Prosecuting hate speech

A New York Times article reports that online hate speech in Germany is being prosecuted, with fines and sometimes jail time being part of the penalties. This touches on what I see as one of the most complex but important issues in modern politics. 

Americans are untrained and defenseless

American society is clearly not able to defend itself. We are overwhelmed by a vast online onslaught of divisive lies, slanders, flawed motivated reasoning, crackpot conspiracies, irrational emotional manipulation, slanders and all the other filth and moral rot that is protected free speech in the US. Social media companies claim to police it, but it is clear by now that such a claim is mostly window dressing (~95% ?). That is just a fig leaf that allows social media companies to claim that hate and lies are being policed. Profit prevents the companies from getting serious about hate speech.

On top of that, hate speech cannot be policed in public places and platforms. Only private sources and police and censor it. 

In my firm opinion, decades of dark free speech in America has been and is the single most potent and effective tool that radical right conservatives used to tear American society apart and subvert both politics and democracy. Decades of dark free speech has pushed conservative politics into normalization and acceptance of, a shocking degree of mendacity, authoritarianism, corruption and radical Christian theocracy that comes straight out of the Dark Ages. That is now accepted politics by tens of millions of conservative American adults.

The NYT writes:

At that exact moment in March, a similar scene was playing out at about 100 other homes across Germany, part of a coordinated nationwide crackdown that continues to this day. After sharing images circulating on Facebook that carried a fake statement, the perpetrators had devices confiscated and some were fined.

“We are making it clear that anyone who posts hate messages must expect the police to be at the front door afterward,” Holger Münch, the head of the Federal Criminal Police Office, said after the March raids.

Hate speech, extremism, misogyny and misinformation are well-known byproducts of the internet. But the people behind the most toxic online behavior typically avoid any personal major real-world consequences. Most Western democracies like the United States have avoided policing the internet because of free speech rights, leaving a sea of slurs, targeted harassment and tweets telling public figures they’d be better off dead. At most, Facebook, YouTube or Twitter remove a post or suspend their account.

But over the past several years, Germany has forged another path, criminally prosecuting people for online hate speech.

German authorities have brought charges for insults, threats and harassment. The police have raided homes, confiscated electronics and brought people in for questioning. Judges have enforced fines worth thousands of dollars each and, in some cases, sent offenders to jail. The threat of prosecution, they believe, will not eradicate hate online, but push some of the worst behavior back into the shadows.

In doing so, they have flipped inside out what, to American ears, it means to protect free speech. The authorities in Germany argue that they are encouraging and defending free speech by providing a space where people can share opinions without fear of being attacked or abused.

“There has to be a line you cannot cross,” said Svenja Meininghaus, a state prosecutor who attended the raid of the father’s house. “There has to be consequences.”

But even in Germany, a country where the stain of Nazism drives a belief that free speech is not absolute, the crackdown is generating fierce debate:

How far is too far?

Is it going too far to censor actual, provable lies, which are usually a non-trivial component of crackpot conspiracy theories? What about slanders? Essentially all of the liars, conspiracy crackpots and slanderers claim to speak truth. They vehemently deny that they are liars, crackpots and/or slanderers. By doing that they implicitly but undeniably point to truth, honesty and non-slander as something good.[1]  

What about flawed motivated reasoning? That is more complicated and subtle, but nonetheless a critically important consideration. The human mind is susceptible to it and we are usually completely unaware that it is in operation. Wikipedia:

Motivated reasoning is the phenomenon in cognitive science and social psychology in which emotional biases lead to justifications or decisions based on their desirability rather than an accurate reflection of the evidence. It is the “tendency to find arguments in favor of conclusions we want to believe to be stronger than arguments for conclusions we do not want to believe.” People can therefore draw self-serving conclusions not just because they want to but because the conclusions seemed more plausible given their beliefs and expectancies.

When I listen to most Republican politicians and partisans speak, motivated reasoning is usually a non-trivial or dominant part of what is being asserted. Usually, the reasoning is based on one or more provable lies that are folded into the argument being asserted. That is one objective basis to censor motivated reasoning. It seems that one or more lies or falsehoods cut through most dark free speech (~80% ?). 

What about motivated reasoning that is not based heavily on lies or falsehoods? Some arguments based on logic flaws can be like that. For example, relying on a circular or strawman argument or by positing a false dilemma. Many people, especially most partisans and ideologues, do that fairly regularly. They firmly believe their argument and reject allegations of any error in their reasoning. 

Questions of censorship are complicated but important. For years it seemed best to leave dark free speech free and untouched. Then it became clear that it is divisive, deadly and corrosive to society, respect for truth, democracy, the rule of law and civil liberties. 

The stakes of leaving dark free speech untouched are very high. The stakes of touching it might be just as high. That is because, if autocrats, theocrats and/or kleptocrats (ATKs) rise to power, they could and probably would impose limits on free speech. Their limits would related to squelching criticism and inconvenient truth. That’s what the ATKs in places like China, Russia and North Korea have done. 

Yes, ATKs would try to subvert laws that censor some or most dark free speech that are intended to defend truth and democracy. That is an ever-present risk of censorship. 

Q: What runs the higher risk to truth and democracy, trying to censor some or most dark free speech or leaving it all alone and letting the ATK chips fall where they will?

Footnote:

1. That strikes me as being akin to Putin holding an election “referendum” in occupied Ukraine and then telling the World the people there, who were forced at gunpoint to vote as they were told, want to be part of Russia. Even a murdering thug like Putin must see at least propaganda value in elections, even if they are an obvious farce.