When Hate Speech Laws Turn on Their Creators
One of the oldest lessons in political philosophy is that governments should be cautious when granting themselves new powers. The temptation is always to believe that such powers will be exercised only against one's political opponents. History repeatedly shows otherwise. Once a legal mechanism exists, it can eventually be used against almost anyone.
Scotland's hate speech legislation illustrates this danger. A human rights lawyer associated with former First Minister Nicola Sturgeon has reportedly been referred to Police Scotland after describing critics of immigration as "terrorists." Whether the complaint ultimately succeeds is almost beside the point. The irony lies in the fact that legislation promoted as a tool against one form of harmful expression is now being invoked against someone widely associated with supporting stronger regulation of speech.
This is not because the law has necessarily failed. Rather, it demonstrates an inherent problem with laws regulating expression. Once governments move beyond prohibiting direct threats, incitement to violence or criminal harassment and begin policing words that are alleged to stir hatred or cause offence, interpretation becomes increasingly subjective. Political activists, campaign groups and ordinary citizens naturally begin asking whether language used by their opponents also falls within the law's scope.
The result is predictable. Instead of reducing conflict, such laws may generate more complaints, more investigations and greater politicisation of the legal system. Police officers increasingly find themselves acting as arbiters of political language rather than concentrating on conventional crime. Even before this latest controversy, Scotland's hate crime legislation attracted criticism from legal commentators who warned that it could generate large numbers of complaints and place additional demands on policing.
The deeper issue concerns equality before the law. If calling one political group dangerous, hateful or extremist is potentially unlawful, then the same standards must logically apply regardless of who is speaking or which side of politics they represent. Governments cannot credibly argue that inflammatory language is unacceptable only when used by their opponents while treating comparable rhetoric from their own supporters as protected expression.
This illustrates what might be called the "boomerang effect" of speech regulation. Powers introduced with one target in mind often expand beyond their original purpose. Those who applauded restrictions when they affected ideological rivals may later discover that identical legal principles are being applied to their own words.
None of this means that genuinely threatening or criminal behaviour should go unpunished. Democracies have long recognised offences involving intimidation, harassment, incitement to violence and conspiracy. The question is whether increasingly broad and subjective categories of prohibited speech improve society or simply invite endless disputes over where the line should be drawn.
Perhaps the greatest irony is that hate speech laws sometimes achieve exactly the opposite of what their advocates intended. Rather than ending political controversy, they shift the controversy into police stations, courtrooms and legal complaints. Instead of encouraging tolerance, they encourage competing groups to weaponise the law against one another.
That is why defenders of free expression have traditionally argued that the best long-term safeguard is a high threshold for criminalising speech. A society confident in its ideas should ordinarily answer offensive opinions with better arguments, public criticism or peaceful protest, reserving the criminal law for conduct that genuinely threatens the rights and safety of others. The Scottish episode serves as another reminder that legal powers created for today's political adversaries may become tomorrow's problem for those who first championed them.
