Skepticlawyer

Just because we have freedom of speech doesn’t mean we get to say anything we like, wherever we like. If people don’t like swear bears (to take one example) on their property, then those swear bears will receive no further invitations to visit. This is not a constraint on freedom of speech, but the enforcement of a prior property right. Blogs operate on the same principle, hence my occasional ‘libertarian property dance’ around here.

The tricky bit comes when governments seek to constrain what may or may not be said, typically in the form of ‘hate speech’ laws. That this is not a new phenomenon is familiar to anyone with the faintest knowledge of historic blasphemy laws (present in many societies). Blasphemy laws are just political correctness for another age, and the distinction between them and modern laws that purport to prohibit or constrain ‘offence’ is so fine as to border on the indiscernible. We did well to get rid of blasphemy laws; it will be good to get rid of hate-speech and racial vilification laws, too. There is an inevitable tension between them and freedom of speech.

I suspect some of the difficulty that has emerged on this issue is to do with the very common conflation of law and morality among non-lawyers. It is important to remember that there is no necessary connection between law and morality. People forget that flinging a racist or sexist epithet at someone is immoral, while translating morality into law is hard (and sometimes impossible). Hence the almost inevitable frivolous law suits that follow once moral views on offence are enacted into law.

Some things that are immoral are against the law (eg, murder), but there are also many things that are immoral that are not against the law (adultery). By the same token, many laws have no moral content at all (think, for example, of the Highway Code), and exist merely to solve coordination problems (it does not matter which side of the road people in a given society drive on, as long as they all follow the same rule).

One of the reasons law does not trespass too frequently into the moral realm is that it is a normative system. It tells you what you ought to do. If people disagree widely about what one ought to do in given circumstances, the best response is often not to pass a law at all. This is because a law that fails brings the law itself into disrepute, and the malaise has a habit of spreading.

If many people disregard the law when it purports to control activity y, it is very common to see those same people disregard the law when it comes to activity x, even if the law against x is widely supported in the general community. The classic example is Prohibition, where so many people disregarded the law in this one area, that the US became a far more lawless and crime-ridden society as a result, including in areas where there was very little or no organised crime.

This means, where Caesar’s Writ Does Not Run, that people have to fall back on morality or informal social norms in order to establish behaviour codes, which is precisely why hate-speech laws are such a daft idea.

Much better to leave the law out of it.