Monday, December 29, 2014

Does Korea need laws against hate crimes and hate speech?

Recently, a teenager exploded a homemade acid bomb during a talk show that was held by Shin Eun-mi and Hwang Sun for making pro-North Korean remarks.

In a different case, when a grieving father was going on a hunger strike to protest for an independent investigation to determine what caused the sinking of the Sewol that took his child's life, Ilbe members staged a “binge-eating” counter-protest a walking distance away from the man because they thought that he was being used by progressive lawmakers to destabilize the conservative government.

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According to a Professor Choung Wan, from Kyung Hee University Law School, who was quoted by Claire Lee in the Korea Herald for this article, the former was a terror attack and an act of hate crime whereas the latter was a hate crime that was also an act of violence and discrimination.

In regards to the latter, Professor Choung said, “Expressing your opinion is one thing, but if you are hurting others in the process, it’s called violence and discrimination.”

Hate crimes and hate speech often get lumped together, but I think it is important to distinguish the two. For one, the former is an act that is committed against another individual that violates his right to life, liberty, property, and the pursuit of happiness. On the other hand, the latter is simply a form of speech – though admittedly one of the more vile types.

As such, I thought that it'd be best if I wrote about the two topics separately.

Hate Crimes

As I read what Professor Choung had to say about the matter, I could not help but have some additional thoughts of my own.

Firstly, I had to wonder if Professor Choung thinks it is acceptable to have a government that passes laws that attempt to regulate the content of people's thoughts. A little Big Brother-ish, if you ask me.

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Secondly, even if Professor Choung does think it is acceptable to have such laws, his personal opinion is made irrelevant by the fact that such laws are doomed to fail. Case in point, lawmakers can pass all the laws they want to make people think that prostitution is immoral. None of it will change the fact that prostitution will always remain the world's oldest profession, and theirs the second-oldest; and not by much!

Thirdly, with the exception of those stories that involved the severely mentally ill, I do not recall reading about any crime that was committed against another person out of love. In fact, most criminals either hold indifference or contempt for their victims. Doesn't that mean that almost all crimes are hate crimes? Furthermore, wouldn't that mean that designating some crimes as “hate crimes” but others as not mean that some crimes will be more punitively punished than others for no other reason than some people's arbitrary perceptions of hate?

Furthermore, though it is true that intent matters when a crime is committed, I do not see how designating a crime as being “hateful” does more than the current existing judicial system. For instance, let's say that a man has planned to murder his child in order to collect insurance benefits, and he succeeds in his grisly act. Now let's say there is a second man who planned to murder his child because the child is not his – the child is his wife's whom she had from a prior marriage – and an interracial one at that to boot. This second man despises the child for not being his and for being “a racial abomination.” The second man also succeeds in his grisly act.

In either scenario, would the child be any less or more dead? Would either act be any less or more premeditated?

Yes, intent matters but that is already handled by the justice system.

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Introducing “hate crime” into the justice system does several things:

  • It will attempt to regulate the content of people's thoughts, and will effectively criminalize unpopular thoughts.
  • It will arbitrarily make some laws and crimes worse than others. Though laws can never be completely objective, it is paramount to keep it as objective as possible.
  • It will potentially punitively punish people more than they deserve to be punished. The law is supposed to dispense justice; not revenge. Proportionality is key.
  • It will serve as a redundant law that does nothing that the current legal system does not already do besides serving a political purpose.

What it will NOT do is actually succeed in reducing crimes.

Hate Speech (Part 1)

It's worth repeating that Professor Choung said, “Expressing your opinion is one thing, but if you are hurting others in the process, it’s called violence and discrimination.”

Let's take an example. Let's say there is a man who thinks that all Koreans are an inferior race that ought to be exterminated. Let's also say that this man is very vocal about that belief. However, he does not act upon it, and simply tells whoever is willing to listen that all Koreans should be killed.

Such a man would certainly be considered obnoxious, among other things, but can anyone objectively prove that he has hurt others by speaking his mind? Of course the things that he says could hurt some people's feelings, but hurt feelings are very difficult to quantify. Some people might get into a fit of rage, others might be saddened, while others might not even care.

I doubt that even Einstein can quantify that
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Now if it can be proven that the man incited violence through his words, itself no easy task, then we would be talking about a very different subject. However, like the intent behind the committing of a crime, the incitement of violence is already something that the legal system deals with. The current legal system does not need any further reinforcement from hate speech laws.

Going back to Ilbe's “binge-eating” protest, there is no argument whatsoever that it was done in very bad taste. No one with a properly functioning brain could possibly see that as civilized behavior. But did they actually cause harm to others? I am sure that the grieving father, who has my deepest sympathies, suffered emotional distress. And there are certainly existing laws that deal with that, too. Provided that there is a clever enough lawyer under his employ, I am sure that the man could claim for some damages. However, the man would have been able to do the same had the counter-protesters been members of a French mime troupe who were miming people drowning.

But the important question is whether or not the “binge-eating” counter-protest was an act of violence. Did the act, as atrocious as it was, threaten the man's common rights or civil rights or civil liberties? Did he have to fear for his life or safety? Unless such a case can be made, it is quite farfetched to claim that the counter-protest was an act of violence.

As for Professor Choung's claim that expressing opinions that hurt others is a form of discrimination, I cannot even begin to comprehend how Professor Choung came to that conclusion.

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Hate Speech (Part 2)

Freedom of speech is one of the most important bedrocks of a democratic republic. It is based on the belief that each individual is his own sovereign, and, therefore, has the fundamental right to hold any thought that he deems worthy – even if that thought seems despicable to everyone else in the world. By extension, being prosecuted and/or persecuted for no other reason than for expressing that thought is a violation of that sovereignty.

The fact of the matter is that when people defend the right to free speech, no one ever defends Thomas Jefferson or Nelson Mandela. That is because neither Jefferson nor Mandela needs to be defended. The words that they left behind have moved others to the point that they themselves moved mountains. If humanity ever becomes extinct and we are to be discovered by archaeologists of another species in the future, I greatly hope that they will remember us as the species that produced Jefferson and Mandela, rather than as the species that produced “2 Girls 1 Cup.”

No, we do not need to defend Jefferson or Mandela. What we do need to defend are the dregs – those most offensive and disagreeable. To quote none other than Larry Flynt:

If the First Amendment will protect a scumbag like me, then it will protect all of you. Because I'm the worst.”

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All over the world, from college campuses to parliaments to anonymous internet forums, more and more people seem to be forgetting just how important free speech is. Many people are all too willing to add a caveat here or a qualification there to say “Hey, I believe in freedom of speech, too, but you can’t say that.”

What many people who accept such a thought hardly ever seem to consider is that the that they consider unacceptable can always change in the future, and not in a way that they might necessarily approve of.

Criminalizing certain actions in order to protect the rights of others is one thing. Criminalizing thought is an entirely different thing that is not only doomed to fail, but also anathema to the principles on which a free society must be based.

Combating Prejudice

What I found most telling about Professor Choung's view of the world was when he reportedly said:

“And there is no ‘natural’ way of combating prejudice. For many, it does not go away ‘naturally.’ That is why we need to regulate hate speech. Seemingly innocuous prejudice may snowball into more pernicious forms (when expressed and shared by many), and result in dangerous consequences.”

Is there truly no “natural” way to combat prejudice? For those who believe that, then by necessity, they must believe that racism in America only began to be combated in 1964 when the Civil Rights Act was passed. Never mind that anti-racist movements can be traced back to the Renaissance. Furthermore, can anyone offer any evidence of regulating hate speech leading to an end or decrease in prejudice?

If Professor Choung is truly afraid of innocuous prejudice snowballing into more pernicious forms when they are expressed and shared by many, wouldn't it make more sense to let people who hold such views to express their thoughts publicly so that they may compete in the free marketplace of ideas? Or does he doubt the strength of his own views that he fears they may wither in the face of binge-eating fools?

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One would hope that a legal scholar would know better than to make statements without offering evidence, and to have given serious thoughts to the unintended consequences of the laws that he proposes.


Article 21, Section 1 of the Republic of Korea Constitution says:

All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.

Section 4 says:

Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics. Should speech or the press violate the honor or rights of other persons, claims may be made for the damage resulting therefrom.

And Article 37, Section 2 says:

The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.

The law guarantees the people's right to free speech and already specifies when and how free speech might need to be curtailed. It is true that despite the existence of these laws, people's freedom of speech is not always respected. However, that is a different topic. What is important is that it is difficult enough to protect freedom of speech as it is without having to further contend with hate speech legislation.

The only other argument that those who argue for the passing and implementing of hate speech laws seems to be that other countries have already passed hate speech and hate crime laws. The Korea Herald article makes sure to point out countries like Germany, the United States, Canada, the United Kingdom, Croatia, Norway, and the Netherlands as paragons of virtue for having passed their hate speech and hate crime laws.

I don't understand how anyone could think that such an argument is convincing or deep.

Engaging in acts that are racist or sexist or any other motive based on hate is ugly. But color me unconvinced and unimpressed when people make baseless claims about the dubious virtues of legislation.

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  1. I wholeheartedly agree with this article. There is one thing, though, that you did not point out in the conclusion, which, admittedly, would lead to a tangential discussion regarding defamation laws in Korea.

    Section 4 of the Korean Constitution, as quoted above includes: "Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics. Should speech or the press violate the honor or rights of other persons, claims may be made for the damage resulting therefrom."

    The inclusion of the word "honor" there disturbs me, because that is the basis of all defamation lawsuits, regardless of the veracity of said claims; if one "dishonors" someone with the inconvenient truth of their actions, it is technically unconstitutional. The "rights of citizens" are clearly set forth, but the "honor of citizens" is far too nebulous a thing to be included in a constitution, as "honor" carries with it notions of "morality", 'ethics", and quite often religion. As an outspoken atheist, many theists question the very existence of my morals, ethics, and honor, which, in my mind, invalidates the use of the term "honor" in a constitutional document. However, that may be the subject of a different article entirely.

    H/T The Marmot's Hole ( for introducing me to this blog. It is now going on my RSS feed.

    1. Thank you for the comment.

      Firstly, you're absolutely right that the word "honor" is ambiguous. So are the words "undermine," "public morals," and "social ethics." And I also agree with you that the ambiguity of those words have led to the creation and implementation of certain laws that can only be described as unjust. But as you pointed out, the topic of Korea's defamation laws deserves a separate post of its own as it is only tangentially related to hate speech laws.

      Secondly, I had no idea that I was linked at the Marmot's Hole. I am extremely excited!

      Unfortunately, I do not update my blog nearly as frequently as Robert does, but I will try to do what I can.

      Thank you very much.