Hate speech is never harmless. And even the words of a law can be hate speech.

I was prompted to dust off this essay (it’s an update of one I wrote in 2017, and published on the site DailyKos) by the frantic efforts of fascists across the country to criminalize simply being trans, and to criminalize being a caring parent to a trans child:

The Human Rights Campaign (HRC) hosted a virtual briefing Tuesday on the unprecedented wave of anti-LGBTQ+ bills being introduced in state legislatures across the country. Less than two months into 2023, HRC is already tracking 340 anti-LGBTQ+ bills that have been introduced in statehouses across the country. 150 of those would specifically restrict the rights of transgender people, the highest number of bills targeting transgender people in a single year to date.

It seems evident to anyone witnessing the hearings, when anti-LGBTQ legislation is debated, that the sponsors traffic in hate speech, and in fact hate speech serves as the basis for all such legislation.

By that I mean the text of the laws themselves constitute a form of hate speech.

The printing of an official document, as an official act, of anti-LGBTQ legislation, conveys to the community at large that bigotry can be sanctioned by the state. When the draft of a law is made public, discussed, voted on and publicized, the terms and framing of concepts grant the imprimatur of state authority, and from this, legitimacy to what is simply grotesque and (literally) deranged bigotry. It represents the fullest expression of ‘gay panic’, which has been used for more than half a century in courts around the country as license to commit murder:

…“gay and trans panic” defenses remain valid defenses in many states today. The gay and trans panic defenses allow perpetrators of LGBT murders to receive a lesser sentence, and in some cases, even avoid being convicted and punished, by placing the blame for homicide on a victim’s actual or perceived sexual orientation or gender identity.

The gay and trans panic defenses are rooted in antiquated ideas that homosexuality and gender non-conformity are mental illnesses. Although these ideas have been discredited, their widespread historical acceptance is illustrated by the fact that homosexuality was included in the American Psychological Association’s Diagnostic and Statistical Manual of Mental Disorders until 1973.6 In line with this view, criminal defense attorneys began invoking the gay and trans panic defenses in the 1960s, arguing that an LGBT victim’s unwanted sexual advance caused perpetrators to enter a state of “homosexual panic,” and kill the LGBT victim.7 (pg.2)

The effect of even proposing such legislation brings immediate harm to trans individuals and their families:

“Trans people are afraid for their safety and for their ability to get any kind of medical care, but especially gender-affirming care,” says Jackson, one of the few trans physicians providing care to trans patients. “Parents of trans kids are afraid of what will happen to their kids if they can seek care. It’s a terrifying time to be trans.”

The fascists who propose and vote for anti-LGBTQ laws want, ultimately, to eradicate the LGBTQ community entirely, by any means at their disposal, including incitement to violence:

… as of 2020, around one out of every five hate crimes committed in the U.S. were motivated by anti-LGBTQ+ bias, according to the U.S. Department of Justice.

The fuel for much of this violence has been far-right rhetoric spread by white nationalist groups, extremist influencers and conservative politicians, says Yotam Ophir, an assistant professor of communications at the University at Buffalo, who studies misinformation and extremism…

The false claims and rhetoric used by right-wing extremists dehumanize and vilify the LGBTQ+ community and provoke stochastic terrorism, a phenomenon in which hate speech increases the likelihood that people will attack the targets of vicious claims. Research has also shown that this type of rhetoric can motivate people to express and possibly act on their prejudiced views. 

The potential for any individual extremist message to push people toward violence is low, Ophir says. But continuous exposure to this hate speech from many different media platforms and politicians can contribute to radicalization.

The rise in anti-LGBTQ+ hate messaging has also emboldened conservative lawmakers. For example, Tennessee legislators who sponsored a bill that seeks to ban gender-affirming care for trans youth said that they based the proposed legislation in part around Walsh’s social media crusade against Vanderbilt University Medical Center, which provides gender-affirming care…

Such hate speech from politicians boosts the likelihood of domestic terrorism, according to a 2020 study led by a researcher at Pennsylvania State University.

“Antiqueer rhetoric seeks to establish violence against the LGBTQ+ community, be it physical violence, harassment and abuse, or political violence”

Of course, inducing a state of terror is the point of such laws. That makes sponsors and proponents of anti-LGBTQ laws, by definition, terrorists:

The FBI defines terrorism, domestic or international, as the unlawful use of force or violence against persons or property to intimidate or coerce a Government or civilian population in furtherance of political or social objectives.

Of course, anti-LGBTQ legislation is also, by definition, hate speech:

To provide a unified framework for the United Nations to address the issue globally, the UN Strategy and Plan of Action on Hate Speech defines hate speech as…“any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”

To summarize, the anti-LGBTQ legislation promulgated by fascists across the US is hate speech, in the service of promoting terrorism. (And that, dear friends, is one of a host of reasons why I say the GOP is fascist organization, doing the bidding of the fascist crowd from which it emerges- the rank and file GOP voters who want it this way. Terrorists. Every. Last. One.)

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Those who insist on an absolute ‘all speech must be allowed’ standard, and claiming the First Amendment requires this, rely on an unsupported assumption: the absence of substantial harm caused by the simple act of utterance of hate speech. This assumption is false. 

The assumption that to allow hate speech to be expressed is, by itself, harmless, if not ‘beneficial to the marketplace of ideas’, and similarly, the naive belief that  ‘the best ideas will win out’, only have merit in the abstract, and come from a place of privilege.

No reasonable reading of American or world history bears these assumptions out.

Hate speech is always harmful, as Prof. Frederick Schauer explicates in his article The Sociology of the Hate Speech Debate, published in the Villanova Law Review:

I do not believe that we protect speech because it is harmless, or even because its harms, individually or in the aggregate, are smaller than the harms caused by non-speech conduct.23 Rather, existing free speech principles are based on protecting speech despite the harm it may cause. My aim here is not to explain why this is so. Rather, it is merely to point out that insofar as widely believed free speech rationales (whether sound or not) do in fact focus on harmlessness (and note here the frequency with which the harmlessness claim is cloaked in "speech is the symptom and not the cause" language), then those who rely on such rationales are open to the claim that because this speech is harmful then it may be regulated consistent with an existing understanding of the First Amendment. Thus, when those who are injured by hate speech call attention to that injury, and challenge those who deny the injury (usually by using the term "offense," the word most commonly employed by those who want to trivialize what someone else claims is a harm),2 4 the step from the injury to regulation is one that paradoxically has been created by much of the free speech culture itself… (pg. 805)

The process of normalization of bigotry, for example, allows it to flourish, thus leading to more hate speech that is not recognized as such, and to overtly violent and destructive acts. Each time hate speech is promoted, it both a) injures people, and b) contributes to the culture in which bigotry is reified as the norm:

Even the broadest of the proposed hate speech regulations, however, is spectacularly under inclusive of the range of speech produced harms. Just as with, for example, the Indianapolis anti-pornography ordinance,2 9 the harms caused by communicative activities are far broader than even the broadest reach of the broadest proposed regulation. In contemplating the question of hate speech generally, or racist hate speech more specifically, we discover that the utterances of David Duke, the Willie Horton ads, the racially stereotyping discourse of sportscasters, 30 the almost total absence of non-white faces from advertising and engagement/bridal announcements in so-called mainstream newspapers and so on are constitutionally protected. Similarly, in the context of colleges and universities, the overt racial hostility of the Dartmouth Review, 31 the racially-based resentments of students who assume that all of their Latino and African American classmates are in some way unqualified, the behavior of faculty members whose classroom insensitivity is astonishing and so on is all likely outside the reach of politically plausible or constitutionally permissible regulation. Given the pervasiveness of racially marginalizing communication in society at large and also on college and university campuses, and given a historical willingness to accept it, how are its victims to call attention to the phenomenon? (pp 816-7)

Only those that live in a world of privilege and security have the luxury of claiming ‘all speech must be permitted, in all circumstances’, because they are not on the receiving end of the brutality of bigoted culture, and the speech that perpetuates it:

… the true objects of these regulations are the legions of students and faculty who, as a result of this whole controversy, are now more sensitive to the possibility that what they say may seriously impair the educational opportunities of others. Maybe, as proponents of the "anti-political-correctness" movement would have it, some of this reluctance to speak has been unfortunate. 38 But not every socially-induced refusal to speak, even on a university campus, is a bad thing, and although it is unfortunate when things that should be said are not, it is also unfortunate when things that should not be said are said. (pg. 819)

To disregard the severity of the variety of harms caused by hate speech is to minimize the suffering of those injured— itself an expression of the inherent bigotry of the society, in which the suffering of those subjected to the effects of bigotry is of no importance, or is claimed not to exist as real suffering, or real harm, at all, because it is only their perception. (This is a familiar dodge on the part of white supremacists, misogynists, religious bigots and homophobes: their hate speech has been ‘misperceived’ by its intended victims).

Profs. Katherine Gelber and Luke McNamara, writing in the journal Social Identities, dismantle the fiction that there harms of hate speech are inconsequential, or non-existent:

Evidencing the harms of hate speech

In assessing the harms of hate speech, there are two distinctions in the literature we will disaggregate for the purposes of our argument. The first is a distinction between two types of harm, and the second is between two types of hate speech events. Both are addressed in our study. The literature distinguishes between constitutive and consequential harms (Maitra &McGowan, 2012b, p. 6); namely, between harms that are occasioned in the saying of a hate speech act, and harms that occur as a result of it. The former includes the work of Langton, who has argued that ‘speech can subordinate in virtue of unfairly ranking women as inferior’,and Hornsby and McGowan who have separately shown how hate speech can silence its targets(cited in Maitra & McGowan, 2012b, pp. 7-8). Matsuda has written persuasively of individual harms including psychological distress and risk of destruction to one’s self-esteem, and social harms such as restrictions on freedom of movement and association (1993). This is consistent with findings from psychology that individuals subjected to non-physical discrimination suffer harms to their physical and mental health (Meyer, 2003; Vijleveld et. Al., 2012; Anderson,2013; Paradies et. Al., 2013; Gee, 2002; Harris et. Al., 2006; Victorian Health Promotion Foundation, 2012). Indirect effects include harms to dignity, ‘disregard for others whose lives qualitatively depend on our regard’ (Williams, 1991, p. 73), and the maintenance of power imbalances within social hierarchies of race (Allbrook, 2001; Bloch & Dreher, 2009; Dunn &Nelson, 2011). (pg. 2, emphasis added)

By listening to the accounts of those subjected to hate speech, and documenting its effects, Gelber and McNamara make plain that the damage of hate speech is all too real, and devastating:

Being racially abused on a train and in a supermarket, ‘In both incidents, I deeply felt my human right as a citizen or simply a passenger was violated.’ (13)Interviewee was told that he couldn’t be seen in the dark: ‘he was like saying that we were too black and that he couldn’t even recognize that there were people there. He could only [see] the white people in the room.’ (24b) (pg. 8)

On media commentary on who ‘qualifies’ as a ‘real’ Aboriginal person: ‘So they’re taking away the right of self-determination of Aboriginal people to define ourselves as people.’ (3)‘You didn’t want to be identified as a Vietnamese person.’ (18)‘Those women wearing hijab are targeted by young people … some women even desperately avoid wearing hijab.’ (29)‘I stopped speaking Arabic in public after the Tampa.11 Because Mr Howard stands there in parliament, “We don’t want those kinds of people”. I have been in Australia 30 years by then. And I was very, very offended.’ (33)‘Well in my workplace, and I work in a government department, I definitely never use my language or my ethnicity ... I just wanted to fit in like everyone else, because I heard a lot of the crap that was going on about Arabs and Lebanese and ... I was not one of them, I was Australian.’ (39) (pg. 8)

What is overlooked, ignored, or simply unrecognized by free speech absolutists is that when hate speech is permitted, the social environment becomes a landscape of direct, unremitting personal injury to those subjected to it:

… the harms attested to by interviewees – as experienced, perceived and feared – bear a close resemblance to the harms alleged in the literature, and are both constitutive and consequential. Consequential harms included persuading others to believe negative stereotypes, conditioning the environment such that racism is normalized and causing hearers to imitate the behaviour of hate speakers. Constitutive harms included subordination, silencing, fear, victimisation, emotional symptoms, restrictions on freedom, lowering of self-esteem, maintenance of power imbalances, and undermining of human dignity. (pg. 9, emphasis added)

To claim that the society benefits ‘as a whole’ when we tolerate hate speech, is to exclude those harmed by it from the ‘society as a whole’, and in this sense, perpetuating the very aims of those that propound bigotry.

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Free speech absolutists, in other words, are complicit in the efforts of fascists to construct a social order and legal framework that permits them to engage in terrorism, with impunity.