Hate speech — US and Europe

Hate speech is a precursor to genocide. See Rights for Peace. https://www.rightsforpeace.org/hate-speech

Hate speech is any verbal, published or symbolic expression that offends, threatens, or insults groups  due to their race, color, religion, national origin, sexual orientation, disability, or other traits.  The concern is not just “hurting people’s feelings.” Hate speech can be dangerous, and it can lead to discrimination, bias and violence. Instances of genocide, such as in Nazi Germany, Rwanda and Bosnia / Croatia, are usually fueled by sustained mass media campaigns targeting particular kinds of people as objects of hatred.

Current US law concerning hate speech differs greatly from Europe and most of the rest of the world.   Generally, the US allows hate speech under the marketplace of ideas theory that practically all speech is protected under the First Amendment until there is “imminent lawless action.”

 There is also an underlying hope that hate speech will be discouraged by   social reactions,  and an underlying fear that if American racists, Nazis and other deplorables are suppressed, they will take on a mantle of martyrdom.

Laws in many other democratic countries punish hate speech and prohibit display and sale of the symbols of hatred.

  • In Germany, where the history of Nazis concentration camps is remembered,  inciting hatred may lead to prison terms of up to five years. The law extends to online hate speech; internet service providers have a one-week grace period to take down hateful content before large fines are imposed.
  • France gives ISPs only 24 hours to take down hate speech before criminal charges are brought. The criminal code and press laws prohibit public and private communication that is defamatory or insulting, or that incites discrimination, hatred, or violence. France also prohibits denial or minimizing of crimes against humanity such as the Holocaust.
  • Europeans take the laws seriously. A Scottish youtuber was sent to jail for two months for posting a video of a dog giving the Nazi salute and ridiculing hate speech laws.
  • The European Union also encourages debate about restrictions on hate speech through a commission against racism and intolerance. 
  • Most other European countries, along with Canada, Australia, India and many others, impose penalties for hate speech.

International conventions on ending racial discrimination outlaw “all dissemination of ideas based on racial superiority or hatred” and also  “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence.”  (See the Legal Project’s site for details on individual country laws).

The European approach is more in harmony with the “Paradox of Tolerance” theory, expressed by philosopher Karl Popper:  “Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.”  Popper didn’t advocate the banning of all hate speech, so long as rational argument and public opinion kept it in check. However, he said,  “we should claim the right to suppress (intolerance) if necessary even by force…”

John Rawls on the other hand argues in A Theory of Justice that a just society must tolerate the intolerant. But he agrees with Popper to some extent, that society’s self-preservation is more important than the principle of tolerance: “While an intolerant sect does not itself have title to complain of intolerance, its freedom should be restricted only when the tolerant sincerely and with reason believe that their own security and that of the institutions of liberty are in danger.”    

Hate speech and group libel in the US   

One way to look at hate speech is that it can be libel (defamation) of a whole group.   For a time, US law recognized  libel for groups of people, and held that representatives of those groups recover for (and stop) the libel.   In a 1952 case, Beauharnais v Illinois,     the US Supreme Court said yes,  that anti-negro pamphlets depicting “… depravity, criminality, unchastity or lack of virtue of citizens of Negro race and color …” could be punished by a state law.  That same year of 1952, allegations in New York that male employees of Nieman Marcus were “fairies” (gay) were found to be libelous by a federal court because there were fewer than 25 male employees, which is a small enough group to identify individuals.  On the other hand, allegations in the same article that females were “call girls” (prostitutes) addressed a group too large for individuals to be identified, and therefore did not constitute libel.

But these 1950s cases have not opened up a new field for litigation, in part because the 1964 New York Times v Sullivan case, and subsequent libel cases, required that individuals be identifiable and actual damages proven.   One of the major legal scholars of the 20th century, William Prosser, summed up the idea of group libel in US law.

In order to be actionable, a defamatory statement must be “of and concerning” the plaintiff. This means that a defamation plaintiff must show that a reasonable person would understand that the statement was referring to him or her. Of course, if a blog post or online article identifies the plaintiff by name, this requirement will be easily met. The plaintiff need not be specifically named, however, if there are enough identifying facts that any (but not necessarily every) person reading or hearing it would reasonably understand it to refer to the plaintiff. For example, a statement that “a local policeman who recently had an auto accident had been seen drinking alcohol while on duty” would likely be actionable because the policeman could be identified based on his recent accident.

So, for example, when the  Ramapough Lunaape Nation, a Native American tribe located mostly in the mid-Atlantic region of the U.S., wanted to sue the producers who made the movie “Out of the Furnace” in 2014, the suit was dismissed (Washington Post, May 24, 2014). (Also see Degroat v. Cooper (D.N.J. May 14, 2014).  And when a Montana law outlawed hate speech against Jewish people or members of any other religion as a group libel, a state court found that the law was unconstitutional on its face and dismissed the charges. (Washington Post, Sept. 16, 2015).

Hate speech and fighting words in the US    

“Fighting words” are those which might produce lawless action.   The case that established the fighting words doctrine was  Chaplinsky v. New  Hampshire, 1942.  Chaplinsky was cited for a breech of peace for calling a policeman “a damned fascist.” The state law specifically stated: “No person shall address any offensive, derisive or annoying word to any other person…” He appealed and the US Supreme Court said that since the words could lead to action,  the state law was Constitutional.

RAV v. St Paul, 1992 — An ordinance banned burning crosses, displaying swastikas or expressing religious or racial hatred. Some in the court said the city had plenty of ways to punish cross burners without an overly broad ordinance. The majority said that the fighting words doctrine cant be used to limit hate speech, and more or less overturned Chaplinsky.

From Spike Lee’s movie, Klansman.

Virginia v. Black, 2003 –A Virginia state law that bans cross-burning is (as in RAV) a violation of free speech rights, but if the cross is burned with the intent to intimidate, a law to prevent cross burning  is NOT unconstitutional. Arguments are discussed here at a Freedom Forum site. A burning cross, so long associated with racial violence in the US, is a “true threat” (as in Watts v. United States, 394 U.S. 705) A state may choose to prohibit “only those forms of intimidation that are most likely to inspire fear of bodily harm.”

The ‘True Threats” standard in Virginia v Black is probably the most comprehensive, according to the First Amendment Encyclopedia,” in which the speaker “means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

How far can freedom of speech go? What about a threat to the president of the US?  Or from the president of the US?  It’s important to remember that violence has a strong causal link to hate speech and threats.  The issue is how to decide what is hyperbole, and protected speech, on the one hand, and what is a real threat to other people.

Another case that opened up major questions about the balance between freedom of speech and the need to protect people from violence was Planned Parenthood v. American Coalition of Life Activists  in which an anti-abortion web site engaged in highly explicit  threats that may have been linked to a pattern of murders of abortion providing doctors. The web site was shut down by its independent provider.   The court said:

To rise to incitement, the speech must be capable of “producing imminent lawless action.” Brandenburg, 395 U.S. at 447. Here, the statements were made at public rallies, far away from the doctors, and before an audience that included members of the press. ACLA offered rewards to those who stopped the doctors at “some indefinite future time,” Hess, 414 U.S. at 108, and the ambiguous message was hardly what one would say to incite others to immediately break the law. Finally, the statements were not in fact followed by acts of violence. See Claiborne Hardware, 458 U.S. at 928 (“[H]ad [the speech] been followed by acts of violence, a substantial question would be presented” as to incitement, but “[w]hen such appeals do not incite lawless action, they must be regarded as protected speech.”).

The web site featured X-ed out names of doctors who had been assassinated and also contained inflammatory “wanted for murder and genocide” posters of living doctors. There were also testimonials to Paul Hill, an anti-abortion fanatic who used a shotgun at short range to kill a doctor and his guard.  Hill was executed for murder in 2003.

A jury found that the ACLA  web site contained “true threats” and violated the Federal Access to Clinic Entrances (which protects against threats) and ordered the site taken down. The ACLA won at the 9th Circuit appeals level, but the case was heard again en banc and Planned Parenthood won. The coalition appealed to the US Supreme Court but cert. was denied in June 2003. Lori Weiss  (in Fordham Law Review, 2004) argued that the FACE law is not a sufficient legal doctrine for this area of First Amendment jurisprudence, and suggested distinctions between political and non-political speech and also between  public and private people.

There are many different opinions about the definition of hate speech and its link to action.  Recently former Alaska Gov. Sarah Palin sued the New York Times for libel in connection with a statement showed some of her campaign literature with little “targets” over democratic members of congress.   The Times aid such rhetoric was leading to a rising climate of violence.

Elonis v US, 2015 —   Supreme Court case about true threats —  whether a  criminal conviction requires proof of an accused person’s subjective intent to threaten, or whether it is enough to show that a “reasonable person” would regard the statement by the accused as threatening. The court said it was.  This was the first time that true threats doctrine was applied to online speech.

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