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WHEN TO REGULATE HATE SPEECH, 110 Penn St. L. Rev. 539
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
110 Penn St. L. Rev. 539
Penn State Law Review
John C. Knechtlea1
Copyright (c) 2006 The Dickinson School of Law of The Pennsylvania State University; John C. Knechtle
WHEN TO REGULATE HATE SPEECH
Laws that prohibit the expression of hate, commonly called hate speech, against individuals or groups based on national or ethnic origin, race, or religion are widely debated. Such laws proscribe a variety of types of speech including racial, ethnic and religious epithets,1 historical revisionism about racial or religious groups (i.e. denying the Holocaust),2 or incitement to ethnic, racial or religious hatred, discrimination or violence.3 Hate speech also arises in the context of a harassing and hostile work or educational environment;4 however, this article addresses the former three types of hate speech.
The extent of hate speech regulation in the world, including liberal democracies, sharply contrasts with that of the United States, where free speech interests prevail. Hate speech regulations impact much more than the podium speaker on the street; they impact many areas of everyday life, such as the Internet, freedom of the press, tort law, criminal law, and reading materials, inter alia. Not only are hate speech regulations affecting more areas of life, they are increasingly growing in favor *540 throughout the world. This contrast is especially clear in the area of Internet hate speech, state laws and international conventions.
While the United States is becoming a hub for Internet hate speech,5 other countries are prohibiting hateful content distributed on the Internet in their countries. Internet hate speech is of particular interest because the Internet is available in all countries and contains vast amounts of information that is easily accessible. The United States Supreme Court afforded the highest level of protection to Internet speech under the First Amendment.6 This is not the case in other countries.7 In China, for example, the government controls access to all communications through the use of firewalls.8 In a highly publicized French case, Yahoo, Inc. was found liable for allowing French citizens access to sites which sold Nazi memorabilia.9 Germany, which has some of the strongest prohibitions of Internet hate speech, will subject persons to criminal prosecution for providing a hate speech site accessible to Germans.10 Decisions by the German courts have prompted Internet service providers (ISPs) to block access to sites containing hate speech or symbols of hate speech.11 In Canada, ISPs are protected from criminal prosecution for allowing access to hate speech. However, under the Canadian Human Rights Act,12 individual web sites that communicate discriminatory material pertaining to race, religion or national or ethnic origin are subject to injunctions against the use of their sites.13 This Act was enforced in 1997 when the *541 Canadian government successfully removed an anti-Semitic web site.14 In addition to state sponsorship of Internet hate speech regulations, the Council of Europe and the European Union are actively advocating civil and penal liabilities for the distribution of hate speech via the Internet.15
Foreign governments are increasingly adding laws that prohibit various forms of hate speech. Many hate speech regulations were in response to the human rights violations during World War II. The United Kingdom, for instance, enacted laws pursuant to its international obligations that made the publication or utterance of words “which are threatening, abusive or insulting” subject to criminal prosecution if that expression were intended to incite hatred on the basis of race, national origin or color.16 The United Kingdom has added to this framework by passing Section 5 of the Public Order Act17 and the Protection from Harassment Act18. Germany has been particularly vigilant in passing laws that prohibit hate speech. German law prohibits and criminalizes incitement of hatred, or attacks on human dignity on account of race, nationality, ethnic origin, or religion.19 In Australia, in New South Wales, the Anti-Discrimination Amendment Act No. 48 of 1989 was the first law that criminalized the incitement of hatred, serious contempt, or severe ridicule of person(s) on the basis of race or membership in a group by threatening harm or inciting others to threaten harm.20 Canada has also passed legislation that provides for criminal sanctions for advocacy of genocide and “inciting hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.”21 These are only a few examples of the increasing number of countries enacting hate speech regulations.22
*542 Another example of international condemnation and prohibition of hate speech are international conventions prohibiting such speech. Among these conventions, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD) provides for the condemnation of all expression advocating the superiority of one race or group over another group based on race, color or ethnic origin or promoting racial hatred.23 CERD also requires criminalization and injunction by states against persons who engage in those activities.24 Even the United Nations Human Rights Committee (Committee) took a harsh stance against hate speech when it upheld a conviction of a French literature professor who denied, among other things, the existence and use of gas chambers against Jews during the Holocaust.25 The Committee determined that under the United Nations Covenant on Civil and Political Rights the Professor’s statements would increase anti-Semitism and interfere with the rights of the Jews to live free from the fear of anti-Semitism.26 Furthermore, the European Court of Human Rights has consistently decided that hate speech regulations do not violate freedom of expression.27 In Jersild v. Denmark,28 a racist youth group made degrading remarks against immigrants. The European Court agreed with the Danish court that the conviction of the youths was proper because there were limitations on free speech when hate speech does not provide for “the protection of the reputation or rights of others.”29 Internationally, the world is placing less emphasis on the freedom of speech, and more emphasis on the dignity of persons.
The divide between the U.S. approach and the growing international *543 consensus on hate speech is substantial. Those involved in this public debate either support or oppose such laws despite the broad range of histories with genocide, violence and discriminatory practices, values, cultures, legal systems and jurisprudence, and despite the wide range of harms hate speech laws seek to address. This article seeks to discover the reasons for the differences, find common ground in the debate, and propose a way for hate speech regulation to develop in the U.S.
The first section of this article identifies two umbrella harms that regulations of hate speech seek to address: the harm of potential violence and the harm to human dignity. This section also discusses the rationale behind providing and prohibiting a legal remedy for such harms. The second section describes two critical factors for consideration in deciding when and how a country chooses to regulate hate speech: 1) a country’s history with ethnic, racial and religious violence, genocide, and discriminatory practices; and 2) its jurisprudential history, which reflects the hierarchy of its constitutional value choices. These factors are under-appreciated in the debate because to give them their proper place would require understanding of not only the legal arguments, but also a people’s history and hierarchy of constitutional values.
Finally this article posits that as each country decides how best to balance its constitutional values, at a minimum, hate speech that threatens unlawful harm or incites to violence may be proscribed. To accomplish this in the U.S., this article proposes that in addition to Brandenburg’s “incitement to imminent violence test,” the “true threats” test should apply to hate speech. The true threats doctrine was initially developed to protect the president, vice president and other high level government officials from threats of violence and has since been expanded to a broader application. It requires that the speaker intend his or her language to be a threat (whether or not he or she actually intends to carry out the threat), and that a reasonable listener, in context, would interpret the language as a threat of unlawful harm. Intimidation can constitute a true threat if it is to create a fear in its victims that they are a target of violence. Such an approach addresses the more virulent forms of hate speech, which, although not as extensive as hate speech regulations adopted elsewhere in the world, constitute a starting point for regulating hate speech.
II. Forming a Basis of Hate Speech Codes
Although there are many arguments for why hate speech should be regulated, many of these arguments fail because they do not take into consideration the peculiarities of people from different countries, and the ideas upon which their governments were founded. Many commentators *544 have addressed the adverse impact of hate speech and have attempted to invent mechanisms that they believe will adequately compensate for those harms. However, the more pressing issue that theorists should address is the practicability of the proposed theory and its potential acceptability with legislators, judges, and the voting public. Many commentators have suggested radical reforms, which are unlikely to gain in popularity, except, perhaps, in the labyrinths of academia. On the other hand, other commentators have so myopically focused on real-world utilitarian solutions for hate speech regulations that they propose that the current system is adequate.30 While it is true that the current corpus juris works, the aspirational components of a better, more peaceful society should not be forgotten or overlooked. This article attempts to provide an alternative basis that will be closely tailored to the history of a people, and the ideas associated therewith.
A reality based approach must first determine what harms are created by hate speech. In practice, states have sought to protect their citizens from violence and/or attacks against dignity. These harms are recognized in state histories as harms that government has an interest in protecting against pursuant to its police powers. Many hate speech commentators have focused on why hate speech should or should not be regulated. In an attempt to prove why such speech should or should not be regulated, their postulates focus on the importance of the market place of ideas,31 that feelings have a real emotive impact,32 or that judges *545 should place more emphasis on the idea of equality.33 These postulates are “how to” arguments; in other words, they focus on “how to” prove a libertarian or hate speech code advocate view. Although these postulates add to the volumes of academic literature and philosophical debate, this article emphasizes what harms states are willing and wanting to protect against. Instead of focusing on “how to” arguments, the following analysis will begin with what states, in practice, are protecting: harms involving violence and harms against human dignity.
*546 A. Harm of Potential Violence
The harm of potential violence refers to the propensity of hate speech to incite and cause violence.34 Society has a compelling interest in limiting and eliminating violence due to its axiomatic harm, and the more subtle harm created by engendering fear, suspicion, distrust, and alienation.35 The government’s function is twofold: (1) protect individuals threatened with immediate violence, and (2) to “preserv[e] the social conditions . . . that foster individual autonomy.”36 To maintain societal harmony at a minimum, the government must ensure safety from violence.37 One commentator observes:
In order for autonomous individuals to flourish [in a society] there must exist certain social conditions conducive to autonomy. Freedom and individual dignity can only survive in a community that recognizes their value and is prepared to maintain them as principles of the social order. But there are moments when the autonomous individual takes actions that are inimical to the maintenance of the social fabric which supports individual autonomy. One such moment is when the individual incites violence.38
To ignore or deny the relationship between hate speech and the threat or incitement to violence is to not know history, including recent history. One need not return to Nazi Germany in the 1930s and ‘40s to understand the connection between hate speech and violence. Hate speech was an integral component of the “ethnic cleansing” in the war in Bosnia. In an effort to quell the fomenting violence, Bosnian police dispersed peaceful demonstrations because of their hate speech content. For example, at the urging of foreign democratic leaders, Bosnian Serb police used tear gas and water cannons to disperse “hundreds” of demonstrators chanting nationalist songs and anti-Muslim slogans in Banja Luka on June 18, 2001. The demonstrators were attempting to prevent the rebuilding of the 16th-century Ferhadija mosque, which Bosnian Serb irregulars destroyed during the 1992-1995 war as part of a campaign to remove all physical aspects of Bosnia’s Muslim heritage.39 A U.S. State Department official asserted: “There are obvious free-speech concerns, but we need to put in place something to deal with the *547 abuses of the media-- the hate, the racial epithets and ethnic slurs.”40 The media stoked the violence and even though proving a causal relationship between racial or religious epithets in a particular newspaper article or radio or television program and a specific act of violence may be impossible, when understood in the context of the overall violence engulfing the region, the state’s interest in procuring peace supersedes the right to express hate.
The 2004 movie Hotel Rwanda effectively portrayed the role that hate speech broadcast over the radio played in the Rwandan genocide. Between January and July of 1994, Radio-Television Libre des Mille Collines (RTLM) in Kigali, Rwanda broadcast hate speech towards the Tutsi minority encouraging the population on political grounds to commit acts of violence against the Tutsi population.41 Initially the French and U.S. governments opposed taking any action against RTLM, with the U.S. Ambassador claiming that its euphemisms were subject to many interpretations.42 The Canadian ambassador later said: “The question of Radio Mille Collines propaganda is a difficult one. There were so many genuinely silly things being said on the station, so many obvious lies, that it was hard to take it seriously. . . . Nevertheless, everyone listened to it--I was told [about it] by a Tutsis [sic]--in a spirit of morbid fascination and because it had the best music selection.”43
RTLM’s radio hate speech grew increasingly virulent with devastating impact. On June 4, 1994 RTLM journalist Kantano Habimana told listeners that “[t]hey should all stand up so that we kill the Inkotanyi and exterminate them . . . the reason we will exterminate them is that they belong to one ethnic group. Look at the person’s height and his physical appearance. Just look at his small nose and then break it.”44 These more virulent expressions of hate occurred during the peak of the massacres.
Only after the Rwandan genocide had occurred did the international community take RTLM’s radio hate speech seriously. On December 3, 2003, after a three-year trial, the International Criminal Tribunal for *548 Rwanda (ICTR) sentenced one of the founders and Steering Committee members of RTLM to thirty-five years in prison after it found him guilty of five of the seven charges, including direct and public incitement to commit genocide.45 In addition, the ICTR found a causal connection between RTLM’s broadcast of the names of Tutsi individuals and their families and their murders.46
Order inheres in a successful society. If a government is unable to protect its citizenry from violence, it will not be able to function. For this reason, governments around the world have enacted hate speech codes that address the harm of violence, or the potential for violence.47
In the United States, the Supreme Court has affirmed the power of the government to protect itself from change procured by “violence, revolution and terrorism.”48 In Brandenburg v. Ohio, the leader of a Ku Klux Klan group was convicted under Ohio’s Criminal Syndicalism statute for “advocat [ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”49 The defendant organized a rally wherein twelve hooded Ku Klux Klan members privately united to burn a cross and make derogatory racial epithets.50 Additionally, the defendant made threats against the government: “[I]f our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.”51 The Court ruled that the government may only prohibit the advocation of unlawful conduct if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”52 The Court found that Ohio’s statute was unconstitutional as a violation of the First and Fourteenth Amendments because it did not require imminent lawless action, nor did it distinguish between mere advocacy and incitement.53 The Court found that certain forms of advocacy could be prohibited only if predicated upon imminent violence.54 Therefore, the United States has recognized that hate speech may be prohibited, but set a very high standard for its prohibition.
The Netherlands prohibits hate speech that advocates violence. Under section 137 of the Criminal Code, “Any person who, by means of *549 the spoken or written word or pictorially, deliberately and publicly incites . . . violence against persons or property of others on account of their race, religion or conviction or sexual preference, shall be liable. . . .”55 Likewise, France, in 1972, made “incitement to discrimination, hatred or violence against a person or a group of persons on grounds of origin or because of their belonging or not belonging to a given ethnic group, nation, race or religion . . . an offence.”56
Even where violence is not explicitly mentioned, many states prohibit insulting or racist speech. These states realize that there is a cumulative affect of racial incitement, which, over time, will lead to increased violence.
Israel has enacted laws to protect its citizens from violence. In Israel, which has been plagued with racial unrest, the penal law provides: “A person who publishes anything with the purpose of stirring up racism is liable to imprisonment for five years.”57 This amendment to the penal law was in response, in large part, to Rabbi Meir Kahane’s election to the Knesset.58 Kahane established a “political-racial movement,” which advocated the expulsion of Arabs from Israel and the reestablishment of a theocracy.59 After his election, Kahane openly called for the persecution of Arabs in Israel to encourage their emigration.60 He even started to visit Arab communities to persuade the residents to leave Israel and go to an Arab country.61 Understandably, Kahane’s ideas were not warmly received by Arab citizens and the police were forced to “quell the resulting confrontations.”62 Israel’s penal code seeks to prevent violence that results from racist expression.
The implementation of hate speech codes to curtail violence is necessary to facilitate an ordered, peaceful state. Few would argue that the state does not have an interest in prohibiting speech that will lead to violence. The real concern with the curtailment of violence as applied to hate speech is one of degree. In the United States, a very high degree of correlation between hate speech and violence is required before the government may prohibit the speech: incitement to imminent violence. Whereas, in other states, mere incitement is sufficient. However this *550 balance between civil liberties and government protection from violence fluctuates based in part on how fearful the population is of potential violence. Recent events in international terrorism appear to have swung the pendulum in the U.S. in the direction of greater government protection, even when it impinges on rights of free speech, freedom of association and the right to privacy. In the wake of September 11, 2001, supermajorities in both houses of Congress agreed to limit civil liberties to achieve greater security by adopting the Patriot Act which among other things, expanded the government’s surveillance powers.63 In addition to the surveillance allowed under the Patriot Act, President Bush authorized the National Security Agency to eavesdrop within the U.S. without a warrant.64 Although the legality of some of these approaches is debated, they show that when a majority of the population feels that its safety is seriously threatened, people in the United States are willing to make compromises between their rights and their safety. Time will show us whether this current shift is a momentary reaction to the terrorist attack of September 11th, or a more permanent re-balancing.
It is also critical to realize that minority groups may have more legitimate fears of violence being perpetrated upon them than the majority does, particularly if there is a history of injuries being inflicted by the dominant racial, religious or ethnic group. Minority groups may therefore possess a keen interest in curtailing hate speech which instigates this violence. However because of their minority status and relationship with the majority, it may be difficult or even impossible for them to persuade the majority of the importance of their concerns.
B. Harms Affecting Human Dignity
Human dignity has become a “fashionable concept” in modern constitutions and conventions. This concept is hard to define because its progeny was a dynamic process, and the concept is still in a state of flux. Different states define human dignity differently. One commentator has explained the basic nature of human dignity accordingly: “human dignity is not merely a general philosophical concept or even an individual *551 attribute, but rather an expression of a sense of being that is simultaneously personified and imbedded in the relationship between individuals and their community. . . .”65 Human dignity reflects a certain standard of respect by which all persons must be treated simply due to their intrinsic worth as human beings living in a community.
The right of human dignity may be exercised by the state or by persons. For example, in Germany, a female stripper is not allowed to voluntarily strip if she cannot engage her audience directly.66 The court reasoned that regular strip shows engage the audience directly, thereby participating in a form of self-expression similar to theatre or dance.67 Because the stripper was unable to engage the audience, her exposure was simply degrading, which violated her right to dignity.68 The right to human dignity is so important that the German government has an independent duty to protect against abuse, even when the “abused” do not want the government’s protection.69
In South Africa, the concept of human dignity was foundational in correcting the harms prevalent in the apartheid era. The Constitutional Court has marked the vitality of human dignity: “the importance of dignity as a founding value of the new Constitution cannot be overemphasized . . . [t]his right therefore is the foundation of many of the other rights. . . .”70 The concept of human dignity was entrenched into the Constitution to combat the extreme abuses of human dignity in the apartheid era of South Africa.71 South African courts have since used the Constitution to prevent many apartheid abuses, by, inter alia, invalidating apartheid laws that allowed the police to use lethal force in order to arrest someone.
Laws prohibiting sodomy were struck down due to concern that sodomy laws create disdain by punishing a form of sexual expression common to homosexuals, thereby degrading and devaluing the dignity of homosexuals.72
*552 The concept of human dignity has played an important role in Europe and South Africa in forming constitutional standards that the government must enforce to ensure the rights of its citizens.
III. A Factored Approach to Whether Hate Speech Codes Should Be Implemented
Many speech code advocates argue that the United States should borrow from hate speech laws in other countries; however, this approach is flawed because it does not account for the peculiarities of people in different countries. This “good for the goose, is good for the gander” approach ignores the history and associated attitudes and assumes that all peoples are homogeneous. Hate speech codes have typically focused on radical approaches to regulation based on academics’ views of what are appropriate regulations in an ideal society without accounting for the peculiarities of a people. This article proposes a positivist, factored approach to determining whether hate speech code regulations should be implemented and, if so, the degree of implementation on a state-by-state basis.
There are two predominant factors that should be considered: (1) historical accounts of ethnic, racial and religious violence, genocide, and discriminatory practices; and (2) jurisprudential history. Hate speech regulations are becoming increasingly prevalent in states that experience or have experienced severe racial tensions and atrocities. These states are implementing policies in order to facilitate a peaceful, harmonious state by recognizing that hate speech codes may prevent hateful conduct. Although the United States has been plagued with interracial tensions and violence, and has performed genocidal atrocities, when it comes to freedom of speech, it has placed a greater value on individual rights than community rights, and a greater value on liberty than equality. This libertarian bent almost always allows hate speech, unless there is an imminent risk of violence. This threshold should be lowered to reflect the reality of its pluralistic environment, coupled with its record on human rights. However, one must also balance the jurisprudential history of the United States in realizing workable solutions that have a basis in United States legal tradition. Within that tradition, as well as in other states, there is a strong interest in protecting citizens against violence.
However, the concept of human dignity has not had the same impact in the United States as it has in other countries. Because the concept’s development, as applied to political rights, was not incorporated into the federal Constitution, it has not significantly developed in the common law. In its place, the right of free expression has taken root.
*553 A. Historical Accounts of Ethnic, Racial and Religious Violence, Genocide, and Discriminatory Practices
The first factor focuses on racial violence, genocide, and discriminatory practices within the target state. Where these practices are more prevalent and egregious, there is greater need to implement hate speech code regulations. Like other governments, the United States has a history of violence that needs to be regulated and controlled.
Germany is a strong supporter of hate speech codes.73 It has a peculiar history due to the atrocities the Nazis carried out against the Jews during World War II.74 Germany has enacted very broad hate speech codes:
Whosoever, in a manner liable to disturb the public peace,
(a) incites hatred against parts of the population or invites violence or arbitrary acts against them, or
(b) attacks the human dignity of others by insulting, maliciously degrading or defaming parts of the population shall be punished by imprisonment of no less than three months and not exceeding five years.75
“Human dignity” is also broadly defined as an attack “on the core area of [the victim’s] personality, a denial of the victim’s ‘right to life as an equal in the community,’ or treatment of a victim as ‘an inferior being excluded from the protection of the constitution.”’76 The hate speech codes prescribe significant punishments, including up to five years’ imprisonment or a fine.77
*554 There is a strong connection between Germany’s history and its hate speech codes. In a case against the leader of a right wing German political party, the defendant posted leaflets in a public forum that declared that the murder of millions of Jews amounted …