Some speech is offensive to others. Speech may be offensive in one of two ways. It may be subjectively offensive or objectively offensive. If we take offense to mean indignation, then this refers to speech that causes anger. Now anger is a desire for justice against someone who has slighted us unjustly. Objectively offensive speech is speech that causes anger when the offense is actually unjust. Subjectively offensive speech is that speech causing anger regardless of whether or not that anger is actually justified. Laws against offensive speech fail to accomplish their objective.
Subjectively offensive speech may hurt someone’s feelings, but there is no harm done to the person because of it unless that speech is also objectively offensive. It does have a number of advantages though. It is very easy to determine whether or not someone is very angry. If they say that they are angry because of some speech, then that is usually obvious as well. But although it is easy to pick out offenders, these offenders are not guilty of doing anything wrong.
Objectively offensive speech does cause harm to people. There are a number of forms of this speech. The first is telling falsehoods or lies about people. This has a remedy in the law already. The second are insults, invective, commands, wishes and desires that degrade a person. If they were restated as an opinion, then they would be false, but they are not stated in the form of an opinion. If these lead to violence on the part of the person degraded, then the person will have a reduction in their sentence. So the law already recognizes that these are not protected forms of speech. The remainder of offensive speech are those instances are not respectful of others. So failing to listen, failing to try and understand others or their positions, or failing to respect the experiences or feelings of other people are all objectively offensive. This is not protected under the law in any sense.
It is this final category of speech that hate speech laws attempt to govern. An act may be unjust, but this is not by itself a reason for that act to controlled by government (or controlled by anyone other than the individual). In this case, determining whether or not someone is not being respected is extremely difficult. What may be disrespect in one circumstances may not be in another, and what may be for one person may not be for another. In fact, it may require a detailed knowledge of each individual’s personal history and interaction with each other in order to determine whether or not any lack of respect has occurred. Not only this, but the government is unable to offer any remedy for this problem. Fines, jails and court orders do not encourage anyone to respect another person. Nor do they set right what the offense made wrong.
In addition to these problems, laws against offensive speech can end up targeting speech that is subjectively offensive or punishing people far beyond what is reasonable. This encourages people to ignore those from other cultures, those having different opinions on issues of passionate belief and those who are easily offended. This divides society, radicalizes society and encourages all of the abuses the law was designed to prevent.
Given these things, other options should be considered. Next, I will discuss solutions for offensive speech that do not involve laws against that speech.