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Hate speech / Offence / Incitement

A graphic guide to human rights norms.
by

Cherian George

on 11 April 2017

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Transcript of Hate speech / Offence / Incitement

INCITEMENT
CASE BY CASE
Societies that wish to preserve free speech as much as possible would consider several criteria when deciding whether and how to act against a case of hate speech.
Severity of the expression
The form of the expression violates civic norms. The same ideas could have been expressed in a less extreme way.
It is an understandable indiscretion in the context of a highly charged debate.
Intent of the speaker
The speaker intended to cause harm to the targeted group.
The offence was inadvertent, or unavoidable — like a news report quoting hate speech to raise the alarm.
Status of the speaker
The speaker is prominent and influential, and thus able to cause harm with his irresponsible speech.
The speaker is a relatively minor figure who can be safely ignored.
Reach of the speech
The speech is in front of a large audience or widely disseminated, thus amplifying the possible harm.
The speech is confined within small circles, such as consumers of avant garde art.
Climate around the speech
Institutions are weak and tensions high; the target group is known to suffer from discrimination.
There is a strong culture of tolerance that will push back against hate speech.
Risk of harm
The harm is highly probable and the danger is imminent, leaving no time for counter-speech to neutralise hate.
The risk is just a possible worst case scenario.
Less reason to restrict speech
More justification for restricting speech
HATE SPEECH
It's widely accepted that certain kinds of hate speech don't deserve free-speech protections; the state is allowed — even obliged — to prohibit such speech. But there are disagreements over how exactly to apply this broad principle. Here's an introduction to the topic.
DEFINITION
Hate speech is expression that vilifies people based their being identified with a certain social group, thus instigating harms against them.

Most so-called hate speech laws actually avoid the term because it is prone to misunderstanding. They instead use the more precise term incitement, which makes it clear that the law's concern isn't insult as such, but the call to action contained in hate speech.
OFFENCE vs INCITEMENT
There is a critical distinction between speech that offends and that which incites.

International human rights law and the domestic laws of liberal democracies prohibit incitement to different degrees — but not offensive speech as such. For a mix of reasons, less democratic countries are willing to prohibit offence.
Jesus Christ Superstar
was banned in South Africa.
Welcome to Buddha Bar? Not in Sri Lanka.
Satanic Verses
earned Rushdie a death sentence.
Academic book withdrawn from Indian market.
Pussy Riot jailed for insulting Orthodox Church.
Using the law to protect people's beliefs or feelings usually backfires.
States must prohibit incitement to hatred because it threatens people's right to live as equals in society.
Provocative books, movies and other cultural products may prompt demands for censorship and punishment by groups that take offence. The offence may be deep — and to some, unbearable. Governments may come under great pressure to protect a community's honour and mete out retribution for its wounded feelings.
PUBLIC ORDER?
International law (Article 19 of the ICCPR) permits states to restrict free speech on public order grounds. In many democracies, hate speech laws are couched in terms of the threat that such speech poses to public peace.
But societies should not blame violent outrage on provocative expression while excusing people who choose to react violently to that expression. Doing so will encourage intolerant groups to hype up their outrage as a strategy to silence their critics.
Less reason to restrict speech
More justification for restricting speech
FREE SPEECH
Article 19 of the International Covenant for Civil and Political Rights protects freedom of expression—but with specific limitations that include respecting the rights of others.
Restrictions are permitted but must pass a
3-part test
. Any restriction should be:
1.
According to clear
laws
, not arbitrary or vague.
2.
For a
legitimate
purpose as specified in the ICCPR. Public order and respecting others rights
are
legitimate purposes. Harmony and protecting people's beliefs or feelings are
not
.
3. Necessary
and proportionate—using the least restrictive measure to achieve the task.
Offence is subjective. Opportunists can exploit insult laws against their opponents by manufacturing outrage at perceived offence.
Different religious beliefs are often mutually offensive. Allowing people to ban what offends them destroys others' freedom of religion and belief.
The cost: equality and peace
Opponents of the Jakarta governor seized on Indonesia's blasphemy law in the run-up to gubernatorial elections — a classic case of how offence laws backfire.
TYPES OF INTERVENTION
Hate speech often provokes calls for government action. However, the response should not be left up to governments alone. Media and civil society can play a key role in countering hate and cultivating a culture of tolerance. Often, what these groups need from the state is more freedom of speech and protection from harassment and intimidation when they stand up to powerful forces of intolerance.
POLICY
States can use the cultural and educational resources at their disposal — including public broadcasters — to take sides in the battle between tolerance and intolerance.
State interventions
POLITICAL
Political leaders should be using the status of their own office to promote tolerance, respond to hate speech, and avoid even symbolic moves that confer legitimacy on intolerant groups.
CIVIL LAW
Even when the force of law is required, not all hate speech offences need to be criminalised. Civil remedies include requiring corrections or the right of reply.
CRIMINAL LAW
Only the most extreme and harmful forms of hate speech need to be criminalised.
DEFINITION
Incitement to hatred: statements about a racial or other identifiable group that create a real risk of objective harm against its members.
The Genocide Convention requires states to punish as a criminal offence the “direct and public incitement to commit genocide”.
violence
genocide
“You have to kill [the Tutsis], they are cockroaches.”
Hate speech tilled the ground for the Rwandan Genocide, the Nazi Holocaust and other ethnic cleansings.
This 4-minute video is about hate propaganda in the Rwandan genocide.
“kill the jew, burn down a synagogue today”
Aryan Strike Force website. Two ASF leaders were convicted for inciting racial hatred under UK law in 2010.
“Rise up to exterminate this race of bad people.”
Media bosses behind such calls were jailed by the International Criminal Tribunal for Rwanda.
All democracies prohibit incitement to violence. They apply different thresholds. More liberal societies, the US in particular, don't consider
advocacy
(saying you are in favour of violent solutions) to amount to illegal incitement.
discrimination
Do you want more or fewer Moroccans in this city and in the Netherlands?
We'll take care of that!
Far Right Dutch politician Geert Wilders was convicted for inciting discrimination for saying this at a political rally.
International human rights law requires states to prohibit incitement to hatred...
International Covenant on Civil and Political Rights, Article 20 (2)
"Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."
The US differs. The state fights
acts
of discrimination but cannot suppress viewpoints that
advocate
discrimination—it can only restrict incitement to imminent violence.
German law is more sensitive to the long term harms of hate speech. The state prohibits collective insult that threatens people's honour and human dignity.
In this 7-minute interview, philosopher Jeremy Waldron explains why he favours a more European approach over current US doctrine.
SOME CONTEMPORARY DEBATES
1. What obligations do internet intermediaries have to regulate hate speech on their platforms?

2. Of all kinds of hate, racism is treated the most seriously. Should religious insult be treated like racist speech?

3. In not legally protecting citizens' racial and religious feelings, are liberal states underestimating the psyhological harms in hate speech?

4. Has the Left been guilty of overkill in its battles against stigma, resulting in a reaction against "political correctness"?
Thank you for your attention.
For more on this topic, please visit www.hatespin.net


CHERIAN GEORGE, 2017

and why it needs to be stopped
INCITEMENT TO...
INCITEMENT TO...
INCITEMENT TO...
The cost: free speech
Offensive speech
Prohibiting speech that offends makes the right to free expression meaningless, since speech that does not offend anyone needs no protection.
Human progress is not possible if people are stopped from challenging prevailing ideas and beliefs, including in ways that shock orthodoxy and violate convention.
FREE SPEECH
Finding a balance
IT'S COMPLICATED
Every society started out trying to quash offence, through laws like blasphemy and seditious libel. The
traditional approach
still persists in many countries, but the
modern human rights approach
treats offence as something to be tackled through non-coercive means like counter-speech and social sanctions.
A historic shift
OFFENCE
The folly of banning
So much for INCITEMENT.
What about expression that OFFENDS?
Full transcript