The frustrated assassination of the vice president has placed us before the possibility of a bill to regulate the so-called “hate speech”, on which so far only the will of a part of the ruling party has been expressed. The proposal has a precedent in the popularly known as the “Hate Law” of Venezuela, sanctioned in 2017, which punishes with up to 20 years in prison whoever, according to the norm, publicly incites hatred, discrimination or violence on the basis of their actual or presumed membership in a particular ethnic, social or political group.
By virtue of this, it seems necessary to explore this category, as imprecise and ambiguous as it is dangerous, due to its effects of restricting freedom of expression and the press of actors opposed to those who hold state power. In this sense, INADI itself recognized in a December 2020 report that There is no agreed definition of hate speech. Despite this, it concludes that these are “expressions used to harass, persecute, segregate, justify violence or the deprivation of the exercise of rights, generating an environment of prejudice and intolerance that encourages discrimination, hostility or violent attacks against certain people or groups of people; for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic position or any other social condition”. Therefore, the question we ask ourselves is about the degree of performativity of “hate speech”, that is, to what extent these types of statements produce direct negative consequences on a state of affairs.
The British philosopher JL Austin defined performative utterances as those that have “illocutionary” and “perlocutionary” force, insofar as they possess the capacity to create a reality: they are speech acts (speech acts). For example, when a priest pronounces “I declare you husband and wife” within the framework of a marriage ceremony, he is literally producing a state in those people that did not exist before and that has consequences, since a married person is expected to behave according to certain guidelines, codes and values. Now, the question will be to gauge to what extent the proliferation of so-called “hate speech” performs, that is, produces a reality that leads certain individuals to commit certain criminal actions. To analyze this articulation, I will refer to works by two authors: on the one hand, Ronald Dworkin, from a progressive liberal position; and, on the other, Judith Butler, from a queer left perspective. In the first case it is an article entitled “Do we have the right to pornography?”, from 1981, and in the second of two interventions that are part of his book Excitable Speech (1997). The curious thing about these texts is that, coming from dissimilar philosophical-political positions, they converge in their criticism of the State’s restriction or prohibition of hate speech.
not so hate speech
Dworkin’s position problematizes access to pornography, which he equates in certain passages with expressions of the hate speech regarding misogyny and the brutality of certain sexual representations. In this sense, one way to evaluate the publication and circulation of aggressive or aggravating material is through what the author calls a “target-based” strategy: while certain radical expressions may be harmful to the community in the short term, for influencing certain people, the long-term consequences of censoring or suppressing them would be even worse. When reflecting specifically on political proclamations, Dworkin is clear when he states that “the political activity of a community becomes more vigorous when there is variety, even when absolutely despicable points of view appear”.
That is why, for the philosopher, a plural society has the duty to include all voices, including so-called “hate speech”, which must be protected under the First Amendment of the US Constitution. In this direction, the state regulation of hate speech for Dworkin violates the principles of authenticity and self-respect of each individual, in the sense that each person has the right to express their political convictions in the public sphere in an authentic manner within the framework of your personality. This justification will therefore lead to the defense of the free expression of aggressive speeches, supported, according to Dworkin, in that a society will be more democratic and robust to the extent that the market of ideas is diverse and heterogeneous (including extremes) and even more so when the reasons for all positions are openly circulated and evaluated. This discursive proliferation will only expose the weakness of doctrines based solely on rejection when confronted with others.
The political activity of a community becomes more vigorous when there is variety, even when absolutely despicable points of view appear.
For his part, Butler maintains that speech is always somehow out of control, therefore, trying to regulate the effects of speech (whether or not it is hate speech) makes no sense, since the consequences are not necessarily planned. nor intentional when issuing a statement. In this respect, a performative proposition does not always imply effectiveness, that is, it is full of failed performatives. However, there are other elements that are interesting from Butler’s argument: although it is not her intention to minimize the pain that hate speech can cause, it is also important, in her own terms, to “leave open the possibility of its failure, since this opening is the condition for a critical response. If the explanation of the damage produced by hate speech excludes the possibility of a critical response to such damage, the explanation only confirms the totalizing effects of such damage. These arguments are often useful in legal contexts, but are counterproductive when thinking about non-state forms of agency and resistance.
What Butler is telling us is that prohibiting offensive expressions or reprehensible representations (within which he also includes, like Dworkin, pornography) prevents the possibility of a dispute between certain groups in civil society over the meaning of words and media, leaving only the State in a position of action (which, by the way, can also engage in hate speech). In fact, queer theory itself would not exist without the reappropriation and resignification of the insult “queer” (queer, queer) by sexual minorities who, far from claiming state censorship, breathed into it a subversive, creative, affirmative and powerful to a term originally pronounced in a derogatory and pejorative way. Butler is very clear in her position against state intervention in matters of hate speech: “Those who assert that hate speech produces ‘a class of victims’ deny critical agency and tend to support forms of intervention in which the State completely assumes the agency. Instead of state-sponsored censorship, there is a form of social and cultural language struggle in which agency is derived from offense, an offense that can be countered thanks to this derivation. This position has led her to say to Martha Nussbaum, in a critical tone article on Butlerian thought, that “Butler’s argument has implications far beyond cases of hate speech and pornography. He would seem to support either a legal quietism or a radical libertarianism.” And he adds: “This is not the same argument radical libertarians use to oppose building codes and anti-discrimination laws. But the conclusions converge.
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In short, both Dworkin and Butler, from dissimilar argumentative strategies, lead us to conclusions that converge towards a state non-intervention on the so-called hate speech. This “discursive libertarianism” is convincing for those of us who are in favor of a pluralistic, heterogeneous, multicultural society, respectful of the diversity of lifestyles and freedom of expression without any prerogative, since it avoids falling into the risk of state paternalism that It violates the autonomy of our bodies and consciences. At the same time, it shows how problematic the “slippery slope” argument is (slippery slope), exposing the latent danger that exists in the suppression of extreme, radical or “unconventional” political or artistic expressions if we begin to set limits and prohibitions that are later difficult to stop. The abrupt descent down the aforementioned slippery slope under the pretext of “protecting” the population from hate speech has an end that is as announced as it is authoritarian.
From hating to doing
Based on what has been said, is it possible to affirm that hate speech, whose definition has no consensus, acquires the modality of a performative statement? If it is not feasible to establish a direct link between this type of insulting expression and the increase in political violence, then, at the very least, it is a failed or ineffective performativity. This, for example, is documented in studies that evaluate the causal relationship between the consumption of pornographic material and the increase in sexual violence, whose results are negative. To be clearer let me use a hyperbolic example: no fan of the movies serial killers he “becomes a psychopath” as a result of the systematic viewing of these films. I mean: the psychopathic character of an individual is independent of certain objectionable messages and representations. In this sense, the causal link between hate speech and direct action that implies a certain risk has not been proven, since there are no serious quantitative or qualitative studies.
Beyond the debate around this hypothetical bill (personally I think it will come to nothing, like all the crazy initiatives of this government), what is a revealing symptom of this discussion is the struggle around human passions. In other words, hate and love are dimensions that go through all of us, that is, we are affective beings driven by emotional states. Now, trying to “disincentivize” the expression of certain passions from state regulations would be hilarious if it were not worrying.
Pretending to “disincentivize” the expression of certain passions from state regulations would be hilarious if it were not worrying.
The great philosopher Baruch Spinoza used to say that the happy passions (love, admiration, generosity, among others) constitute us just as much as the sad passions (hatred, resentment, envy, etc.), just as he maintained that man should reject sad passions in order to seek joyful passions in order to live a life of well-being with rationality and intelligence. I think, in a way spinoziana, that a life worth living is one in which joyful passions always outweigh sad passions (this is what I try to do in my own life), it is an existence in which power unfolds and grows from of mutual affection with people whom we love, admire or desire. This task is not easy.
However, in my opinion, it is a daily job that each of us must do, promoting spaces where joy is the common thread with our family, friends, couples or professional ties. The State has nothing to do there, “regulating” a sad passion like hate and even less a State under the aegis of the present government, whose backbone is inserted on a moral blackmail hidden in the noble intention of “taking care” of peace. people’s society. I believe that this strategy is no longer effective: all that remains is an increasingly rusty and fossilized dynamic that causes rejection, laughter or indifference.
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