Hey, liberals: Criminalizing hate speech will inevitably backfire

Hate speech. Revenge porn. Taking upskirt photos of women in public. We have named the problems, and now we shall criminalize them.

Who wants to condone bigotry, peeping Toms, or sharing someone's private photos without consent? I definitely don't. Right-thinking people don't, right? But this is where we run into trouble.

Feeling culturally and politically dominant — same-sex couples are marrying, Beyonce <3s feminism, "yes means yes," and cis means check your privilege — many liberals are all too happy to overlook constitutional concerns in the rush to "solve" social problems by government fiat.

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They've embraced new laws: Criminalizing what's come to be called "revenge porn" (jilted lovers sharing private, sexualized photos of an ex on the internet) and the taking of furtive photos under women's clothes in public. Yes, deterring these actions and ensuring people's privacy is certainly a worthy goal. But the particular policies liberals have endorsed tend to take a sledgehammer to the problem, as my colleague Jacob Sullum put it. Inevitably some First Amendment freedoms get smashed too.

The people who challenge these laws aren't cabals of pervs and misogynists but organizations like the American Civil Liberties Union (ACLU) and the National Press Photographers Association. A statute recently struck down by a court in Texas is a perfect example of why they're concerned. Meant to criminalize upskirt photos, the law made it an offense to photograph, film, or record "a visual image of another" in a public space "with intent to arouse or gratify the sexual desire of any person." The court thought the law was overly broad and "could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street."

The court's decision was widely panned by leftist media, who portrayed it as ruling that upskirt photos and associated creepshots were protected under the First Amendment. But the court explicitly said the opposite, granting that "substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt," and laws directly banning these things likely wouldn't run afoul of the First Amendment. Texas could have a law against upskirt photos; it just couldn't have this particular one.

In general, lawmakers are compelled to "narrowly tailor" laws to serve state interests while limiting as much as possible coercion and restrictions to freedom. When they fail to do so, courts are compelled to reject these laws and send lawmakers back to the proverbial drawing board. This is a feature of the system, designed to protect us from both overzealous, power-hungry lawmakers and well-intentioned lawmakers who craft overly-broad laws that are ripe for abuse.

Hate speech codes and hate crime statutes have also become popular to postmodern liberals, though these are especially ripe for exploitation at the whims of whoever wields power. The theory behind the laws is that an accused's motivation matters deeply — defacing private property with a spray-paint mustache is a crime, but defacing private property with a spray-paint swastika is a hate crime. Critiquing Hamas' actions is simply speech, but critiquing Hamas' actions because you dislike Islam is hate speech. Threatening to kill someone is bad, but threatening to kill them because they're gay is extra bad.

Even if you grant that bigotry-based crimes are more morally heinous than crimes of greed or passion, there's simply no room for such subjective distinctions in our jurisprudence. Already, hate speech codes and crime laws are being used against people espousing what many would think of as liberal (and non-hateful) ideas. A graffiti artist in Brooklyn was arrested on hate crime charges because her message criticized the New York Police Department. Professor Steven Salaita had a tenured job offer at the University of Illinois Urbana-Champaign rescinded after donors found his criticism of Israel to be a form of hate speech. What constitutes "hate" and who deserves special protections from it will always turn on the particular sensibilities of those making the call.

The shortsightedness with which the social-justice left embraces hate speech laws and other restrictions on free expression can only be chalked up to an extreme hubris, a belief that not only are they on the right side of history culturally and morally but that politically, things will never change either. Which seems unlikely. Ten years ago Karl Rove envisioned — and people (my young self included) legitimately feared — a "permanent Republican majority" built largely on socially-conservative concerns like opposition to same-sex marriage. LOL. Now even Michele Bachmann finds fighting marriage equality "boring" and the most compelling conservative candidate is the one calling for criminal justice reform instead of "traditional marriage."

Some see the takeaway here as progressivism having "won." But I think it's more realistically illustrative of the fickle nature of public opinion and party platforms. No, I don't see U.S. society going backward on things like gay rights. But look at the anti-abortion movement. Feminists thought they had abortion access locked in — and in fact, the country continues to trend in favor of abortion rights — but a loud, persistent, and passionate anti-abortion minority has managed to get more laws restricting abortion passed in the past few years than in the decades before.

When you're winning the culture wars, it tends to radicalize and mobilize the opposition. Even if U.S. society as a whole continues to become more liberal or libertarian, we'll still face folks who believe in the need for more authoritarianism, less gender equality, and less tolerance. Some of them will inevitably go into politics, law enforcement, and education. Some will become legislators. Prosecutors. Judges. City council members. School administrators. Police officers. Professors. And some will inevitably have wildly different conceptions of what constitutes "hate" or "obscenity" or "civility" than you or I may.

Liberals push for broad speech laws as if they only can and will be used as intended, but that's not how it works — political and cultural opponents will wield them for their own purposes. Individual cops, bureaucrats, judges will have very large discretion in enforcing them. It's not just a formal deference or fetishistic attachment to the Constitution that leads libertarians to push for very narrowly-written and interpreted speech restrictions. It's because this framework provides a means for free speech to be meaningful without regard to fickle cultural norms or prevailing political power.