Criminalising hate

Published April 15, 2024
The writer is an author.
The writer is an author.

THERE is a Stephen Spielberg movie called Minority Report, based on a Philip K. Dick science fiction novella set in the year 2054. Tom Cruise plays a police officer who heads a special unit that uses Pre-Cogs, people with psychic powers who can see the future and predict crimes. When Cruise is accused of a crime he is going to commit 36 hours from now, it is merely the vision of a psychic that plunges Cruise into a desperate fight to clear his name and not be killed.

I thought of this film when I read about a new law enacted in Scotland called the Hate Crime and Public Order Act. Hate crime laws had already existed in Scotland; the new law adds more categories to the group of protected minorities: age, disability, religion, sexual orientation, transgender identity or being intersex. It also abolishes the crime of blasphemy, which most developed nations consider to be outdated.

The hate crime law, passed in 2021, came into effect on April 1, 2024. It does not include protections for biological women. Instead, the Scottish government, led by First Minister Humza Yousuf, proposes to enact a separate law criminalising misogyny at a later date. This has caused tremendous controversy, as duelling groups argue that women’s rights are being trampled in favour of transgender rights.

Confusingly, it is not meant to “stifle criticism or debate”, or even to stop people from “expressing controversial, challenging, or offensive views” (quotes from a Scottish government spokesperson speaking to CNN). On social media, people are posting controversial statements just to test its boundaries. In the law’s first week, police received over 7,000 complaints, of which only 240 were officially recorded, and the rest deemed as false complaints. Described as an “unmitigated disaster”, the law is causing more problems than it hoped to solve.

One can’t truly legislate against hatred as a felt human emotion.

Hate speech laws that get it right must serve as a balance between public safety and order, and the right for people to express themselves freely — hence the classic example, that you can’t go into a crowded theatre and shout ‘Fire!’ because of the harmful consequences of that act. Most hate speech laws criminalise speech that incites people to violence and physical harm. The Scottish law takes this even further; if your speech incites hatred, not even actual violence, against a protected group, you are criminally liable.

Hate speech laws engender a debate about what we want our societies to look like, and how we want our citizens to behave versus how much freedom of thought and expression we want them to have. They also attempt to make it mandatory to treat others with respect and dignity. But you can’t truly legislate against hatred as a felt human emotion, any more than you can make it enforceable by law to love against someone’s will.

We are trying to legally intervene in the delicate space between emotion, ethics, and action, by acting as a barrier to human beings racing along the signal-free corridor of the amygdala, the part of the brain that generates impulses. Your pre-frontal cortex, which weighs the consequences of those impulses, may decide that a little hatred in the right time and the right place is actually a good thing, as Aristotle described the relationship between hatred and virtue. But just in case, the Hate Crime Law, with its attendant punishments, is there to guide you to the better choice of keeping your hateful thoughts to yourself.

In George Orwell’s dystopian classic 1984, laws against thoughtcrime, or having negative thoughts against the ruling government, was the most extreme type of hate speech law. Thoughtcrimes did not have to be acted upon, nor did they have to cause physical or material harm. Merely a person’s beliefs, expressed to another or written in a diary, could bring a citizen of Oceania such as Winston Smith into the reach of the ThinkPol, or thought police, though he avoided the ultimate fate of vaporisation.

But rather than 1984 or the Minority Report, I look at Pakistan as a prime example of hate speech laws gone wrong, where the mere suggestion of sacrilege results in pogroms, desecration, and death before the legal process against it has even begun. Meanwhile, vulnerable populations — women, khwaja siras and intersex people, the disabled, non-Muslims and minority sects — continue to experience hatred, discrimination and violence freely expressed in thought, words, and action. In Pakistan, this kind of hatred is not banned; instead, it is weaponised. When will we come up with the kind of laws to protect our citizens from that?

The writer is an author.

X: @binashah

Published in Dawn, April 15th, 2024

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