None but the most extreme will argue that intolerance and censorship are good things in themselves. Normally the preferred course is more subtle. Instead of openly arresting people who say the wrong things, the new purveyors of intolerance try to sublimate their prohibitions on speech, expression and thought into more popularly accepted channels. Something must be done to make these prohibitions more palatable because there is still a great deal of respect in Malta for freedom of thought, speech and expression.

A prime example of parsing good speech from bad is the notorious notion of “hate speech”, which involves designating certain kinds of remarks, gestures, expressions and writings as intentionally hateful and thus worthy of regulation and even criminalisation. Attempts to prohibit hate speech and hate crimes have been around for quite some time now in our country. Appropriate efforts to condemn symbolic acts of violence have expanded over the years to include all sorts of alleged speech and thought crimes. Today a public statement against illegal immigration or same-sex marriage can be labelled hate speech.

Proponents of hate speech restrictions have never given up locally. The movement has grown in recent years, particularly as the values and ideologies of identity politics became acceptable to more Maltese. There are two types of threatening or defamatory speech that can potentially be restricted by the law. One is any speech, gesture or conduct that is intended to incite and is likely to incite, imminent lawless action such as violence. The second includes certain classes of speech, such as obscenity and libellous words, which can be limited. Criminal intent has always mattered in determining if a crime was premeditated. All this started to change with the rise of radical multiculturalism. Under its influence, the ideas of hate speech and hate crimes were invented. Instead of worrying about the violent intent of individuals, hate speech advocates wanted to ban utterances, gestures, conduct or writings that they deemed prejudicial against a protected individual or group. We have been seeing this in Malta too.

All Western European countries have hate speech laws. In 2008, the EU adopted a framework decision on “Combating racism and xenophobia” that obliged all member states to criminalise certain forms of hate speech. On the other side of the Atlantic, the Supreme Court of the United States has gradually increased and consolidated the protection of hate speech under the First Amendment. The European concept of freedom of expression thus prohibits certain content and viewpoints, whereas, with certain exceptions, the American concept is generally concerned solely with direct incitement likely to result in overt acts of lawlessness as happened recently with respect to the Capitol Hill incidents provoked by Trump supporters. Malta extended its hate crime and hate speech provisions to cover the grounds of sexual orientation and gender identity through a number of criminal law amendments that set out the increase of punishment and severity of the offence for bias-motivated crime. Changes were also affected to Article 6 of the Press Act to regulate hate speech. Provisions for the grounds of gender expression and sex characteristics were introduced through the Gender Identity, Gender Expression and Sex Characteristics Act of 2015. Furthermore, in 2018, the National Police System was amended to facilitate the capture and reporting of hate crimes when such incidents are reported.

Yet the origin of hate speech laws has been largely forgotten. The divergence between the United States and European countries is of comparatively recent origin. In fact, the United States and the vast majority of European (and Western) states were originally opposed to the internationalisation of hate speech laws. European states and the US shared the view that human rights should protect rather than limit freedom of expression. Ironically, the introduction of hate speech prohibitions into international law was championed in its heyday by the Soviet Union and its allies. Their motive was readily apparent. The communist countries sought to exploit such laws to limit free speech. Clearly, most proponents of hate speech laws do not share the same ideologies and methods as antidemocratic states. Respect for freedom of expression is the hallmark of free societies and the first right to be circumscribed by illiberal states. It is a sad reflection on Europe that the increasing emphasis on criminalising words that wound, offend or hurt is the brainchild of the very totalitarian states with which Western European states were locked in an ideological battle during the Cold War.

There is a lot of confusion making the rounds about the distinction between incitement and hate speech. One could turn to analysing the speech itself, or to the assumed impact on the victim(s) or on human dignity in itself, and possibly on the impact on others. One could simply distinguish between the terms of “incitement” and “hate speech” in terms not of the gravity of the speech but its effects. Incitement in all of its forms is often confused with other types of inflammatory, hateful or offensive speech. Incitement can be distinguished from these broader categories of speech, however, with reference to the intended or actual effects of speech. When inflammatory speech inspires one audience to harm another person or group, that is successful incitement. Any acts of hate speech that are aimed directly at the victim group do not have such effects and therefore do not constitute incitement. Taking this as our point of departure, therefore, my concern is with speech that is aimed at the victim(s) and which has not had the effect of inspiring its audience to harm the victim(s) concerned.

The growing incidence of hate speech and hate crimes in our little country warrants measures being taken against any dissemination of ideas of caste superiority and inferiority or which attempt to justify violence, hatred or discrimination against any individual or group of individuals. Hate speech is worse than discriminatory speech. Hate speech’s use of traditional epithets or symbols of derision to vilify on the basis of group membership expresses contempt for its targets and seems more likely to cause emotional distress and to provoke visceral, rather than articulate, response.

Dr Mark Said is an advocate