Definitions

voluntaristic

Hate speech

Hate speech is a term for speech intended to degrade, intimidate, or incite violence or prejudicial action against a person or group of people based on their race, gender, age, ethnicity, nationality, religion, sexual orientation, gender identity, disability, language ability, moral or political views, socioeconomic class, occupation or appearance (such as height, weight, and hair color), mental capacity and any other distinction that might be considered by some as a liability. The term covers written as well as oral communication and some forms of behaviors in a public setting. It is also sometimes called antilocution and is the first point on Allport's scale which measures prejudice in a society. Critics have claimed that the term "Hate Speech" is a modern example of Newspeak, used to silence critics of social policies that have been poorly implemented in a rush to appear politically correct.

Legal aspects

In the United States, government is broadly forbidden by the First Amendment of the Constitution from restricting speech. Jurists generally understand this to mean that the government cannot regulate the content of speech, but that it can address the harmful effects of speech through laws such as those against defamation or incitement to riot.

The fact that such laws apply only to the victimization of specific individuals has led to disputes regarding how such laws should be regulated, if they are to be regulated at all. Among those who hold that hate speech must be regulated, it is undecided as to whether hate speech should be regulated by the state or by voluntaristic communities. Criticisms of hate speech regulation include the view that such legislation would be unjust to those with controversial political or social views.

Where such laws exist they are limited by the constitutional rights to freedom of expression. For example, the German constitution is more restrictive, guaranteeing 'freedom of voicing one's opinion' and elsewhere restricts its misuse against the public peace. The German Criminal Code specifically forbids inciting hatred against ethnic groups, and revisionism, as in France under the Gayssot Act, is prohibited on those grounds.

An alternative to legal regulation or criminalization of speech, particularly in jurisdictions such as the United States that extend broad protection to the content of speech, is the use of tort law to pursue Intentional Infliction of Emotional Distress (IIED) claims against those accused of hate speech. Law and precedent concerning intentional torts and the necessary elements which establish liability in an IIED claim place limits on when such a claim may arise.

Speech codes

Various institutions in the United States and Europe began developing codes to limit or punish hate speech in the 1990s, on the grounds that such speech amounts to discrimination. Thus, such codes prohibit words or phrases deemed to express, either deliberately or unknowingly, hatred or contempt towards a group of people, based on areas such as their ethnic, cultural, religious or sexual identity, or with reference to physical health or mental health. There has been an increase of prohibition of terms regarded as "hate speech" based on socio-economic class in the United States, same goes to regional slurs and comments in Europe. But for many North Americans and western Europeans, hate speech has become unacceptable (at least in public), immoral and sometimes, it is taboo to use certain words or discuss certain subjects they fear may be offensive or illegal. In some contexts it may also be offensive or illegal to challenge the rights of individuals based on any or all of the above criteria.

In addition to legal prohibition in many jurisdictions, prohibitions on the use of hate speech have been written into the bylaws of some governmental and non-governmental institutions, such as public universities, trade unions and other organizations (see below), though the use of speech codes in public universities in the United States is illegal, because public universities, as agents of the State, are Constitutionally restricted from regulating or penalizing speech based on content. Its use is also frowned upon by many publishing houses, broadcasting organizations and newspaper groups. However, most business corporations adapted strict rules and regulations concerning verbal conduct at the workplace. These are similar to anti-hate speech laws and any employee caught in a violation of anti-hate speech codes may be dismissed. Many schools and universities have speech codes restricting some free speech. Hate speech codes are rules intended to ensure an atmosphere free from harassment and intimidation, conducive to a learning environment. Many academics have criticised these policies, arguing they are an impediment for free and uncensored discussion on controversial topics. Moreover, it is argued that the very concept of harassment is often misused and frequently cheapened, interpreting criticism (of a faith, opinion, or lifestyle) as something traumatic and harmful. Opponents of hate speech codes maintain that debate is essential to searching for the truth, and hate speech codes interfere with this mandate by silencing discussion from the very start (becoming censorship). They maintain that "harassment" should only be interpreted as a direct personal threat. They also argue that students should be confronted with perspectives they can find repulsive, as it will help strengthen their own arguments and ultimately achieve a more sturdy, well-rounded understanding of the issue.

One organization active in opposing campus speech codes is the Foundation for Individual Rights in Education, or FIRE.

The landmark case of in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) gave rise to a public discussion on fighting words, see also the 1918 case of Schenck.

Laws against hate speech

In many countries, deliberate use of hate speech is a criminal offence prohibited under incitement to hatred legislation.

Australia

The Commonwealth of Australia

The Racial Discrimination Act 1975 forbids hate speech on several grounds. The Act makes it “unlawful for a person to do an act, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and the act is done because of the race, colour or national or ethnic origin of the other person, or of some or all of the people in the group.” An aggrieved person can lodge a complaint with the Human Rights and Equal Opportunity Commission. If the complaint is validated, the Commission will attempt to conciliate the matter. If the Commission cannot negotiate an agreement which is acceptable to the complainant, the complainant's only redress is through the Federal Court or through the Federal Magistrates Service.

In 2002, the Federal Court applied the Act in the case of Jones v. Toben. The case involved a complaint about a website which contained material that denied the Holocaust. The Federal Court ruled that the material was a violation of the Act. Section 85ZE of the Crimes Act 1914 makes it an offence to use the Internet to disseminate material intentionally that results in a person being menaced or harassed. This offence includes material communicated by email. Federal criminal law, therefore, is available to address racial vilification where the element of threat or harassment is also present, although it does not apply to material that is merely offensive.

Tasmania

Section 19 of Tasmania's Anti-Discrimination Act 1998 prohibits anyone from inciting hatred. The Act says:
A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of –
(a) the race of the person or any member of the group; or
(b) any disability of the person or any member of the group; or
(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or
(d) the religious belief or affiliation or religious activity of the person or any member of the group.

New South Wales

In 1989, by an amendment to the Anti-Discrimination Act 1977, New South Wales became the first state to make it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group on the grounds of race. The amendment also created a criminal offence for inciting hatred, contempt or severe ridicule towards a person or group on the grounds of race by threatening physical harm (towards people or their property) or inciting others to threaten such harm. Prosecution of the offence of serious vilification requires consent from the Attorney-General and carries a maximum penalty of a $10,000 fine or 6 months imprisonment for an individual—$100,000 for a corporation. An offence has not yet been prosecuted under this law.

Queensland

Queensland's Anti-Discrimination Act 1991 and amendments create laws that are similar to Tasmania's. In 2001, the Islamic Council of Queensland brought the first action under the Anti-Discrimination Act for victimisation on account of religion. The Islamic Council complained that the respondent Mr. Lamb, a candidate in a federal election, had expressed some unfavourable opinions about Muslims in an electioneering-pamphlet. Walter Sofronoff, for the Anti-Discrimination Tribunal, dismissed the action on the ground that Mr. Lamb did not intend to incite hatred or contempt but rather wanted to let the electors know his opinions on political matters.

Western Australia

Unlike other jurisdictions, Western Australian law imposes criminal but not civil sanctions against racial vilification. In Western Australia, the Criminal Code was amended in 1989 to criminalise the possession, publication and display of written or pictorial material that is threatening or abusive with the intention of inciting racial hatred or of harassing a racial group. Penalties range between 6 months and two years imprisonment. It is noteworthy that the Western Australian legislation only addresses written or pictorial information—not verbal comments. The emphasis on written material arose in direct response to the racist poster campaigns of the Australian Nationalist Movement in the late 1980s and early 1990s. There have been no prosecutions to date.

Victoria

On 1 January 2002, Victoria put into effect its Racial and Religious Tolerance Act 2001 which makes religious vilification as well as racial vilification unlawful. Section 8(1) of the Act states:
A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
Note: "engage in conduct" includes use of the internet or e-mail to publish or transmit statements or other material.

Section 11 of the Act provides this concession in favour of freedom of expression:

A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith—
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for—
(i) any genuine academic, artistic, religious or scientific purpose; or
(ii) any purpose that is in the public interest; or
(c) in making or publishing a fair and accurate report of any event or matter of public interest.

In 2004, the Islamic Council of Victoria laid a complaint under the Act about the preaching by two Christian pastors. One pastor, a man who had fled Pakistan when a charge of blasphemy was made against him there, was Daniel Scot. The other pastor was Danny Nalliah. Scot and Nalliah made controversial remarks about Islam at a seminar. On 17 December 2004, the Victorian Civil and Administrative Tribunal, in the person of Judge Michael Higgins, determined that the pastors had violated the Act. The judge sentenced them to print an apology—drafted by the judge—on their website, in their newsletter, and in eight advertisements appearing in two newspapers. The pastors appealed. The Supreme Court of Victoria overturned the Tribunal's decision. The Court said the Tribunal had no business “attempt[ing] to assess the theological propriety of what was asserted at the Seminar.” The Court directed a re-hearing before a different judge. The pastors and the Islamic Council of Victoria prevented a re-hearing by resolving their conflict through mediation on 22 June 2007.

South Australia

The Racial Vilification Act 1996 is similar to the law in New South Wales.

The Northern Territory

The Anti-Discrimination Act 1992 prohibits discrimination and harassment in activities associated with education, work, accommodation, services, clubs, and insurance or superannuation.

The Australian Capital Territory

The Discrimination Act 1991 is similar to the law in New South Wales.

United Kingdom

In the United Kingdom, the Public Order Act 1986 prohibits, by its Part 3, expressions of racial hatred. "Racial hatred" is defined as hatred against a group of persons by reason of the group's colour, race, nationality (including citizenship) or ethnic or national origins. Section 18 of the Act says:
A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

Offences under Part 3 carry a maximum sentence of seven years imprisonment or a fine or both.

The Racial and Religious Hatred Act 2006 amended the Public Order Act 1986 by adding Part 3A. That Part says, "A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred." The Part protects freedom of expression by stating in Section 29J:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The Criminal Justice And Immigration Act 2008 amended Part 3A of the Public Order Act 1986. The amended Part 3A adds, for England and Wales, the offence of inciting hatred on the ground of sexual orientation. All the offences in Part 3 attach to the following acts: the use of words or behaviour or display of written material, publishing or distributing written material, the public performance of a play, distributing, showing or playing a recording, broadcasting or including a programme in a programme service, and possession of inflammatory material. In the circumstances of hatred based on religious belief or on sexual orientation, the relevant act (namely, words, behaviour, written material, or recordings, or programme) must be threatening and not just abusive or insulting.

Germany

In Germany, Volksverhetzung (incitement of hatred against a minority under certain conditions) is a punishable offense under Section 130 of the Strafgesetzbuch (Germany's criminal code) and can lead to up to five years imprisonment. Volksverhetzung is punishable in Germany even if committed abroad and even if committed by non-German citizens, if only the incitement of hatred takes effect within German territory, e.g. the seditious sentiment was expressed in German writ or speech and made accessible in Germany (German criminal code's Principle of Ubiquity, Section 9 §1 Alt. 3 and 4 of the Strafgesetzbuch).

Ireland

In Ireland, the right to free speech is guaranteed under the Constitution (Article 40.6.1.i). However, the Prohibition of Incitement to Hatred Act, proscribes words or behaviours which are "threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred" against "a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.

Canada

In Canada, advocating genocide or inciting hatred against any 'identifiable group' is an indictable offense under the Criminal Code of Canada with maximum terms of two to fourteen years. An 'identifiable group' is defined as 'any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.' It makes exceptions for cases of statements of truth, and subjects of public debate and religious doctrine. The landmark judicial decision on the constitutionality of this law was R. v. Keegstra (1990).

Canadian Federal Law

In 2003 in Saskatchewan, the Crown charged David Ahenakew with hate speech because of his remarks about Jews. The Court convicted Ahenakew, and fined him $1,000. In 2008, the Attorney General for Saskatchewan decided to retry the matter after the conviction was overturned on appeal.

Canadian Provincial and Territorial Law

Canada's provinces and territories have human rights commissions or tribunals which can award compensation in matters of hate speech. Saskatchewan had the first legislation in North America (1947) to prohibit victimisation on account of race, religion, colour, sex, nationality, ancestry, and place of origin. Saskatchewan's legislation is more restrictive than the prevailing model of legislation in Canada. Saskatchewan's Human Rights Code says "No person shall publish or display ... any representation ... that ... affronts the dignity of any person or class of persons ....The prevailing model of legislation prohibits communication which victimises anyone, or which is likely to expose any individual or class of individuals to hatred or contempt.

In June 1997, the Saskatchewan Human Rights Tribunal held that Hugh Owens had breached the Human Rights Code by placing in a newspaper an advertisement that gave citations for passages in the Bible. The passages condemn homosexual behaviour. Owens appealed. The Court of Queen's Bench agreed with the Tribunal. Owens appealed. In 2006, the Court of Appeal reversed the Tribunal's decision.

In 2005, the Saskatchewan Human Rights Tribunal fined Bill Whatcott, leader of a small group called the Christian Truth Activists, $17,500 because he distributed flyers that had controversial comments about homosexuals.

In 2006, the Muslim Council of Edmonton and the Supreme Islamic Council of Canada complained to the Alberta Human Rights and Citizenship Commission when Ezra Levant published cartoons that were featured first in Denmark in the magazine Jyllands-Posten. The Commission dismissed the complaint on 5 August 2008.

In December 2007, the Canadian Islamic Congress filed a complaint about hate speech against Maclean's, a magazine. The substance of the complaint was that Maclean's was publishing articles which insulted Muslims. The Congress filed its complaint with the Canadian Human Rights Commission, the British Columbia Human Rights Tribunal and the Ontario Human Rights Commission. The Ontario Human Rights Commission ruled that it did not have the jurisdiction to hear the complaint. The British Columbia Human Rights Tribunal dismissed the complaint 10 October 2008. The Canadian Human Rights Commission dismissed the complaint on 26 June 2008.

In April 2008, a group in Nova Scotia, the Centre for Islamic Development, filed a complaint with the police and with the Human Rights Commission of Nova Scotia over a cartoon published in the Halifax Chronicle-Herald. The matter is pending.

Iceland

In Iceland, the hate speech law is not confined to inciting hatred, as one can see from Article 233 a. in the Icelandic Penal Code, but includes simply expressing such hatred publicly:
"Anyone who in a ridiculing, slanderous, insulting, threatening or any other manner publicly assaults a person or a group of people on the basis of their nationality, skin colour, race, religion or sexual orientation, shall be fined or jailed for up to 2 years." (The word "assault" in this context does not refer to physical violence, only to expressions of hatred.)

New Zealand

New Zealand prohibits hate speech under the Human Rights Act 1993. Section 61 (Racial Disharmony) makes it unlawful to publish or distribute "threatening, abusive, or insulting...matter or words likely to excite hostility against or bring into contempt any group of persons...on the ground of the colour, race, or ethnic or national or ethnic origins of that group of persons." Section 131 (Inciting Racial Disharmony) lists offences for which "racial disharmony" creates liability.

France

  • France has made hate speech laws restricting the open expression of anti-Semitism, and ethnic bias in public, but it implies to guidelines in news journalism (i.e. newspapers and state-owned Television) in how to report (or be told not to discuss) those matters without creating social tension.

Singapore

Singapore has passed numerous laws that prohibit speech that causes disharmony among various religious groups. The Maintenance of Religious Harmony Act is an example of such legislation. In 2005, three men were convicted for hate speech under the Law of Singapore.

Brazil

In Brazil, according to the 1988 Brazilian Constitution, racism and other forms of race-related hate speech are "imprescriptible crime(s) with no right to bail to its accused". In 2006, a joint-action between the Federal Police and the Argentinian police has cracked down several hate-related websites. However, some of these sites have recently reappeared -- the users have re-created the same sites on American domain. The federal police have asked permission from the FBI to crack down these sites, but the FBI denied claiming that the First Amendment guarantees the right to any speech, even if it involves racism.

Sweden

Sweden prohibits hate speech, hets mot folkgrupp, and defines it as publicly making statements that threaten or express disrespect for an ethnic group or similar group regarding their race, skin colour, national or ethnic origin, faith or sexual orientation.

Finland

Finland prohibits hate speech, kiihotus kansanryhmää vastaan/hets mot folkgrupp, and defines it as publicly making statements that threaten or insult a national, racial, ethnic or religious group or a similar group.

Denmark

Denmark prohibits hate speech, and defines it as publicly making statements that threaten, ridicule or hold in contempt a group due to race, skin colour, national or ethnic origin, faith or sexual orientation.

Norway

Norway prohibits hate speech, and defines it as publicly making statements that threaten or ridicule someone or that incite hatred, persecution or contempt for someone due to their skin colour, ethnic origin, homosexual life style or orientation or, religion or philosophy of life.

Serbia

Serbia - Serbian constitution guarantees freedom of speech, but declares that it may be restricted by law to protect rights and respectability of others. Because of inter ethnic conflicts during last decade of 20th century, Serbian authorities are very rigorous about ethnic, racial and religion based hate speech. It is processed as "Provoking ethnic, racial and religion based animosity and intolerance" criminal act, and punished with six months to ten years of imprisonment.

Council of Europe

The Council of Europe has worked intensively on this issue. While Article 10 of the European Convention on Human Rights does not prohibit criminal laws against revisionism such as denial or minimization of genocides or crimes against humanity, as interpreted by the European Court of Human Rights, the Committee of Ministers of the Council of Europe went further and recommended to member governments to combat hate speech under its Recommendation R (97) 20. The Council of Europe also created the European Commission against Racism and Intolerance (www.coe.int/ecri ) which has produced country reports and several general policy recommendations, for instance against anti-Semitism and intolerance against Muslims.

Differing concepts of what is offensive

A central aspect of the hate speech debate is that concepts of what is acceptable and unacceptable differ, depending on eras in history and one's cultural and religious background. For example, personalised criticism of homosexuality (e.g., expressing the belief that homosexuality is "immoral" or harmful because it conflicts with a person's religious beliefs) is, to some, a valid expression of one's values; to others, however, it is an expression of homophobia and is therefore homophobic hate speech. Prohibition in such cases is seen by some as an interference in their rights to express their beliefs. To others, these expressions generate harmful attitudes that potentially cause discrimination.

Furthermore, words which once "embodied" negative hate speech connotations, such as 'queer' or 'faggot' against homosexuals, 'nigger' against people of African origin and 'bitch' against women, have themselves been "reclaimed" by their respective groups or communities, who attached more positive meanings to the words, so undermining their value to those who wish to use them in a negative sense. Significations differ following the context, as Judith Butler argues. However, others argue that such epithets demean and undermine these very individuals and so should qualify as hate speech. This point of view has been vehmently articulated by influential and well-known members of minority communities. As an example, the use of the word "nigger" by African Americans has been condemned by Bill Cosby, Rev. Jesse Jackson, Richard Pryor and Rev. Ben Chavis, Jr, among others.

Concepts of what qualifies as hate speech broadened in the late twentieth century to include certain views expressed from an ideological standpoint. For instance, some feminists consider jokes about women or lesbians to be hate speech. Recently, the Canadian government added sexual orientation to the list of relevant characteristics eligible for protection from hate speech. Not everyone accepts that there is a difference between classic forms of hate speech, which were incitements to hatred or even to physical harm, and the use of language that merely shows disrespect. Some discussions between politically right wing and left wing can be viewed as hateful, even though the language used by both sides is not normally classified as hate speech.

Attitudes towards controlling hate speech cannot be reliably correlated with the traditional political spectrum. In the United States, there is a general consensus that free speech values take precedence over limiting the harm caused by verbal insult. At the same time, some conservatives believe verbally expressed "discrimination" against religions such as blasphemy, or sometimes "morally incorrect" or "unpatriotic" speech which opposes deep-seated sociocultural or religious mores, and national interest, should be condemned or prohibited, while liberals feel the same way about verbal "discrimination" against identity-related personal characteristics, such as homosexuality and language of someone who happens not to speak English (in the US and Canada when it comes to bilingualism).

See also

References

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