Defense attorney and seasoned trial lawyer Perry Mason never lost a case to a prosecutor who charged his clients with “hate speech” or with a “hate crime.” Or at least no defendant of Mason’s was every indicted, charged with, tried for, or found guilty of it. That is because the concepts of “hate speech” and “hate crimes” would never have been admitted by the presiding judge. Indeed, prosecutors would have found the concepts alien, inadmissible, and incompatible with objective law, as well. At least, that would have been the finding in lawyer Erle Stanley Gardner’s time, and therefore in Perry Mason’s time.
Both Mason and his usual opponent at the bar, District Attorney Hamilton Burger, while they might have dwelt on a defendant’s emotions – vengeance, jealousy, avarice, anger, bitterness – in their argumentation, they knew that it was not a defendant’s emotions that were on trial, but his actions. It is an action that is a demonstrable thing, not a person’s reason for taking an action, except through a person’s confession. And even then, it is not a person’s reason or motive for committing (or not committing) a crime that is the focus of Mason and Burger, but the action itself.
As I wrote in one of my columns, The Peril of “Hate Crimes,”
“A totalitarian anti-concept of ‘justice’ has been gnawing away at objective law without correction or opposition, and making rapid progress in a judicial system that has steadily abandoned reason and the protection of individual rights: hate crime.”
“Hate” crimes initially were violations of individual rights motivated by the perpetrators’ hatred of a victim’s race, gender, religion, or political affiliation. The nature of the motive was acknowledged, but was not the subject of a trial. Hatred is an emotion that can be traced to two fundamental evaluations: fear, and malice. One can justifiably hate what one fears, if what one fears jeopardizes a rational value or one’s life. Or, one can hate what one fears because it threatens an irrational value, such as blind faith or one’s purported racial or cultural superiority. Malice is simply a raw, unreasoning hatred of a good for being the good.
But the motivating, emotional elements of a demonstrable or provable violation of an individual’s right (murder, rape, physical assault) are now frequently factored into the severity of a defendant’s crime and in consequent punishment after his conviction and trial.
In short, the why of a crime is increasingly treated as though it were a weapon, such as a gun, a knife, or a club, or as a kind of co-conspirator or accomplice to a crime. In standard criminal cases, however, it has never been the instrument of crime that was on trial, but the defendant and his actions. Until recently, no person or criminal, to my knowledge, has been indicted, convicted, and tried because of his irrationality, only for his irrational actions and his employment of force or fraud to pursue his ends.
I was moved to revisit the subjects of “hate” speech and “hate” crime by an article on Spiked, by Joanna Williams, “Teaching Students to Fear Free Speech,” in which she observes, when commenting on the restrictive “free speech” codes at Britain’s Exeter University and other British universities:
Exeter University, like many others, uses the Equality Act to reinterpret freedom of speech as meaning the freedom not to be offended. As Greg Lukianoff puts it in Unlearning Liberty: Campus Censorship and the End of American Debate: ‘By following a “sensitivity for everyone” as opposed to a “free speech for everyone” model, you create the risk that nobody will be allowed to say anything interesting at all.’
Not even that knight of “social and economic justice,” Franklin D. Roosevelt, included, among his vaunted political soufflé of the Four Freedoms (freedom of speech, freedom of worship, freedom from want, freedom from fear), the notion in that check-off list that anyone was entitled to freedom from offense, disparagement, insult, insensitive remarks, distress, verbal abuse, disrespect, and blasphemy, aside from freedom from legitimate scholarly criticism of his economic programs or from satirical attention to the evident hypocrisy of members of his administration. FDR was such an amoral pragmatist I’m sure that were a Muslim or modern day diversity-obsessed leftie close at hand, he could have persuaded FDR to include one or all of Islam’s favorite victimhood cards, together with those of the lesbian/gay/transgender/cross-dressing brigade, as well. And that would have been quite a feat of political agenda “diversity.”
There are students who have been brow-beaten into not risking voicing criticism of or venturing an opinion on just about anything lest they be upbraided or hauled into a kangaroo court, and there are British sandwich shop owners who make jokes on Facebook about deceased tyros and tin pot dictators. Walter Olson reported on the Overlawyered site on December 14th:
Authorities in Rugeley, Staffordshire, England, detained sandwich shop owner Neil Phillips for eight hours, searched his computer, fingerprinted him and swabbed him for DNA after a local elected official complained that Phillips had engaged in online jokes and comments on Facebook, including jokes about Nelson Mandela. [Birmingham Mail, The Star] Afterward, Phillips complained that the constabulary had “over-reacted massively”: “There was no hatred. What happened to freedom of speech?”
Charles Cooke explains at NRO:
Well, the Public Order Act of 1986 happened to freedom of speech – in particular, Section 5, which makes it a crime in England for anyone “with intent to cause a person harassment, alarm or distress” to
(a) [use] threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) [display] any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.
In other words, Section 5 allows anybody to have anybody else investigated for speaking. And they have. The arrests have run the gamut: from Muslims criticizing atheists to atheists criticizing Muslims….
And that’s what happens in Britain to someone who says something interesting. Except to Muslims, Welfare Statists, and Leftists of every stripe, who regularly use threatening, abusive, and insulting words and behavior, and indulge in disorderly behavior, and religiously display writing, signs and other visible representations that are threatening, abusive and insulting, causing upholders of freedom and Western civilization harassment, alarm and distress. Upholders of freedom and Western civilization need not bother filing a complaint, as a politician did against the hapless Neil Phillips.
But, what harm can words cause? First, let’s settle on a definition of word. In her groundbreaking work, Introduction to Objectivist Epistemology*, novelist/philosopher Ayn Rand wrote:
A definition is a statement that identifies the nature of the units subsumed under a concept.
It is often said that definitions state the meaning of words. This is true, but it is not exact. A word is merely a visual-auditory symbol used to represent a concept; a word has no meaning other than that of the concept it symbolizes, and the meaning of a concept consists of its units. It is not words, but concepts that man defines-by specifying their referents.
The purpose of a definition is to distinguish a concept from all other concepts and thus to keep its units differentiated from all other existents.
Since the definition of a concept is formulated in terms of other concepts, it enables man, not only to identify and retain a concept, but also to establish the relationships, the hierarchy, the integration of all his concepts and thus the integration of his knowledge. Definitions preserve, not the chronological order in which a given man may have learned concepts, but the logical order of their hierarchical interdependence.
With certain significant exceptions, every concept can be defined and communicated in terms of other concepts. The exceptions are concepts referring to sensations, and metaphysical axioms. [p. 40]
Building on that, “hate” speech is a concept that, socially and politically, enables a person or the state to treat one’s motive as a punishable crime, or a thought (or emotion) as socially and legally impermissible, and also punishable. “Hate” speech treats words and emotions as literal physical entities capable of inflicting physical, but chiefly emotional or mental harm on another. “Hate” speech regards words as palpable forces that can effect change or trigger unwanted emotions, as though they were hammers tapping on a person’s kneecap and causing the lower leg to jerk upward.
Because words – which constitute speech – are merely audio-visual symbols of a thing for which there is a concept, they have no existential, physical attributes or character. Because they have no existential qualities, they cannot by themselves harm or affect anyone or anything. Nor can images. This is why it is humorous to watch someone coax or curse a recalcitrant engine that won’t start.
“Hate” crimes, on the other hand, are directly linked to “hate” speech because it is the motives or the contents of one’s mind in the context of a provable crime that are targeted for disapprobation. The concept of a “hate” crime refers to actions of a thought carried out in action, and moves it from moral condemnation to a chargeable crime. George Orwell anticipated the phenomenon when he devised the notion of thoughtcrime for his dystopian novel, Nineteen Eighty-Four.
In a Perry Mason court, if a defendant is on trial for murder, it may be revealed that he wanted the victim’s money or wife or prestige, or because the victim was going to disclose his embezzlement or other kind of malfeasance (and may or may not have intended to blackmail the defendant), and so took an immoral action. But his wanting something is not what he is on trial for. A Perry Mason court focused on actions taken in pursuit of some gain, or committed in vengeance, and so on.
“Hate” speech, coupled with “hate” crime, are the Gog and Magog of statism and corrupters of genuine justice. They are the twin harbingers of totalitarianism. The U.S. is moving haltingly in that direction, as witness the invocation of “hate” speech” in many judicial decisions as reason and objective law are abandoned in favor of positive law. Britain and Europe are galloping in that direction.
Mark Hendrickson noted in his Forbes Magazine article of May 30th, The Pandora’s Box of Progressivism: Positive Law:
The classical liberal view of individual rights being primary and justice consisting of government and law being for the purpose of impartially upholding those rights no longer prevails. It has been supplanted by the notion-advanced by progressives, socialists, and adherents of various other illiberal ideologies-that government should act in a positive way to make life better for people….Once Americans started to accept the notion that government should lend a helping hand, the potential expansion of government’s scope and power became unlimited.
The most recent and notorious example of “positive law” is ObamaCare, which is intended to lend Americans a “helping hand” with their health care insurance. Other examples are anti-smoking laws, anti-trans-fats laws, anti-discrimination laws, and EPA regulations. Positive law or “progressive” law is practiced by a government which sees itself as an “activist” for social legislation and which enacts laws to advance the “common good.” It is an enemy of natural law.
“Hate” speech and “hate” crime are intrusive legal examples of positive law, imposed to guarantee an individual’s or a group’s “freedom from” something that might hurt feelings or a tenuous self-respect.
There would be no room for a Perry Mason in a judicial system that universally adopted “hate” law. He would retire from his practice, knowing that the “positive” law of “hate” speech and “hate” crime could only have a negative impact on justice. He might even suspect that justice was not an end or a goal of the proponents of “hate” law, but something rather more insidious: censorship, and the shackling of the human mind.
*From Chapter 5, “Definitions.” Ayn Rand, Introduction to Objectivist Epistemology. Harry Binswanger and Leonard Peikoff, eds. (1966-1967). New York: Meridian/Penguin, 1990.
Family Security Matters Contributing Editor Edward Cline is the author of the Sparrowhawk series of novels set in England and Virginia in the decades leading up to the American Revolution, and also of Whisper the Guns and First Prize. His essays, books reviews, and other nonfiction have appeared in The Wall Street Journal, The New York Times, and other periodicals. He is a frequent contributor to Rule of Reason and The Dougout.