In a recent conversation on Facebook, I was talking about how the values and policy positions of conservatives and liberals in the United States (as those terms are used in the United States) have gotten all jumbled up. In the 1970's and '80's, when I was a kid, it was the Republicans (more generally, "conservatives") who were perceived as being stuffy and authoritarian. They were bullies who demanded conformity with their Puritanical values of hard work and the vilification of everything pleasurable. They were associated with censorship and being tough on crime. The Democrats (more generally, "liberals") were the opposite. They were the hedonistic, drug-using, free-love hippies who would champion freedom of expression even for people they disagreed with. They were always sticking their necks out for idealistic causes, and usually getting cracked over the head for it by conservatives.
Starting around the 1990's during the Clinton administration, these roles started shifting. The conservatives still believed in what the conservatives had always believed in, but now they saw themselves as the plucky, persecuted underdog. The liberals still saw themselves as champions of the marginalized, but they abandoned their principle of equality, opting instead for a double-standard straight out of Animal Farm that said some people were more entitled to equality than others. Whereas the liberals of my youth would say that even neo-Nazis were entitled to free speech, the new ones are very selective about which people they see as worthy of having rights and legal protections. It used to be that the Republicans were racist and the Democrats promoted colorblindness. Now the Republicans preach colorblindness and Democrats favor doling out privileges by race and separating school children into "affinity groups."
Along with this jumbling of value, the two sides also adopted each other's tactics. The liberal "cancel culture" of everyone who doesn't toe their ideological line is nothing but their own rehash of earlier conservatives' "black listing" of suspected communists and others accused of "un-American" activities. Conservatives, on the other hand, have adopted the weaponization of victimhood, first promoted by liberals as "non-violence" and made famous by Gandhi and Martin Luther King, Jr. It's not that today's conservatives are pacifists--they bring rifles to protests. But they understand the mechanics underlying victory through non-violence: you appeal to a mass audience and depict your opponent as a ruthless bully who has abused you mercilessly and unfairly. You appeal to their sympathies by exercising hypo-agency, making yourself seem helpless against the overwhelming power of your opponent, the Big Bad Meanie. That used to just be a liberal tactic. We know it from the Civil Rights Movement, where calm, very reasonable-sounding people would passively walk or sit while red-faced, enraged police would attack them in front of news cameras.
I saw a comic strip today where a conservative was employing this strategy. I won't share it here, but it presented itself as being helpful advice to flashers who want to expose themselves indecently. First it showed the "don't" method. A man in a trenchcoat opened it, exposing himself to a horrified woman and child. The woman called him a pervert. In the next frame, it showed a police mugshot of him holding a sign saying that he was charged with indecent exposure. Then it showed what it said was the proper way. The same man, now naked except for a Pride flag draped over his shoulders, exposed himself again to the same horrified woman and child. Once again, she called him a pervert. But this time, in the final frame, it showed her in the police mugshot, holding a sign saying she was charged with hate speech and homophobia.
Conservatives find this a compelling narrative. It's red meat for people who feel unable to express their disgust and hatred without suffering consequences. But do those consequences actually include criminal prosecution? In the United States? I've heard about people getting (usually light) criminal sentences in the UK and Canada for what amounts to politically incorrect speech. To an American, it's alarming to see how frequently Britons are punished for things they share online that wouldn't even raise an eyebrow here. I thought, then, that this cartoon was a lot of pearl-clutching over nothing.
And this is a topic I thought I knew something about. I used to be a university police officer, and when I went through the police academy in 1997, there was a newly added section about hate crimes. At the time (and my understanding was that that's still the case), all a "hate crime" consisted of was something that was already a normal crime, but the sentence was more severe if there was evidence that the victim was targeted for being a member of certain protected classes of people. So, for example, it was already illegal to beat up a person, but if you beat up that person because of their race or religion, you'd get additional penalties tacked on to the normal penalties. That's all a "hate crime" was in the United States, at least in Ohio in 1997.
It's also worth noting that--again, at least in 1997--LGBT folks were not one of the protected classes in Ohio. When we each had to pick a research topic for this section and make a presentation to the class, I chose this exclusion and used my presentation to call out the homophobic insensitivity I had observed within the class from both students and instructors. My wife at that time was bisexual, and I had other friends and family members who were gay, bi, or trans, so I was keenly sensitive to the fact that the law offered them no special protection. Under state law, at least, they could even be fired from their jobs or denied rental housing on the basis of their sexual orientation.
While working as a campus police officer, I kept up on intelligence on hate groups, relying largely on the ADL (the Jewish Anti-Defamation League) for information about white supremacist groups in the United States. If I saw posters around campus that were clearly meant to intimidate a group of people, I took it down and wrote an incident report. If I saw posters or other literature meant to incite hatred of a group based on their race, ethnicity, national origin, or religion, it wasn't a crime, so I didn't remove it, but I still made a note of it and built a body of evidence in the event that we needed to prosecute one of these hate groups for a crime in the future. And as far as I'm aware, I was the only cop in our department doing this. There might have been one or two others. Notably, both of those two were liberal, gay, and women. I was the only straight, white guy in the department who bothered taking any action against these hate groups. Even before I'd attended the police academy, I was involved in the struggle of neo-pagan religions to get proper acknowledgment from the government to be protected from persecution by police and legislators.
But I know that things change, and the information I had might have become outdated, so after seeing that cartoon, I wondered what the Ohio Revised Code actually has to say today about hate crimes. Can a person be criminally charged just for saying something someone else doesn't like when the "victim" is a member of a protected group? I Googled "ORC hate speech" and was directed to Section 2927.12 Ethnic Intimidation. Per my earlier understanding, it just adds enhanced penalties to people who commit other crimes against people based on those people's race, color, religion, or national origin. It also applied specifically to only five other crimes--namely, Aggravated Menacing, Menacing, Telecommunications Harassment, Criminal Mischief, and certain subsections of Criminal Damaging or Endangering.
I read these sections, and I was disturbed by something I saw there, which prompted me to write this. Section 2917.21 Telecommunications Harassment, subsection B, paragraph 2, says:
"No person shall knowingly post a text or audio statement or an image on an internet web site or web page for the purpose of abusing, threatening, or harassing another person."
They offer no definition of "abusing" or "harassing." That's wide open to interpretation. By my reading, that outlaws the posting on the internet of every political cartoon or any criticism--legitimate or not--of any individual who claims to feel "abused" by it. If so, that puts us into the realm of UK libel law. In the US, for an accusation of libel or slander to be sustained, it must be proved that the statement was both injurious and untrue. In the UK, it only has to be injurious, and they don't care that it was true. So if, for example, you're a daycare worker who's accused of molesting little kids, and I get on the internet and say, "Don't take your kids to this person's daycare. They're accused of molesting little kids," you could sue me for that in the UK and win. You could sue me for it in the US, too, but once I demonstrated that the statement was true--not that you actually molested anyone, but just that you've been accused of it--the case would be thrown out, regardless of how much money I had cost you. (There might be grounds there for "defamation of character," but let's not get too far afield with tangents.)
My point here is that in the US, you traditionally don't get into trouble for saying things that are true, whereas the standard in the UK and commonwealth countries has been based on how much damage the statement causes, regardless of the truth. As far as I know, the US is uniquely dedicated to freedom of speech in saying that there's no legal penalty for speaking the truth, even if someone else doesn't like it. People like me who make a habit of saying true things that some people find upsetting have sanctified this freedom and clung to it desperately. But now, apparently, Ohio has done away with this freedom, effectively saying that it's illegal to post something online that hurts anyone else's feelings in any way. You can still say it to their face in person (at least as far as 2917.21 is concerned), but you can't post it online. They just made this change on August 16, 2016. Prior to that, it said no such thing.
According to Ohio law, a violation of 2917.21(B)(2) is a first-degree misdemeanor on the first offense, and a fifth-degree felony on each subsequent offense. If I'm reading this correctly--and the only way I couldn't be is if there's a definition elsewhere in the ORC or a court precedence that defines "abuse" in some way that excludes shitposting on the internet--pretty much 80% of social media users (if not more) in Ohio are felons. We're way beyond someone calling for death to this-or-that ethnic group. If you write some true statement about your ex that they find hurtful, you're a felon. If you write that some politician is an idiot, and they feel it's "abusive," you're a felon. (Okay, a misdemeanant if it's your first and only time.) I find this troubling.
No, I don't know of a single case of anyone ever actually having been prosecuted for this, but the fact that any one of us could be is cause for concern. So is the fact that, rather than being some archaic law that just got forgotten, this is something our elected lawmakers purposely added to the law a little less than eight years ago. Why did this happen? And does it actually mean what it appears to mean? Is this simply a case that some bumble-mouthed legislator wrote something more expansive than he meant, and a bunch of inattentive legislators and the Governor signed on without reading it thoroughly? (That happens disturbingly often.) Has this come up in the courts at any point in the past eight years? What was the outcome? Maybe we have a reader better versed in the law who can comment and clear up these questions.
