have their origin in census taking.
Censors might brand a person with a “censorial mark” if they had been convicted of a crime. The consequence was “ignominia” and not “infamia.” In ancient Rome censors maintained social solidarity of a tradition-based society. Celibacy was censored in favor of marriage. Divorce was censored. Spousal abuse or abuse of children (or indulgence of children) was also censored. Even cruelty toward slaves was included. Environmental crimes included neglect in cultivating one’s fields. This was sort of the origin of misdemeanors as opposed to felonies.
Punishments included the exclusion of a person from their tribe.
To sociologist Emile Durkheim the social definition of what was considered criminal created crime. The function of punishing crime was to create a collective conscience.
In a society based on High Modernity (not tradition) we see law whose function is to invert the collective conscience. The individual has supreme rights, but only as they are a member of some identify group. Contra Roman society, marriage is viewed as deviant and, say, a gay identify is approved. Gays are to be given superior rights to those who are married as “compensation” for past criminalization and labeling as deviant. The same with other identity groups that didn’t fit in a bourgeouise or Capitalist society (racial, ethnic, gender groups). Reverse discrimination is the centerpiece of this use of censorship.
Let’s take child abuse by religious parents for example. A set of parents who believe in supernaturalism and are charged with child abuse and have their children removed from their supervision for “faith healing,” can be punished and public opinion can be galvanized against them in the mass media.
However, a set of parents who are members of the Knowledge Class (social workers, nurses, teachers, academics, lawyers, etc.) who raise their children without exposure to, say, peanuts or peanut butter in their diet, can be just as neglectful or abusive as the fundamentalist religious parent. Children develop allergies and toxic reactions to substances they are not exposed to when they are children. The results can sometimes be deadly in the case of allergy to peanuts. But oddly, neither the law nor public opinion negatively sanction such parents because they are viewed as having superior knowledge of “toxic” substances. And as members of the Knowledge Class they don’t have a diet that includes peanuts and peanut butter typically considered a working class food.
In a society of High Modernity, religious faith healing is punished but extremist environmentalism is not. In fact, the manufacturers of such foods can be considered liable. But both systems of social norms are based on faith, not one on faith and the other on science.
The degree of sociological ignorance in understanding the different systems of social
norms is what leads to legal systems that criminalize “hate speech” and legitimize affirmative action. But sociology is used to legitimate identity politics not transcend it. This lack of transcendence seems to be associated with those who do not believe in religious transcendence.
” I further think that the highly dubious concept of “hate speech” must
not be used to undermine the religious freedom of those who dissent from
current ideological orthodoxy.”
What else can it be used for? What other purpose does it have?