Hate speech is defined as speech targeted at an individual or group which seeks to promote hatred on the basis of the victim’s race, religion, ethnic origin, gender or sexual orientation. To simplify, there are opponents and advocates of hate speech regulation. The advocates of hate speech regulation insist circumscribing the freedom of expression is necessary to make our society an ideal one. While the advocates, represented by most of European countries, became the main flow of international trends, the opponents of hate speech regulation consider a liberal society not to permit laws prohibiting any kind of speech, on the ground that any such prohibition is precluded by the right for free speech. The opponents are represented by the traditional stance of the United States. This paper highlights the concept of hate speech and addresses specific cases on how hate speech has been dealt with by legal mechanisms in different societies.
From March 17 through June 30, 2002, The Jewish Museum in New York presented Mirroring Evil: Nazi Imagery/Recent Art, a contemporary art exhibition in which 13 artists exhibited work reflecting their perception of the Holocaust. One of the artworks was belonged to Gary Simmons, displaying child-sized Ku Klux Klan outfits in the gallery. The public didn’t respond to the exhibition as something merely to enjoy. Condemnation was held on it, saying the exhibition results in trivializing the pain surrounding the Holocaust and degrading the dead and those who survived. This shocking exhibition drew attention to the necessity of regulating what is called ‘hate speech’, including ‘hate art’.
Now here come some questions: Is it appropriate to criminalize such expressions (including art, as art is speech in the US theory of freedom of expression) just because they are offensive to ‘the public’? Who decides the public in a liberal democratic society, and what should we do about the clash between the two constitutional values: human dignity and freedom of speech? To tackle these issues, this article addresses the concept and legal grounds of hate speech regulation and shifts of trends in the transatlantic cultures.
Ⅱ. Understanding the Background of Hate Speech Regulation
1. The Concept of Hate Speech
Although finding an exact boundary for the definition of hate speech is difficult, it is typically defined as speech targeted at an individual or group which seeks to promote hatred on the basis of the victim’s race, religion, ethnic origin, gender or sexual orientation. It implies a sort of attack on someone’s immutable characteristic. Hate speech is regarded as an offense to a specific individual/group’s human dignity. In the sense of protecting dignity by regulating hate speech, this human dignity does not indicate the internal dignity in the meaning of honor or self-esteem, but means a person’s basic entitlement to be regarded as a member of the society and not to be disqualified in any ordinary social interaction. This dignity is what hate speech attacks, and what the regulation laws aim to protect.
Termed “race hate” in the 1920s and 1930s and “group libel” in the 1940s, “hate speech” became the common terms in the 1980s as other characteristics, including sexual orientation, were included within its bounds. “In truth,” Jon B. Gould says, “Hate speech has been with us for years, almost from the moment that the first “others” got off the boat to a chilly reception.” For centuries African Americans have endured vindictive slurs from white Americans, and Jews too have suffered through several periods. Few, however, would ever have thought to label such treatment as “hate speech” at the time. Prejudice towards the minority was openly expressed, and the courts rarely intervened. Ironically, this means free speech and open discourse about hate speech may be considered as a privilege under the First Amendment.
2. Confrontation of Opinions on Regulating Hate Speech
To simplify, there are opponents and advocates of hate speech regulation. The two flows can be represented as the stance of the US and Europe. Before moving on to comparing the specific case studies that transatlantic countries dealt with, it is desirable to understand the basis of each opinion.
The advocates of hate speech regulation insist that an ideal society should not tolerate hate speech by law. An ideal society must be fully governed by a conception of justice, protecting people from hatred. The idea is simple: a good society cannot include sufficient rancor or division to generate hate speech. In his book, Waldron points out something that is in stake if hate speech is not regulated:
There is a sort of public good of inclusiveness that our society sponsors and that it is committed to. We are diverse in out ethnicity, out race, our appearance, and our religions. And we are embarked on a grand experiment of living and working together despite these sorts of differences. Each group must accept that the society is not just for them… When this assurance is conveyed effectively, it is hardly noticeable: it is something on which everyone can rely, like the cleanness of the air they breathe or the quality of the water they drink from a fountain.
Contrary to the advocates, the opponents of hate speech regulation consider a liberal society to be a place that does not permit laws prohibiting any kind of speech, on the ground that any such prohibition is precluded by our commitment to something like the First Amendment principle of free speech.
For instance, an enduring and distinctive feature of the US First Amendment jurisprudence in this area is a libertarian distrust of the state’s purposes in imposing viewpoint-based restrictions on speech intended as a contribution to public deliberation on any issue. Selective treatment of particular topics and/or communications would raise the prospect that governments could remove certain disfavoured ideas from public discourse altogether. The opponents of regulation mostly worry lest someday, it is possible that our speech or that belonging to persons with whom we agree that could be targeted.
Ⅲ. Different Policies on Hate Speech: A Transatlantic Comparison
1. The US as the Head of Protecting the Freedom of Expression
(1) Traditional Stance
The United States is notorious for the traditional stance of hostility towards hate speech regulation. The US provided exceptionally broad protection for hate speech, not against it. Compared to most other countries we will cover later in the paper, this kind of protection for hate speech has been viewed as an example of another “American exceptionalism”.
The US Supreme Court has so far refused to carve out another exception to the First Amendment protection for hate speech. While there exists an unprotected category of so-called “fighting words”, this category has been narrowly circumscribed since its inception in Chaplinsky , limiting fighting words to “those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In addition, any attempt by states to justify hate speech laws based on this doctrine has been rejected by the US Supreme Court. Another ground for punishing hate speech could be that it incites others to unlawful conduct. However, since Brandenburg, a stringent standard requires an intention to incite, likelihood that the advocacy will incite unlawful action, and that unlawful action be imminent.
Two cases effectively show what the US Supreme Court tried to protect until recent shifts has occurred. One of the most notorious hate speech cases is Skokie. In the 1970s, the “Nazi Party of America” planned a march in the Chicago suburb of Skokie. The Jewish community sought to prevent the march, but the most they got was an injunction against the wearing or display of the swastika. The Intermediate Appellate Court struck the injunction down, holding that the swastika was a symbol protected under freedom of speech and did not constitute “fighting words”. The Supreme Court refused to review these decisions.
Another case is R.A.V, in which the current doctrine is based on, being handed down by the Supreme Court in 1992. A group of white teenagers was convicted for burning a cross in the yard of a black family. The St. Paul city ordinance made it a crime to place on public or private property “a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender…”. The court struck down the ordinance as impermissibly viewpoint-based, holding that the First Amendment did not permit the government to impose special prohibitions on speakers who express views on disfavoured subjects.
These case laws seem to indicate the firm stance the US has been holding. Restricting expression using certain symbols that could be perceived as denigrating to a certain race, religion, etc, seems to have no space to stand. In the “Mirroring Evil” exhibition, the question of censorship or the withdrawal of governmental funds wasn’t even raised. However, recent cases may indicate this kind of traditional hostility against hate speech regulation is open to change.
(2) Shifting towards Regulating
Legal scholars in the US have been showing more and more concerns over the country’s extreme position against restriction on hate speech. Mari Matsuda, who is believed to be the leading proponent of the anti-hate speech school, raised concerns over this position in her 1989 article “Considering the Victim’s Story”. While their theories have so far remained in the academic world, the rejection by the “real world” might not last forever.
In its 2003 opinion Virginia v Black , the Supreme Court upheld a Virginia cross burning statute as facially constitutional under the First Amendment. Three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. In this case, the Court struck down that statute to the extent that it considered cross burning as prima facie evidence for the intent to intimidate. The Court found that Virginia’s statute against cross burning is unconstitutional, but cross burning done with an intent to intimidate can be limited because such expression has a long and pernicious history as a signal of impending violence. The Court did, however, strike down the provision in Virginia’s statute which stated “Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons,” holding that the provision was facially unconstitutional because of its “indiscriminate coverage.” The state, therefore, must prove intent to intimidate.
The decision attracted enormous attention, because it might have opened a breach in the unlimited First Amendment protection for hate speech. Questions were raised about whether the United States was on the road to reversing its long held tradition of absolute protection of hate speech.
Some legal scholars have interpreted the decision as evidence that the judiciary has become more amenable to the regulation of hate speech.
Under scrutiny was a Virginia statute that made it a crime to burn a cross with the intent to intimidate. Surprisingly, the Supreme Court, after reciting the long and heinous history of the Ku Klux Klan, upheld the law as facially constitutional. A divided court distinguished R.A.V., arguing that the Virginia law was healed of the defective viewpoint discrimination in R.A.V. that required a “racial animus”. Cross burning would not only be punishable because of an expressed message of racial hatred, but for any other motive the cross burner could have. However, no one can deny that cross burning is criminalized solely because of the message it conveys. In rendering the opinion, Justice O’Connor referred to cross burning as “a symbol of hate’ that ‘carries a message in an effective and dramatic manner” and has a “long and pernicious history as a signal of impending violence”.
However, one of the major flaws of the opinion is that the court didn’t wholly explore the meaning of “intimidate”, leaving it unclear. The decision refers to a “real threat”, but “intimidate” is much broader. The offended people seeing a wall full of Hitler portraits in the “Mirroring Evil” exhibition could arguably claim that they were “intimidated”, and perhaps this is precisely the artist’s aim.
Even though Virginia v Black alone may have limited reach only, the First Amendment advocates have expressed concerns since legislators might try to use the intimidation rationale from the opinion to outlaw other forms of hate speech. Whether this shift in the trend of protecting the First Amendment will lead into a strong regulation on the language or symbols people could use is something to keep an eye on.
2. Europe Compared: Hostility towards Hate
In Europe, the situation is quite different from the United States and many countries have enacted hate speech regulations. These regulations, which seemed so objectionable in the US, are considered acceptable, and even necessary in Europe countries. This raises questions on how the emphasis on different values affects regulating policies on hate speech. There is a vast literature that traces the origins back to the European trauma with the horrors of the fascist period and the abuse of democratic freedoms. As a consequence of such experience, European countries believe that these freedoms have to be weighed against the value dramatically assaulted during the World War: human dignity. Germany and France are good representatives of hate speech regulation advocates.
Germany offers a good example of contrast with the American law regarding hate speech. It is not surprising that the first article of the German Constitution, enacted after the Second World War, provides that “the dignity of man is inviolable. To respect and protect it is the duty of all state authority”. While Article 5 of the German Constitution guarantees the freedom of opinion and speech, it makes that freedom subject to limitations. Being preoccupied with preventing the recurrence of totalitarianism and the rise of extremist groups, German law made exceptions to speeches relevant to violence, hate speech, group defamation and incitement to hatred. To specify, denigrating speech about race, ethnicity, gender and physical appearance, among other categories, is outlawed. Article 131 of the German Criminal Code, titled “Representation of violence”, prohibits writings “which incite to racial hatred”. Writings are understood very broadly and include “audio and video recording mechanisms, data storage mechanisms, recordings, and other representations”. The full text of Article 131 of the German Criminal Code states:
(1) Whoever 1. Disseminates, 2. Publicly exhibits, posts, presents, or otherwise makes accessible, 3. Offers to, leaves with, or makes accessible to a person below the age of eighteen, or 4. Produces, subscribes to, supplies, stocks, offers, announces, recommends, undertakes to import into, or export out of, the territory in which this law applies, in order to use them, or pieces derived from them, in the manner indicated in 1 to 3 above, or to enable others to do so, writings that incite to race hatred or describe cruel or otherwise inhuman acts of violence against humans in a manner which glorifies or minimizes such acts of violence or represents the cruel or inhuman aspects of the occurrence in a manner offending human dignity, shall be punished by a term of imprisonment of up to one year or by a fine. (2) The same punishment shall apply to any person who disseminates a presentation with the contents indicated in paragraph 1 by means of broadcasting. (3) Paragraphs 1 and 2 are not applicable when the act is in the service of reporting on current events or history.
Of even more concern is Article 86a of the German Criminal Code, which forbids the “use of signs of unconstitutional groups”. The result is that the mere distribution or use in public of Nazi flags, insignia, uniforms, slogans and swastikas constitutes a criminal offence. Such a naked prohibition on the use of symbols is particularly dangerous for hate art, since neither effect on the viewer nor intent of the artist is required. These symbols are thus presumed to speak for themselves: symbols of hate.
Would the “Mirroring Evil” exhibition have been prohibited under such legal framework? As mentioned above, there has been no legal controversy in the US. The plain reason is that the exhibition simply wasn’t held in Europe. The hostility towards hate speech in Europe could plausibly create a chilling effect on those artists who want to appropriate hate symbols and use them in their art. In any case, the reach of German hate speech laws appears broad enough to cover the controversial works in “Mirroring Evil”. Displaying a burning swastika would be a flat violation of Article 86a of the German Criminal Code. Other works could be problematic under Article 131 of the German Criminal Code. For example, when the exhibit is contextualized, it is clear that no such incitement is intended. The photograph of the Diet Coke-drinking artist amidst starving Jews might well be qualifies as “writing inciting to hatred”. Moreover, since the law defines “incitement” very broadly, the mere appearance that seems to trivialize and minimize the Holocaust would be enough for the protesters against “Mirroring Evil”.
Could the exhibition be saved because of its status as art? Article 131 of the German Criminal Code provides an exemption when the writings are “in the service of reporting on current events or history”, which was intended to allow reproductions of Hitler’s Mein Kampf, with proof of explicit academic interest. A general exception for the arts, however, is not provided. Still, Article 5 of the German Constitution explicitly refers to freedom of art and, unlike the general freedom of expression, this provision is not qualified by limitations.
In France, freedom of speech is also expressed in more limited terms where hate speech is concerned. The difference with the US resurfaced in a concrete clash in the French Yahoo! case, resulting in a legal battle lasting from 2001 to 2005. As a result of making available Nazi memorabilia on its online auction website, Yahoo! ran afoul of French law, under which it is a crime to “display, exchange, or sell Nazi paraphernalia or Third Reich memorabilia.” Yahoo! was then sued by a French non-profit organization against anti-Semitism. Though Yahoo! lost the case in France, the US District Court of Northern California concluded that enforcement of the French order by a US court would be a clear violation of Yahoo!’s First Amendment rights to free speech. If Yahoo! had been selling online views of obscene images, rather than World War II collectors’ items, the court may not have arrived at the same decision.
Ⅳ. Conclusion: Weighing between Human Dignity and Free Expression
The issue of setting boundaries on expressions based on hatred towards immutable characteristics is what the post-modern, diversity-inclined world should keep an eye on. It is not all about simply prohibiting offensive displays, since fundamental issues surrounding the First Amendment: freedom of speech is in the very soul of the controversy.
While the opponents of circumscribing any kinds of expressions, including hate speech, represented by the traditional stance of the U.S., argue that the idea of being able to express their hatred for something they disagree is what a “real” diverse society should protect, it seems inevitable to regulate hate speech at the status quo. The fact is, it may be a haste to define our society as a perfect democracy of respecting every individual as an equal. It is undeniable that glass ceilings for people not in the mainstream clearly exist, meaning the society should fight for the ideal democracy. Regulating hate speech and trying to protect specific groups represent that kind of fight for a better society.
However, carefully approaching the subject of hate speech regulation, despite the necessity for hate speech regulation growing in the international world, when circumscribing hate speech, let us keep in mind not to trivialize the core idea of democracy: freedom to think and express. Dealing with ideas out of the mainstream is how democracy activates and develops itself. As Voltaire said, “I might disapprove of what you say, but I will defend to the death your right to say it”.