The highest court of Mexico has just convicted former Mexican Congressman Rodrigo Iván Cortés, of “gender-based political violence,” “symbolic violence,” “psychological violence,” and “sexual violence” for social media posts referring to Mexican Congressional representative, Salma Luévano, a biological male who has embraced a female identity, as a “man who self-ascribes as a woman.”
As reported by ADF International (Alliance Defending Freedom) , Mr Iván Cortés has been ordered to pay a fine to the tune of around 1,000 euros, and to publish an apology drafted by the court on social media. It would appear that being exposed to unwelcome opinions on Twitter, or hearing someone question one’s chosen gender “identity,” is now considered by Mexican’s highest court as suffering an illegal act of “violence.”
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And lest we think that this was the handiwork of a Kangaroo Court in a part of the world far removed from “progressive Europe,” we need look no further than Finland to find a similar case: Finnish parliamentarian Dr Päivi Räsänen was prosecuted for tweeting a quote from the Bible affirming the Christian view of marriage and condemning homosexual relations as immoral, in response to her church’s decision to take part in a “pride” event. She was charged with “inciting (hatred) against sexual minorities,” a charge that carried a jail sentence of up to two years. Räsänen was acquitted by a panel of three judges in 2022, but the prosecution is now appealing the judgment.
One need not share the view of Iván Cortés on transgender identity, or of Räsänen on sexuality, to understand the grave threat these sorts of precedents pose to a free society. If the criminal law can be used to criminalise some political opinions while giving free reign to others (it is notable, for example, that conservatives and Christians are rarely protected in hate speech cases), then it is hard to see the criminal law as anything other than an instrument of political domination designed to silence voices that happen to be disfavoured by activists, legislators or prosecutors.
And if the criminal law can be used to shield transgender identity and sexual behaviour from public criticism, there is no principled reason it should not also be used to silence public criticism of political conservatism, church dogma, climate policy, or whatever else the ruling elite see as untouchable. The criminalisation of speech, without a very clear and compelling public order rationale, leads us down a very dark path, putting us in the company of the ugliest forms of totalitarian ideology, which cannot abide to be contradicted or questioned in public.
Thankfully, there is a silver lining in the cloud for the United States. There – at least for the time being – citizens are protected from government-imposed hate speech laws by the First Amendment, which stipulates that “Congress shall make no law…abridging the freedom of speech, or of the press,” a stipulation that also applies to each individual State government. As long as this article of the constitution is rigorously enforced, hate speech rules can only be imposed by private institutions in the United States. That is small consolation to someone who is suspended from Youtube for uttering uncomfortable truths, but it is better than nothing.
In Europe, by contrast, we do not have a constitutionally enshrined free speech culture as strong as that of the United States, so both governments and private institutions may capitulate to ever shriller demands of leftist lobbies to censor and sanction anyone who dares question any of their favourite causes. Under these circumstances, it is perhaps an opportune moment to recall why criminalising speech is a terrible idea, that should have no place in a free society.
So here are five considerations telling strongly against the criminalisation of political and scientific speech:
1. Criminalising speech will not improve social mores – indeed, it is likely to corrupt them. Sometimes, advocates of hate speech claim they want to promote a more tolerant or respectful society. But criminalising bad thoughts or sentiments will only drive them underground, and if anything, feed resentment and hatred by creating one set of rules for the politically correct, and another for those who question political orthodoxy. The rebound effect can be powerful. Law is a crude instrument, not designed to micromanage complex social problems.
2. The notion of a speech crime converts the law into a partisan instrument of political ideology. The harm inflicted by offensive speech – setting aside clear-cut cases like shouting “fire” in a movie theatre or publicly advocating violence against other citizens - is extremely subjective and often comes down to people’s political leanings. A leftist will tend to view conservative opinions as harmful to individuals; a conservative may view leftist opinions as harmful to the common good.
3. The incredible vagueness of the notion of a speech crime is a handy tool for wanna-be despots. For example, the notoriously vague notion of a “hate crime” will inevitably be used to prosecute citizens who do not share the political opinions of the prosecutor or judge. A case in point: recently, a Mexican was convicted for “digital hatred” and “political violence” for insisting that a biologically male trans individual was a man. This is clearly a case of prosecuting someone because they state a political opinion at odds with the politics of a judge or prosecutor.
4. Speech crimes corrupt our legal system by removing certainty from the law. Because there is no well-defined or publicly agreed meaning to such crimes – because they are so vague – they remove certainty from the law. The properties of speech crimes are so vague and subjective that you might as well toss a coin or consult the politics of the prosecutor in order to ascertain whether you are likely to be prosecuted or convicted for a hate crime.
5. Speech crimes have a dampening effect on political speech. With hate speech laws on the statue books, citizens will refrain from speaking their mind publicly on issues they believe prosecutors or judges will frown upon, for fear of being fined or jailed. So the criminalisation of speech deals a severe blow to freedom of speech, one of the pillars of a democratic society.
The battle for free speech is a battle for the minds and hearts of citizens. If we fight this battle exclusively in the legal domain, without engaging with the culture and helping each new generation of citizens internalise the value of freedom of speech, we should not be surprised if the law is superseded by an illiberal or authoritarian culture.
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Very well said. Thanks.
This is the same problem that destroyed the Roman Empire break down of the Family Unit and No Morals Goodbye Mexico and USA and the rest of this World just kiss goodbye to Right and Wrong and Truth for the Lie!