Free Speech: European v. U.S. Model

[broncofan]

In some European countries, someone posting on his computer "group x are subhuman" has violated a law. In the U.S. it would not violate a law and we cannot even pass a law that would proscribe it. The only things that can be made illegal are actions that in some way elicit an immediate violent response, without getting into the technical differences between true threat, incitement to violence, and fighting words. This is to say that hate speech as it is traditionally defined is mostly allowable in the U.S. and prohibited in many places in Europe.

On hate speech generally https://en.wikipedia.org/wiki/Hate_speech

The International Covenant on Civil and Political Rights (ICCPR) states that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law

Who is right?

This becomes more relevant when we see Nazis on the street, bc some countries legally discourage many of their activities. Is it easy enough to parse that which might be relevant discussion from that which is just hate-filled bile that increases the threat to minorities?

I'll give my personal view first. I would advocate something in between the two systems. Any speech that tends to denigrate a group but at least looks like a bonafide attempt at discussion would be legal. For instance, although Holocaust denial is usually just a pack of lies and has the intent to spread hatred, it also takes the form of a disingenuous argument that its proponent is only after the truth. Such a defense would apply to anything that appears to be a bonafide argument even if its real motive is more sinister because there's too great a chance that its proponent is trying to say something that has some value.

But the most direct and incendiary views, those proposing violence even in the abstract, or asserting the inferiority of one group, or involving epithets, would be actionable. It would basically be the European system but with a defense that someone is making a bonafide political/historical argument that could be affirmatively raised by the speaker.

Probably not a popular argument among Americans left or right, but there you have it. Anyone else, which do you prefer?

[Stavros]

My first and somewhat superficial response is that free speech differs so much across Europe that it would take some time to note the differences. There are good reasons why holocaust denial is illegal in 16 countries across Europe, but there must also be a distinction with the USA where a written Constitution has established a political system on the basis of Rights, where in Europe there has often been a confusing merger between Rights and Duties, the one proscribed by law, the other through a predominantly Christian culture with a legacy of close relations between Church and State -indeed, precisely the kind of relationship that the Revolutionaries in America wanted to avoid.

This means that law has evolved to reflect changes in public attitudes, but one notes that for many years the prohibitions on free speech, in Britain for example, had a moral as well as a legal argument, where the legal arguments were designed to protect the State and the ruling class of the State, specifically the monarchy, the church and the government. This became acute following the French Revolution and the fear of insurrection on the French model, yet one can hardly, in historical terms, describe the USA as being superior in the free speech department for much of its history.

Some examples spring to mind: a person can, in a public debate, argue against the monarchy and in favour of a republic but cannot suggest the monarchy be removed, as to do so would be or could be taken as an invitation to sedition. The wording would have to be subtle, for example, arguing that the monarchy should be the subject of a referendum, but that is as far as it goes.

A second example is more practical, but also exhibits the limits of the written law when confronted with day-to-day speech. I once walked into a supermarket -on a Sunday- and ahead of me at one of the counters were two men, one of whom was wearing a jacket on the back of which, in white letters was written: Jesus is a Cunt. I was offended by it, but did nothing about it, but did ask a policeman sometime later about this, and he told me this is an offence under Section 5 of the Public Order Act, in the sense that had someone confronted him about it and a fight ensued, then public order and the law would have been broken. The visible word 'Cunt' was most significant, given that the man might have claimed Jesus was a Mexican he met in a bar who trod on his foot and not the Messiah, because the public display of some words is considered offensive to the point of being illegal, but unless a policeman sees it and acts, a member of the public must take action to enforce the law. In football grounds every weekend, racist slurs are shouted at Black players which ought to result in those people being thrown out of the ground, but this rarely happens. So we have laws on free speech which limit the right to what can be said on the basis not so much that it is hate speech, but that it has the potential to disrupt public order. I am not sure if laws on hate crimes include speech acts falling within the public order laws, I will have to check on that.

A third example relates free speech to concepts of obscenity, and came to light with the death of Peter Hall in the last week, a man who had a truly profound impact on the arts in Britain. As well as being the champion of a publicly funded arts scene, including theatre, opera and ballet, art galleries and so on, Hall was a pioneer in the theatre, producing at the age of 24 the first English performance of Waiting for Godot, uncut in a members only theatre, but a censored version when it transferred to a public theatre where the Lord Chamberlain cut out words like 'erection'. All plays were subject to the Lord Chamberlain's blue pencil -until 1968- and in some cases plays were banned from public performance, for example, Arthur Miller's A View from the Bridge -because one kisses another- and Tennessee Williams' Cat on a Hot Tin Roof. When Hall put on the Williams play in 1958 it had to be presented at a members only theatre, thus exposing the absurdity of members being allowed to be morally corrupted whereas the same people were protected from it by not being able to buy tickets at a public theatre. There is a good article on it here-
https://www.theguardian.com/stage/2012/sep/30/cat-on-a-hot-tin-roof

Free speech today is heading to some sort of showdown because of the way in which the internet has levelled alll the fields on which free speech is active, from the anonymous abuse and threats hurled on a daily basis at MPs, to the campaign against political correctness which seeks to enable anyone who wants to, to use N and related words that are offensive and intended to be offensive. But also because governments across the world regard democracy as a threat to the consolidation of power in a few hands, and seek as many ways as they can to either shut down the internet, or control it, indeed, on this it seems the President of the USA is on the same page as Vladimir Putin, Recep Erdogan and the Chinese Communist Party.

A not very clearly stated response but the best I can do twelve after midnight.

[blackchubby38]

I believe speech, a long as it doesn't lead to a clear and present danger, should be protected under the First Amendment. That includes hate speech, speaking out against the government, or words that some would consider offensive. Do I like seeing Neo Nazis and White Supremacists marching down the street? No. But I wouldn't feel comfortable living in a country that infringes on their to speak and/or protest. Out of fear that the same thing will be done to me if the wrong people were to come to power.

I also don't like the idea of a segment of a community deciding what is appropriate speech. Its one of the reasons why I'm against students on campuses deciding who can and can't have a speaking engagement. You want to peacefully protest someone because you're against their views, be my guest. But resorting to violence and trying to silence those who have differing viewpoints from you is not the ideals that this country was founded on.

Now if those words are used to incite violence or are the precursor to something sinister, then all bets are off. I would want limits placed on that speech. Whether through law enforcement, the court system or self defense.

[broncofan]

My first and somewhat superficial response is that free speech differs so much across Europe that it would take some time to note the differences.

A second example is more practical, but also exhibits the limits of the written law when confronted with day-to-day speech. I once walked into a supermarket -on a Sunday- and ahead of me at one of the counters were two men, one of whom was wearing a jacket on the back of which, in white letters was written: Jesus is a Cunt. I was offended by it, but did nothing about it, but did ask a policeman sometime later about this, and he told me this is an offence under Section 5 of the Public Order Act, in the sense that had someone confronted him about it and a fight ensued, then public order and the law would have been broken. The visible word 'Cunt' was most significant, given that the man might have claimed Jesus was a Mexican he met in a bar who trod on his foot and not the Messiah, because the public display of some words is considered offensive to the point of being illegal, but unless a policeman sees it and acts, a member of the public must take action to enforce the law.
I don't think the first point of yours is superficial as I might not have been specific enough to establish there is a dichotomy. But to the extent there's a difference your explanation about rights based laws v. rights and duties is very helpful. I should probably find a race-based prosecution in a specific country in Europe that I think could not go forward in the U.S. and possibly not in Britain. One possibility I think relates to internet search engines that have gotten in trouble for not censoring activity in France that I'm almost certain would not be illegal in the U.S.

Your example about the offensive jacket brings to mind a case we had here called Cohen v. California that involved a man wearing a jacket that said "fuck the draft" into a courtroom. It violated a law barring offensive speech and the idea behind it was that it could disturb the peace. The court held that the law violated our first amendment though it was a close case.
https://en.wikipedia.org/wiki/Cohen_v._California

[broncofan]

Alright this isn't much in the way of diligent research but I found this successful case in France.
https://en.wikipedia.org/wiki/Hate_speech_laws_in_France#cite_note-11

"In 2007, the Supreme Court of Appeal considered a remark by a comedian during an interview published in the journal Lyon Capitale. The comedian said that Jews are a sect, a fraud. The court said the remark was an insult to a group defined by their place of origin."

I wasn't able to read the linked article within the wikipedia because I don't speak French. But this is far beyond what would ever be conceivably illegal in the United States. In fact, even given what I said above about fashioning some in between option I don't think this type of insult should be illegal. This doesn't even seem to advocate discrimination or violence but just seems like an insult, an anti-semitic one, but a mere insult.

[trish]

It’s a difficult issue. As laws go I’m comfortable with the U.S. protections of speech.

As social (or community) proscriptions against various forms of speech go I’m largely for them. It seems to me businesses have the ‘right’ to fire workers who use language or express opinions on the job that is demonstrably bad for business (e.g. firing a sales person who offends customers). The same goes for hiring (e.g. it is appropriate for a university not to hire a geologist who subscribes to the theory that Earth is only a few thousand years old). I’m also good with certain segments of the community who shun those who use language they deem to be inappropriate (e.g. I don’t expect to be received very well in ‘polite society’ if I use vulgar language - and that’s okay. The cliche is that free-speech doesn’t mean you can speak without consequences; after all, the whole point of speech is to bring about consequences).

So called ‘Political Correctness’ (especially when it is not inscribed into an institution’s official policy) is, as I understand it, mostly just a modern form of common courtesy (which is an essential ingredient for the rational exchange of ideas). Shouting down a speaker or using violence to close down a speaking engagement is obstruction - the antithesis of courtesy and certainly not an extension of political correctness.

[Stavros]

I believe speech, a long as it doesn't lead to a clear and present danger, should be protected under the First Amendment. That includes hate speech, speaking out against the government, or words that some would consider offensive. Do I like seeing Neo Nazis and White Supremacists marching down the street? No. But I wouldn't feel comfortable living in a country that infringes on their to speak and/or protest. Out of fear that the same thing will be done to me if the wrong people were to come to power.
I also don't like the idea of a segment of a community deciding what is appropriate speech. Its one of the reasons why I'm against students on campuses deciding who can and can't have a speaking engagement. You want to peacefully protest someone because you're against their views, be my guest. But resorting to violence and trying to silence those who have differing viewpoints from you is not the ideals that this country was founded on.
Now if those words are used to incite violence or are the precursor to something sinister, then all bets are off. I would want limits placed on that speech. Whether through law enforcement, the court system or self defense.

This post offers an eloquent statement of the problem, but for that reason begs more questions. I don't disagree with your main points, but how do you, and in the legal sense Broncofan asked the original question- use the law to combat something that by its nature may be a 'passing comment' that someone on a bus makes with regard to another person? Is it just an 'innocent' or 'spur of the moment' remark that should be accepted and not lead to a fight or a riot?

The problem for me is that some people are deliberately being provocative, whether they know they have the protection of free speech or not, and in some cases being deliberately provocative not just for the sake of it, but because they want a form a political change that suits their agenda. It is not the same as the dilemma we have which is that free speech means we must accept that there is a right to be offended, but to accept that as part of the contract with government and the law. I must accept the right of someone to tell me , in public that I am a 'worthless liar and a fraud' but do not have to accept the additional 'and I will burn down your house with you inside it', this conforms to your point about threat and danger wrapped up in free speech.

In the US a clear example of the problem can be found with the claims, made on Infowars and other websites, that the massacre at Sandy Hook was a hoax. At what point does free speech allow people to make such offensive and outrageous claims cross a line drawn by moral decency if not the law, and is the law impotent if it cannot deal with it? I believe prosecutions so far have not challenged the right to claim Sandy Hook is a hoax, but threats made to individuals in Connecticut that broke the law. The dilemma thus puts a moral argument at odds with the law.

But it goes further, because there is no innocent claim in Infowars, but a long term intention to change the way the US is governed, as its chosen conspiracy theories are designed to weaken -not loyalty to the State, but obedience to government in the state. The image of some golden age in the past when there were little or no taxes and minimal government is used to condemn the present powers of Federal government and its tax-raising powers, but is provocative 'free speech' the way to do it? And yet this free speech has led to prosecutions based on threats of violence. So you could say the system works.

The problem as I see it that is common in the US as well as Europe is that people are using free speech to its limits, in some cases beyond it, to be provocative, and because they want change, though they may not know what that change actually could result in. Has the internet under the cloak of anonymity enabled people to express their rage and frustration in abusive, even frightening language? Would they do the same if there was no anonymity? And more pertinent, are we reaching a point where the inability to control what is 'said' on the internet will lead to government taking the decision to do just that, and control it on the basis that there are limits to free speech?

[Stavros]

Right on cue there is an article on free speech in today;s Guardian, using as its debating point an attempt by Milo Yiannopoulos to organise a public debate at the University of California -Berkeley in which he will talk along with Steve Bannon, Ann Coulter "and friends" -indeed “everyone who has been prevented from speaking at Berkeley in the last 12 months" even though "the university administration has complained that deadlines for booking venues have been missed and fees remain unpaid. Yiannopoulos calls it a “coordinated bureaucratic mission to silence conservative voices”.

-But has there been an attack on free speech as the Conservatives claim? The author of the article disagrees-
It’s fine to take issue with some of the methods of opposition. Just don’t call this a “crisis of free speech”. None of these individuals have any difficulty at all getting their views across. Steve Bannon (https://www.theguardian.com/us-news/2017/aug/18/steve-bannon-white-house-trump-administration) was the chief strategist of the most powerful leader in the world. Every Coulter book (In Trump We Trust: E Pluribus Awesome! (http://www.politicususa.com/2016/08/24/ann-coulters-trump-book-worse-imagined.html); ¡Adios, America!: The Left’s Plan to Turn Our Country Into a Third World Hellhole (http://www.thedailybeast.com/coulter-hates-the-browning-of-america)) has been a bestseller. Yiannopoulos, despite recently inflicting on himself the kind of scandal (https://www.theguardian.com/us-news/2017/feb/21/milo-yiannopoulos-resigns-breitbart-pedophilia-comments) that would have buried most careers, enjoys the continuing support of more than 2 million followers on Facebook.

And yet they weep and gnash their teeth. Students and administrators use “Nazi tactics” to silence Coulter, she claims. “They don’t want free speech, they want to win – it is a fascistic view.” “The greatest risk to the American republic is from the unprecedented assault on free speech," intones Yiannopoulos. But in the US – and Britain, where spurious complaints about censorship have also surfaced – free speech has never been so secure.

The full article is here-
https://www.theguardian.com/commentisfree/2017/sep/19/free-speech-crisis-milo-yiannopoulos-campus-freedom-expression

[broncofan]

Out of fear that the same thing will be done to me if the wrong people were to come to power.

Now if those words are used to incite violence or are the precursor to something sinister, then all bets are off. .
I think everyone myself included can accept the reasonableness and basic correctness of what you say, but I want to push back on a couple things because I think there are some reasons we're tempted to move beyond the basic exceptions to free speech which address face to face speech that looks more like conduct or a breach of peace.

The first sentence of yours that I left in some ways speaks to the slippery slope problem we have with speech. If someone who is a Nazi can be punished, why can't someone call me a Nazi and punish me? If we punish speech that dehumanizes people, then who will be the arbiter of what is dehumanizing? But in every other area we have judges who are the arbiter of any prohibition and we allow them to draw lines because we assume some lines are better than no lines. The difference with speech is that once you begin prohibiting it, you might take away some means by which people can push back against the prohibition to begin with. Have you ever tried to speak on someone's behalf who is accused of libel while carefully avoiding repetition of the putative libel? It does feel like you're shackled.

But I suppose the question I have for that first sentence is, could anyone acting in good faith ever think you were running afoul of such a speech prohibition? If so, that speaks to a problem that inheres in our use and understanding of language. If they could only act in bad faith to prosecute you under such a law, then they are already acting corruptly. Probably good we protect against both.

Finally I want to question you about "precursor to something sinister". You might mean for instance, someone in the planning stages of violence, which would be criminal conspiracy to commit a crime in this country and is unprotected. Or you might be talking about the most extreme type of speech that France for instance would prohibit and we would not. People talking about discrete groups as thought they're animals, and in heavy-handed ways discussing how hypothetically it would be nice to kill or deport all of them.

Now this last example is a step further down the road than a face to face threat or incitement. But it is a precursor to something sinister in my view. I think we're concerned about prohibiting it because we don't trust ourselves at all to know when to stop, as cliche as that sounds.

[blackchubby38]

I think everyone myself included can accept the reasonableness and basic correctness of what you say, but I want to push back on a couple things because I think there are some reasons we're tempted to move beyond the basic exceptions to free speech which address face to face speech that looks more like conduct or a breach of peace.

The first sentence of yours that I left in some ways speaks to the slippery slope problem we have with speech. If someone who is a Nazi can be punished, why can't someone call me a Nazi and punish me? If we punish speech that dehumanizes people, then who will be the arbiter of what is dehumanizing? But in every other area we have judges who are the arbiter of any prohibition and we allow them to draw lines because we assume some lines are better than no lines. The difference with speech is that once you begin prohibiting it, you might take away some means by which people can push back against the prohibition to begin with. Have you ever tried to speak on someone's behalf who is accused of libel while carefully avoiding repetition of the putative libel? It does feel like you're shackled.

But I suppose the question I have for that first sentence is, could anyone acting in good faith ever think you were running afoul of such a speech prohibition? If so, that speaks to a problem that inheres in our use and understanding of language. If they could only act in bad faith to prosecute you under such a law, then they are already acting corruptly. Probably good we protect against both.

Finally I want to question you about "precursor to something sinister". You might mean for instance, someone in the planning stages of violence, which would be criminal conspiracy to commit a crime in this country and is unprotected. Or you might be talking about the most extreme type of speech that France for instance would prohibit and we would not. People talking about discrete groups as thought they're animals, and in heavy-handed ways discussing how hypothetically it would be nice to kill or deport all of them.

Now this last example is a step further down the road than a face to face threat or incitement. But it is a precursor to something sinister in my view. I think we're concerned about prohibiting it because we don't trust ourselves at all to know when to stop, as cliche as that sounds.

Precursor to something sinister=Neo Nazis start vandalizing people's business and property after their march was over.

[broncofan]

Precursor to something sinister=Neo Nazis start vandalizing people's business and property after their march was over.
I think that's either the criminal act itself or conspiracy to commit the criminal act which is firmly prohibited everywhere.

[broncofan]

In the US a clear example of the problem can be found with the claims, made on Infowars and other websites, that the massacre at Sandy Hook was a hoax. At what point does free speech allow people to make such offensive and outrageous claims cross a line drawn by moral decency if not the law, and is the law impotent if it cannot deal with it? I believe prosecutions so far have not challenged the right to claim Sandy Hook is a hoax, but threats made to individuals in Connecticut that broke the law. The dilemma thus puts a moral argument at odds with the law.

But it goes further, because there is no innocent claim in Infowars, but a long term intention to change the way the US is governed, as its chosen conspiracy theories are designed to weaken -not loyalty to the State, but obedience to government in the state.
The hoaxes peddled on infowars are a great example and categorically different from others. It's not defamation because in many cases doesn't regard an individual and his/her reputation. It's often not hate speech, or incitement as it's legally defined, or a threat.

It involves pervasive falsehoods palmed off as facts that cause deep emotional harm to people in the service of a political agenda. It can in an attenuated way lead to violence but it is much more remote than the law involves itself in preventing. It invariably leads to harassment though it doesn't call for it.

It definitely crosses a line of moral decency, but the law is pretty much impotent. Or we just accept that it's impotent because the greater harm is deciding that words alone cause a societal harm worth punishing. Or that deciding the objective truth of something is not for a legislature.

I think we all have seen specific forms of speech that almost objectively have no value and cause more harm than good. We do prohibit defamation, because we deem it's possible to decide that some things are false and injurious to a person. But we are careful to make sure it's limited to that person and his reputation.

[Stavros]

To clarify something I put in my first post, with regard to the UK -Public Order law was relevant to aspects of free speech where it might incite disorder, but the Public Order Act of 1986 was amended by a clause in the Criminal Justice and Public Order Act of 1994 of which the relevant clause states

A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he— (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting [see amendment below], thereby causing that or another person harassment, alarm or distress

The Public Order Act of 1986 was also amended by the Racial and Religious Hatred Act of 2006, and again in the Criminal Justice and Immigration Act of 2008 the latter two concerning themselves with religious expression in the first, and sexual orientation in the second, but note that after a campaign the word 'insulting' was removed from Public Order law. There is also an additional source of law in the Football Offences Act of 1991 which forbids indecent or racialist chanting at designated football matches.
https://en.wikipedia.org/wiki/Hate_speech_laws_in_the_United_Kingdom

I suspect that in law the UK -bearing in mind differences in law in Scotland and Northern Ireland- limits free speech more than it does in the US, though whether the law is always applied is hard to assess, not least when little is done (in my opinion) to police football matches. Note that tv coverage tends to edit out through sound engineering the precise chants that emerge from the crowds so that watching tv one is not always aware of what is happening in the ground. If the press is to be believed, the most common incidences of racist abuse takes place at football matches in Russia, which hosts the FIFA World Cup next year.

The basic principle, that hate speech is not free speech is thus enshrined in English law, though it is not clear how often the law is applied and used to convict.