Rescuing democracy from the harms of hate speech

Minorities under fire: Muslim Americans in Middle Tennessee and Christian Indonesians in West Java have both been targeted by majoritarian rightwing intolerance. Cherian George/HateSpin.Net. All rights reserved.The twenty-first century began
with more nations than ever signed up for the democratic project. Today, though,
one gets the gnawing sense that many communities did not read the fine print of
that social contract.

Popular sovereignty only works
when it includes the values of tolerance and mutual respect. That’s supposed to
be part of the deal. But some groups are greedy for an exclusive say over their
country’s direction. They claim people-power for themselves while suppressing
other groups’ legitimate desire for dignity.

These groups’ hate speech afflicts
new democracies like Myanmar, where the Rohingya minority teeters on extermination, as well as the oldest ones like the United
States, where Donald Trump’s loutish presidential election campaign has polluted the country’s civic norms.

Open societies somehow need to
preserve freedom of expression while protecting vulnerable groups from hate
campaigns that rob them of their equal right to live in safety and worship as
they believe.

I draw lessons from two
long-running hate episodes from opposite sides of the planet. Around 2009, in
the American state of Tennessee, local Muslims’ plan to build a mosque on the outskirts
of Murfreesboro was vigorously opposed by rightwing bigots. Meantime, in Bogor, Indonesia, the
Taman Yasmin Christian congregation’s attempts to worship at a new church building were fiercely resisted by hardline Muslim groups.

The Muslims of Murfreesboro were accused
of being jihadist sympathisers intent on imposing Sharia on the United States.
The Protestants of Bogor were alleged to be part of a grand conspiracy to
Christianise Indonesia. 

The misinformation was pushed by
fringe groups, but their campaigns were potent enough to thwart the targeted
communities’ legitimate desire to worship freely. The free marketplace of ideas
allowed these lies and prejudices to flourish.

The first point to note, then, is
that vulnerable minorities often need protection from hate speech – or, more
precisely, expression that incites discrimination or violence by vilifying a
group’s identity. Hate speech represents a kind of market failure in the
exchange of ideas. The targeted group is unable to compete on equal terms because
of its small size or other historical and cultural handicaps.

As with other market failures,
hate speech may require public intervention, including, in some circumstances,
legal prohibition. This principle is enshrined in international human rights
law. Article 20 of the International Covenant on Civil and Political Rights (ICCPR) requires states to prohibit incitement
to discrimination, hostility and violence.

A second core principle, however,
is that less is more – states should not overreach. They must not censor expression
that only offends people’s feelings, even if it insults their deeply held
beliefs. 

This, too, is in line with international
human rights law. Article 19 of the ICCPR protects freedom of expression. While
not absolute, this right would be meaningless if it did not cover expression of
ideas that shock and offend some people. After all, if it did not outrage
anyone, nobody would try to suppress it, and it would not need to be protected
as a right.

This liberal free speech standard
is sometimes portrayed as being at the expense of religion. This is not necessarily
true. Banning religious offence can penalise religious groups as much as anyone
else. Unfortunately, many states are too eager to restrict questionable speech, and much
too negligent in policing flagrantly discriminatory acts.

Laws against insult – like
Indonesia’s blasphemy legislation or India’s statute against wounding religious
feelings – may have been enacted to preserve social harmony, but they
invariably backfire. They get coopted by hardline groups that deliberately take
offence at books, videos, cartoons and places of worship, and then demand the
laws against offence be enforced.

Thus, the coercive capacity of
the state gets hijacked by the most intolerant groups. Instead of promoting
respect for diversity, these laws encourage competing radical groups to express
more and more outrage at things that are too different for their liking, as a
political strategy to get attention and trigger legal action against their opponents.
The most reasonable religious groups are sidelined by this dynamic, even though
their self-restraint in the face of offence is exactly what society should
encourage.

Numerous human rights monitors
have observed that Indonesia’s blasphemy law has had this effect, emboldening hardline groups at the expense
of religious minorities such as church-less Christian congregations as well as Muslim
sects such as the Ahmadiyah.

Divergent fates: Although delayed by protests, the Murfreesboro Mosque (top) eventually got the go-ahead. Christian groups in West Java, however, are still waiting, resorting to open-air services in central Jakarta to highlight their plight (bottom). Cherian George/HateSpin.Net. All rights reserved.My third point returns us to that
story of the American mosque and the Indonesian church. It has a paradoxical conclusion.

The US Constitution’s firm free
speech guarantees meant that the Muslims in Tennessee had virtually no
protection against hate propaganda. Post-Reformasi Indonesia also enjoys great
freedom of expression, but both incitement and offence are policed more
strictly there than in the US.

The irony is that the Murfreesboro
mosque that American hate groups vilified is today up and running;
while the Taman Yasmin Christians in Indonesia are still waiting for
local authorities to allow them to build their church. Every fortnight, you can
find them worshipping in the open air at the National Monument Park, near the
Presidential Palace.

This paradox is explained by the
fact that although the US government is laissez faire about public discourse, it
is highly interventionist in protecting religious equality. No matter how stridently
local public opinion opposed the mosque, American courts were always going to
stand by Muslims’ right to practice their faith. As the imam of the mosque told
me simply, “The Constitution was on our side.”

In Indonesia and many other
democracies, states are less resolute in protecting minority rights.
Indonesia’s supreme court has ruled in favour of the Yasmin church, but the
government has so far failed to enforce the judgment.

The
lesson here is that, while we should take hate speech seriously, actions ultimately
speak louder than words.

Unfortunately,
many states are too eager to restrict questionable
speech, and much too negligent in policing flagrantly discriminatory acts. We
won’t get rid of intolerant groups that defame communities that are different. But
we can insist
that governments protect the substantive equality that
citizens of a democracy have a right to expect.