HATE SPEECH: TO BAN OR NOT TO BAN


By CHERYL L. DAYTEC


The truth will set you free.
                       -Jesus Christ

The bedrock of viewpoint absolutism   is the principle of tolerance Strasbourg says is  necessary,  like  pluralism and  broadmindedness, to  democracy.[i] Not many disagree that tolerance  is indispensable in advancing individual and communal interests. 

Democracy thrives on the freest public discourse. When States create a free market of ideas, individuals’ thoughts evolve, and their interests, rights and abilities crystallize. This is not lost to Strasbourg which repeatedly declares that  freedom of  expression entails a public right to information.[ii] Its jurisprudence demonstrates that political speech[iii] and  expressions  on matters of public interest,[iv] demand fierce protection.

An open market of ideas liberates individuals. Armed with knowledge, they are able to resist manipulation. In an atmosphere of intolerance, thoughts are manipulated by those who wield the power of speech. Individuals  without thought are without  freedom.  People with manipulated thoughts are vulnerable  to eventually view their situation with their oppressor’s  eyes and co-author their oppression through silence and submission, a condition Freire calls internalized oppression.[v]  When they lose their personal consciousness,  they unwittingly install tyranny. In the ultimate analysis, these people live in a society afraid of its own truths, chained to falsehood, without freedom. Drawing from the naturalist theory that  human rights are a consequence of being human, intolerance  of speech may reduce  human dignity. As John Stuart Mill said,

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it.  If the opinion is right, they are deprived of the opportunity of exchanging error for truth:  if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.[vi] 

But the paradox of tolerance was well-stated by  Strasbourg: "(A)bsolute tolerance may lead to the tolerance of the  ideas promoting intolerance, and the latter could then destroy the tolerance."[vii]   American jurisprudence recognizes this. In one case, the US Supreme Court said:

"There are limits to the exercise of these liberties [of speech and of the press]. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish."[viii]                                                   


Tolerance of intolerance  is problematic because like a candle it can  self-destruct,  ultimately  negating tolerance. Unlimited tolerance and absence of tolerance, upon which hate speeches draw nourishment, are one and the same in consequences. They erect formidable structures of prejudice in the cultural as well as legal sphere  against individuals or groups of people targeted  on the basis of race, sex, nationality or religion. They become the unequal  “others” deprived of their  participation in the public discourse. And  “when people are denied public participation and voice, their issues, experiences and concerns are rendered invisible, and they become more vulnerable to bigotry, prejudice and marginalization.[ix] Hate expressions alienate  targets  from their civil rights and political participation. They  lead to intolerance, hindering victims  from exercising their freedoms.

Viewpoint absolutists, like Heinze, propound  that speech prohibitions achieve nothing and perhaps  America’s experience validates this.   But the United States is supposedly the world’s oldest and strongest democracy. It presumably has  tested  bureaucratic, judicial and legislative  apparatuses that address social issues, like inequality and prejudice,  which hate speeches foment or exacerbate. In a strong democracy, censorship  may even create a more vibrant democracy. While it incarcerates people,  it sparks the flame for assertion. It is human nature to cling to what one is about to lose. For instance, humans never claimed a right to oxygen until climate change happened. But this operates in a legal space where conditions are equal for all.

Not all democracies are strong and old. Europe has democracies newly-emergent from totalitarianism, struggling to equalize local  conditions. Other continents have fledgling  democracies. If socio-political structures that address issues of inequality are still fragile, tolerance of intolerance may not augur well with  democracy and human rights.

 Where pronounced inequality is the norm of the day, a line must be drawn between  where  tolerable offensive  speech ends  and where legally intolerable hate speech begins if democracy and human rights must be secured. Hate speech must be proscribed.  As the Camden Principles suggest, the borders of tolerance must be  defined to achieve equality, that is  comparable conditions of existence for all. However, proscription should take the form of  subsequent punishment and not prior censorship. Prior censorship curtails human rights because  gags prohibits human beings from utilizing faculties nature endowed them with.

The problem however is the definition of hate speech.  What may be classified as hate speech in Europe may be protected speech in America. One individual’s vulgarity is another’s lyric[x] as one society’s freedom  may be another’s destruction.

What constitutes hate speech is  dependent on society’s  political and social context.  At the minimum, every society should accept that  freedom of expression is the freedom to  offend, shock and disturb[xi] and no one should claim a right against insult.    A comprehensive restriction  on any  offending, shocking or disturbing speech militates against democracy and human rights. It   consigns freedom of expression to  people’s sensitivities and adopts emotions which  vary  from individual to individual as the yardstick for determining whether an expression is hate speech or not. It imposes compulsory  courtesy which violates individual autonomy. Compulsory courtesy then metamorphoses into subjugation of thought breeding tyranny, democracy’s antithesis. Needless to reiterate, tyranny does not respect human rights.  

The European Convention on Human Rights allows restrictions on speech although textually, it contains no hate speech prohibition.[xii] Strasbourg jurisprudence gives  States prerogative to prohibit  hate speeches which, according to the Committee of Ministers of the Council of Europe, include “all  expressions spreading, inciting, promoting or justifying racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”[xiii]  But since  socio-political conditions vary from society to society, Strasbourg  granted States  a ’margin of appreciation’[xiv]  to determine those restrictions necessary  for democracy and the protections of others’ freedoms. Apparently, many European states adopted legislation to outlaw expressions classified as hate speech by Strasbourg.  Each of them has their own standards, which are presumably abstracted from their historical experiences and socio-political needs.

But what should be common  is that to qualify as hate speech,  expressions should be so virulently denigrating that they  expose  targets to public prejudice, contempt or intolerance.  Even debunking religious beliefs may be proscribed as hate speech when its effect is such that it inhibits  believers from exercising their faith,[xv] but members of a religious community must tolerate the rejection by others of their religious beliefs.[xvi]  

Some Strasbourg free speech decisions may not withstand American judicial scrutiny which has a restrictive case law on free speech limitations. In some Strasbourg decisions, prior censorship  was upheld[xvii] which is repugnant to democracy and individual autonomy as it kills ideas before they are even expressed.  Mere tendency to foster intolerance is already enough basis to limit speech for politicians[xviii] which is taking hate speech prohibition to far corners.

This passionate position against hate speech is perhaps explained by   the fact that ECHR which is at the core of Strasbourg’s judicial power was Europe’s moral response to Nazism, an ideology propagating racial hatred and therefore an assault on human dignity,  as much as Germany’s Basic Law was the constitutional  means to  “a democracy capable of defending itself”[xix] drawing  its lesson from the Weimar Constitution which fostered a tenacious  democracy and  made  Nazism’s  rise auspicious.  Thus in Garaudy v. France[xx] Strasbourg, finding that Garaudy’s rights were not violated when punished for publishing a Holocaust denial book held that the book’s true end was “to rehabilitate the National-Socialist regime and, as a consequence, accuse the victims themselves of falsifying history.”  It said,  “Denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them.  And yet, Strasbourg has demonstrated  tolerance to what would amount to hate speech. In Jersild v. Denmark,[xxi] it  ruled that punishing a journalist who assisted in disseminating hate speech by a third party would curtail press freedom.

Not all individual freedoms are  boundless and unconditional. Some of them, like freedom of speech, should be  restricted as necessary to secure freedoms for others and communal objectives. Absolute tolerance of speech may water down the essence of freedom. As held by the Human Rights Committee in Faurisson v France,[xxii] restrictions on tolerance may  be necessary “to live from fear  of an atmosphere of anti-Semitism.”

To summarize, viewpoint absolutism breeds tyranny and negates individual autonomy. States must create an environment where democracy flourishes, that is people can participate in the public debate, and which promotes human rights, i.e. individuals are able to realize and exercise their fundamental rights.  While they should tolerate offensive speech, States  must proscribe virulent speech that isolates individuals from the rest of society and curtails their social  participation. However, the proscription should not abort ideas before they are expressed.




ENDNOTES

[i] Müslüm Gündüz v. Turkey, Application no. 35071/97 of 4 December 2003; Karatas v Turkey (GC), supra.; Vogt v. Germany, Application No.  7/1994/454/535, 2 September 1995.
[ii]Bowman v. The United Kingdom. Application number (141/1996/760/961); Orban v. France, Application No.  20985/05 (15 January 2009)
[iii]Incal v. Turkey, judgment of 9 June 1998
[iv]Jersild v. Denmark, ibid., para.31, Gündüz v. Turkey,

[v]Paulo Freire. Pedagogy of the Oppressed. Trans. by Myra Bergman Ramos. New York: Penguin Books, Ltd., 2002.

[vi] John Stuart Mill, On Liberty. Toronto: Dover Publication, 2002.
[vii] Kuhnen v. Federal Republic of Germany, Application  No. 12194/86), (1988)

[viii] Beauharnais v, Illinois, 343 U.S. 250 (1952)

[ix] Introductory Statement, The Camden Principles on Freedom of Expression and Equality
[x] Cohen v California,  403 U.S. 15 (1971)
[xi] Müslüm Gündüz v. Turkey, Application No. 35071/97 (4 December 2003); Karatas v Turkey (GC), 23168/94, ECHR 1999-IV; Vogt v. Germany, Application No.  7/1994/454/535, 2 September 1995.
[xii]On the other hand, the International Covenant on Civil and Political Rights in Article 20 (par. 2) expressly prohibits the advocacy of national, racial or religious hatred. The International Convention on the Elimination of All Forms of Racial Discrimination expressly prohibits propaganda promoting  racial discrimination.
[xiii] Scope, Recommendation No. R (97) of the Committee of Ministers to Member States on Hate Speech (30 October 1997)
[xiv]Although this is not written in the European  Convention on Human Rights, Strasbourg developed this in its jurisprudence to address the diversity of conceptions of issues such as morality and as a corollary of the principle of subsidiarity which states that supranational bodies are not substitutes for domestic mechanisms of human rights enforcement.  In Handyside v. UK, Strasbourg, rationalizing the grant to States of a margin of appreciation  said,  (B)y reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”
[xv] Otto-Preminger-Institut v. Austria, Application No. 13470/87 (20 September 1997)
[xvi] Aydin Tatlav  v Turkey (2 May 2002);  Otto Preminger v. Austria,  supra.
[xvii] For example,  in Observer, et alis v. UK, Application No.  13585/88 (26 November 1991), Strasbourg sustained the injunction of  press reports. The indorsement of prior censorship is clear from its decision in Gundaz (supra.) when it said that States may “sanction or even prevent” all forms of expression which spread, incite, promote or justify hatred based on intolerance. The word ’prevent’ refers to prior ban. In Đ. A. v Turkey, Strasbourg ruled that the prohibition of a publication, which contained abusive attacks on the Prophet Mohammed, by means of which believers legitimately felt themselves to be the object of unwarranted and offensive attacks, was justified.
[xviii]  Erbakan v. Turkey, Application No.  59405/00 (6  July 2006)
[xix] Vogt v Germany, Application No. 7/1994/454/535 (2 September 1995)
[xx]Application No.  65831/01 (24 June 2003)
[xxi] Application No. 15890/89 (23 September 1994)
[xxii] UN Doc. CCPR/C/58/D/550/1993 (1996)
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