Although the term "hate speech" lacks a unanimously agreed upon definition, it is generally referred to as language that has the intent to insight extreme hatred toward specific religious, racial, and gender groups. Please note that this is a drastic oversimplification; the only purpose of which is to give you an introduction to the topic. We will distinguish the different ways hate speech is treated worldwide below.
For a sample of what is usually considered hate speech, see one of the following examples.
While the above examples are static text, hate speech often applies to music and videos too. For an example of this, search on YouTube for either "white supremacy" or "Johnny rebel".
As mentioned earlier, hate speech is categorized differently depending on the country from which it originates. In general, there are two categories of regulation. The United States regulates almost no speech, unless it is directly responsible for immediate violence against an identifiable group or individual. The United States is not alone in its leniency toward speech. Other countries, such as Japan have no laws whatsoever regarding hate speech. In Europe, Canada, and south Africa, speech is more closely scrutinized. Laws prohibit speech meant to cause feelings of extreme hatred against certain factions in society. These laws generally apply to racial and religious groups, but may also apply to the protection of an individual's reputation or safety. Although the readings in this assignment focus on the United States, Canada, and the United Kingdom, the Canadian and British laws are similar to those found elsewhere in Europe. If you wish, you can browse hate speech laws of other European countries at the following links. This is purely optional, but provides a nice comparison to the laws outlined in detail below. This section may also be helpful to visit once you have completed the other readings.
10. (1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to -The entire document is at http://www.iwraw-ap.org/resources/pdf/South%20Africa_GE1.pdf(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.
After completing the following readings, please search on the internet for an example of hate speech. Be prepared to say whether it violates the standards used by the United States, Europe, or both. If you are uncomfortable looking for hate speech, you may read an article and answer a second question, both of which are given at the end of the readings.
In the United States, the first amendment provides Americans with the right to freedom of religion, the press, and speech. If you wish to read the text of the first amendment, it can be found here. http://www.usconstitution.net/const.html#Am1
Due to the broad protection of the first amendment, the supreme court has been reluctant to prohibit any type of speech. However, in the 1960s, the court first established criterion that, if met, would place speech outside the safe harbor of the constitution. First, read Brandenburg v. Ohio. The link is http://supreme.justia.com/us/395/444/case.html As you read this case, consider what types of speech would fulfill the requirements set forth in Brandenburg, and thus be ineligible for protection. hate speech online: Unfortunately, the supreme court has not addressed the issue of hate speech on the internet. However, lower courts, using the Brandenburg test, have found exceptionally few instances that violate the first amendment.
See an excerpt of Planned Parenthood v. American Coalition of Life Activists.
The link is http://cyber.law.harvard.edu/ilaw/Cybercrime/planned-parenthood.html.
Note that, according to the Brandenburg test, the speech must be a direct cause of violence, not indirect or simply correlated to violence as were the posters in this case.
Even in cases where the first amendment standards of protected speech are lowered, such as in the military, the court has refused to regulate speech online, unless it is a direct threat to the mission or safety of the troops. For a case expressing this viewpoint, read United States v. Wilcox. You can skim the majority of this opinion, but read carefully from pages 6-19, and pages 29-30. http://www.armfor.uscourts.gov/opinions/2008Term/05-0159.pdf
For online speech outside the protection of the constitution, see U.S. v. Morales. The link is http://caselaw.findlaw.com/us-5th-circuit/1402240.html
Public Opinion:
In addition to the fourteenth amendment, many citizens of the United States have expressed opinions opposing the regulation of hate speech online. Here are 2 of many examples available on the internet.
The United Kingdom and Canada have laws that are similar, but slightly tougher on hate speech than laws elsewhere in Europe. Additionally, British and Canadian courts have been more aggressive about upholding charges against those who violate the speech laws.
In recent decisions, the courts of Canada have applied hate speech provisions to the internet, in accordance with both the criminal act and the human rights act. First, read Warman V. Northern alliance, 2009 CHRT 10 The link is http://www.nelligan.ca/e/PDF/Warman_Court_Decision.pdf
While two Canadian acts prohibit hate speech, section 13-1 of the human rights act was recently called into question. In the case of Warman v. Lemire, the Canadian human rights commission ruled that the law was "penal in nature", and that it was too broad regarding the internet. The Canadian human rights commission is not a court, so the act is still law today. However, in a future opinion, the supreme court is free to take the ruling by the human rights commission into account. For a summary of this case, see http://www.nationalpost.com/news/story.html?id=1954734. If you want the link to the actual opinion, it can be found here. You may choose to skim this document, though it is 100 pages in length. http://chrt-tcdp.gc.ca/aspinc/search/vhtml-eng.asp?doid=981&lg=_e&isruling=0
In the United Kingdom, there are three acts which can be used by courts to convict people of hateful speech.
First, read sections 4 and 4a of the public order act. This can be found here.
http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=2236942.
Next,read the racial and religious hatred act, sections 29a through 29h, and 29k.
http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=2320532.
There is a third act, which passed into law in 2003. Under this act, anybody posting an offensive message through any communication network may be found guilty. This is known as the the communications act. Section 127, which addresses hate speech, and possibly widens its scope is found here.
http://www.legislation.gov.uk/ukpga/2003/21/section/127
Recently, there have been court cases in Britain punishing hateful speech with both the communications act and the public order act. Read the court case against Stephen Whittle and Simon Sheppard decided earlier this year.
http://www.bailii.org/ew/cases/EWCA/Crim/2010/65.html.
Read this case carefully. Note the court’s language as it explains how the public order act can cover new technologies such as the internet.
optional: There is a summary of this case here.
http://www.out-law.com/page-10743
Recently, in 2 well publicized cases, the United Kingdom has enforced the communications act of 2003 against those using Facebook and twitter.
For another example of the communications act enforced online, see the following link. This court decision is unavailable because it appears not to be published yet. http://menmedia.co.uk/manchestereveningnews/news/crime/s/1353148_facebook_troll_jailed_after_targeting_jade_goody_tribute_page
As you have seen, hate speech is regulated by few if any rules in the United States. Canada and Europe, especially the United Kingdom, deal with messages of hate in a very different manner. Now that you have read the material, please try to find a new instance of hate speech online. Which standard does it violate and why?
If you are uncomfortable searching for hate speech, you may answer a second question relating to policy. Recently, a professor from Harvard wrote an article discussing hate speech and regulations. In the second and third sections of his article, Professor Waldron explains why hate speech should be regulated, and why it would not harm our democratic society to restrict it. Read from pages 1615 to 1642 in Professor Waldron's article. Do you agree with any of his reasons for regulating hate speech? Why or why not? If so, what is the best way to try regulating speech without running afoul of the speech we are guaranteed under the fourteenth amendment?
The link for this article is:
http://www.harvardlawreview.org/media/pdf/vol123_waldron.pdf
Return to the syllabus.