I

t is no wonder that hate speech has clawed up the global agenda in recent years. Each extreme new case is a double shock: we recoil at the brutality being expressed; and we are shocked by the fact that our modern societies are still capable of such backward thinking.

After all, the 21st century began with such hope — with more nations than ever signed up for the democratic project.

Looking back, though, it is now clear that many denizens of those democracies did not read the fine print of their social contract.

If they had, they would know that popular sovereignty only works when it includes the values of tolerance and mutual respect. That’s supposed to be part of the deal. Unfortunately, some groups want to claim people-power for themselves while suppressing other groups’ legitimate desire for dignity.

These groups’ hate speech afflicts new democracies like Myanmar, where the Rohingya minority teeter on extermination, as well as the oldest ones like the US, where Donald Trump’s loutish Presidential Election campaign has polluted the country’s civic norms. Indonesia, with worrying levels of religious intolerance, is not immune.

Open societies somehow need to preserve freedom of expression while protecting vulnerable groups from hate campaigns that rob them of their equal right to live in safety and worship as they believe.

We can draw lessons from two long-running hate episodes from opposite sides of the planet. Around 2009, in the American state of Tennessee, local Muslims’ plan to build a mosque on the outskirts of Murfreesboro was vigorously opposed by rightwing bigots. Meantime, in Bogor, Indonesia, the Christian congregation of Taman Yasmin was one of several whose attempts to worship at a proper church building were fiercely resisted by hard-line Muslim groups.

The Muslims of Murfreesboro were accused of being terrorist sympathizers intent on imposing Sharia on the US. The Protestants of Bogor were alleged to be part of a grand conspiracy to Christianize Indonesia.

The misinformation was pushed by fringe groups, but their campaigns were potent enough to thwart the targeted communities’ legitimate desire to worship freely. The free marketplace of ideas allowed these lies and prejudices to flourish.

The first lesson, then, is that vulnerable minorities often need protection from hate speech — or, more precisely, expression that incites discrimination or violence by vilifying a group’s identity.

Hate speech represents a kind of market failure in the exchange of ideas. The targeted group is unable to compete on equal terms because of its small size or other historical and cultural handicaps.

As with other market failures, hate speech may require public intervention, including, sometimes, legal prohibition. This principle is enshrined in the International Covenant on Civil and Political Rights (ICCPR), which Indonesia ratified 10 years ago. Article 20 of requires states to prohibit incitement to discrimination, hostility and violence.

A second core principle, however, is that less is more — states should not overreach. They must not censor expression that only offends people’s feelings, even if it insults their deeply held beliefs.

This, too, is in line with international human rights law. Article 19 of the ICCPR protects freedom of expression. While not absolute, this right would be meaningless if it did not cover expression of ideas that offend some people. After all, if it did not outrage anyone, nobody would try to suppress it, and it would not need to be protected as a right.

This liberal free speech standard is sometimes portrayed as being at odds with respect for religion. This is not necessarily true. Banning religious offense can penalize religious groups as much as anyone else.

Laws against insult — like Indonesia’s blasphemy legislation or India’s statute against wounding religious feelings — invariably backfire. They get weaponized by hard-line groups that deliberately take offence at books, videos and places of worship, and then demand the laws against offence be enforced.

Thus, the coercive capacity of the state gets hijacked by the most intolerant groups. Instead of promoting respect for diversity, these laws encourage competing radical groups to express more and more outrage at anything that is too different for their liking, as a political strategy to trigger legal action against their opponents. The most reasonable religious groups are sidelined by this dynamic, even though their peaceful self-restraint when provoked by offence is exactly what society should incentivise.

Numerous human rights monitors have observed that Indonesia’s blasphemy law has had this effect, emboldening hard-line groups at the expense of religious minorities such as church-less Christian congregations as well as Muslim sects such as the Ahmadiyah.

My third point returns us to that story of the American mosque and the Indonesian church. It has a paradoxical conclusion.

The US Constitution’s strong free speech guarantees meant that the Muslims in Tennessee had virtually no insulation against hate propaganda. Yet, today, their Islamic center is up and running. They congregate in the modern and comfortable green-domed building for Friday prayers, religious classes and other gatherings.

This paradox is explained by the fact that although the US government is laissez faire about public discourse, it is highly interventionist in protecting religious equality. No matter how stridently local public opinion opposed the mosque, American courts were always going to stand by Muslims’ right to practice their faith. As the imam of the mosque told me simply when I visited Murfreesboro, “The Constitution was on our side.”

Meanwhile, the Yasmin Christian congregation is still waiting for local authorities to allow them to build their church. As The Jakarta Post has reported, they regularly worship in the open air at the National Monument Park, together with members of the Filadelfia church from Bekasi.

Indonesia has stricter laws than the US against both incitement and offense. But this hasn’t provided minorities with meaningful protection against intolerance. Indonesia’s Supreme Court has ruled in favor of the Yasmin and Filadelfia churches, but the government has so far failed to enforce the judgment.

Perhaps the lesson here is that, while we should take hate speech seriously, actions ultimately speak louder than words.

Unfortunately, many states are too eager to restrict questionable speech, and much too negligent in policing flagrantly discriminatory acts. We won’t get rid of intolerant groups that defame communities that are different. But we can insist that governments protect the substantive equality that citizens of a democracy have a right to expect.
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The writer is the author of Hate Spin: The Manufacture of Religious Offense and its Threat to Democracy (MIT Press), a study of religious right-wing intolerance in Indonesia, India and the US. He is based at Hong Kong Baptist University, where he is an associate professor of journalism. An earlier version of this article was published on opendemocracy.net