Speech Law Research Articles

Hate Speech in Myanmar

Freedom of expression can be abused in concerning with race, religion or nation, politics and gender and it transfers into a hate speech. This research intends to investigate the gap between the legal ideals and actual practice, especially to understand effectiveness or impact of a draft for the Protection against and Prevention of Hate Speech Law in Myanmar. This paper analyzes the Domestic Laws such as the Constitution of the Republic of the Union of Myanmar, 2008 and the Penal Code, 1861 and the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discriminations against Women (CEDAW) and the Genocide Convention relating to international Conventions and international other documents. This research uses a qualitative approach research method, applying analysis of laws. The draft law is required to balance the right to freedom of expression and the prohibition of hate speech. International human rights laws and standards recognize all protected characteristics of human rights that should be comprised all protecting range of any actions to define “hate speech” in the draft law and should not be restricted to ethnicity, religion, nation, politic and gender. The Government should provide the upcoming Law Protection against and Prevention of Hate Speech in Myanmar urgently.

Hate Speech and Election Violence in Nigeria

Although research has considered how poor governance, exclusionary politics and electoral malpractice affect election violence, the effect of hate speech on election violence has not received adequate academic attention. Using a mixed methods approach with qualitative dominance, this study examines the effect of hate speech on election violence in Nigeria during the 2011, 2015 and 2019 presidential elections. The article demonstrates that an entrenched culture of hate speech is an oft-neglected major driver of election violence in Nigeria. The study concludes that the implementation of existing anti-hate speech laws presents an opportunity for protecting the rights of minority groups, promoting political inclusion and preventing election violence in Nigeria and beyond.

Hate Speech and the Polarization of Japanese National Newspapers

AbstractIn 2016, the first anti-hate speech law in Japan was introduced against the backdrop of verbal attacks on ethnic Koreans who were targeted with particular force by radical right organizations in the early 21st century. We argue that while the role of social media in the proliferation of hate speech in Japan has received considerable attention, the coverage of hate speech and related issues in mainstream news media has not been sufficiently studied. This article offers an interdisciplinary analysis, grounded in media studies and in linguistics, of the positions of five national newspapers in public discourse about hate speech, discussed as a current issue in Japan from 2016 until mid-2018. We combine agenda-setting theory with discourse analysis of factual reporting in order to evaluate the Japanese media landscape, which, when scrutinized through the lens of the hate speech issue, reveals ideological polarization.

Mapping Minorities’ Vulnerability to Hate Speech and Denationalisation with a Focus on East and Southeast Asia

This paper explores whether minority groups are more vulnerable to hate speech, human rights violations, denationalisation and mass atrocities in light of the deliberate lack of state protection through the lens of recent incidents in East and Southeast Asia. The paper also examines the roleof social media giant Facebook in spreading hate speech online and whether it may have had any liabilities in relation to the hateful posts that were spread online against the Rohingyas in Myanmar and, more recently, against the Muslim minorities living in the State of Assam in India. The paper concludes by (1) advising policy-makers to adopt and implement strong anti-hate speech laws, clearly criminalising both online and offline hate speech on the national level, as well as to (2) refrain from denationalising minority groups leaving them stateless or at the risk of statelessness and thus avoid instrumentalising nationality for political gains

All of Life an Experiment

US Supreme Court Justice Oliver Wendell Holmes, Jr. reshaped American free speech law through his Supreme Court opinions during World War I and after. This paper explores the oft-debated questions of whether and how Holmes’s free speech views changed between his legal education (during which he was taught that the common law’s bad tendency test allowed governments to punish any speech after it was uttered) and World War I (during which he created and developed the more expansive clear and present danger test). This paper argues that Holmes developed the underlying principles of his later free speech ideas in his writings on American common law, but that he only expressed those ideas in Supreme Court opinions after several other legal thinkers prodded him to do so.

'Roundtable Discussion of International Human Rights Standards in the United States: The Case of Religion and Belief,' Excerpted in Bürgerrecht und Religion III. Nordamerika

The United States Constitution (1787) and its twenty-seven amendments (1791- 1992) prohibit governmental deprivations of life, liberty, and property without due process of law; guarantee equal protection of the law and freedom of religion, speech, press, and assembly; provide procedural protections in criminal and civil trials; and maintain affirmative to vote and to hold public office. Since 1950, these constitutional guarantees of civil have been greatly embellished through federal legislation and adjudication. The most important legislation is the Civil Rights Acts of 1957 to 1965, and their amendments, which outlaw public and private discrimination on the basis of religion, race, color, sex, or national origin in voting, education, employment, public services and accommodations, and other contexts. More than 1,000 Supreme Court cases since 1950 have interpreted these constitutional and statutory guarantees expansively, and extended them to protect fundamental rights to welfare, education, travel, and sexual privacy.

Rule of Law, Democracy and Freedom of Speech (Lecture at the Organization of American States- OAS)

This paper on the rule of law, democracy and freedom of discourse originates from notes used by the author at a conference at the Headquarters of the Organization of American States (OAS) in Washington (DC) in the United States, in regulation and Freedom of Expression Congress, organized by the OAS, on 09.06.2019. In the text, the rule of law and the importance of defending the independence of powers, fundamental rights, and freedom of the press and discourse for a solid and stable democracy are addressed. The author references the doctrine of English and American law and brings leading cases on the subject. It argues that the rule of law, democracy, freedom of speech and the press are essential for the promotion of sustainable development based on its four essential pillars: good governance, social inclusion, development economic and environmental protection.

Time, Place, and Manner Restrictions on Speech

The category of time, place, and manner restrictions on speech, as supposedly distinct from absolute bans, appears to be central to free speech law. Even a modest examination of the case law, however, suggests the arbitrariness of any such distinction. Any familiar time, place, or manner restriction on speech can be reasonably re-described as an absolute ban on speech, and vice versa. Any differences in how the relevant regulations of speech should be judicially tested, whether by differing degrees of rigor or otherwise, are correspondingly arbitrary. This Article recommends abandoning any attempt to substantively distinguish between time, place, and manner restrictions and absolute prohibitions of speech. The three currently used judicial tests for presumed content-neutral restrictions on the supposed time, place, and manner of speech should be substantially revised and consolidated. Any replacement test should then de-emphasize concerns for any degree of narrowness of tailoring, focusing instead on whether the regulated speakers are now meaningfully worse off, in terms of their own free speech values, given whatever channels of communication remain available to them after the speech regulation in question has been imposed.

The Book Has Two Faces: Trevor Ross’s Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain

Trevor Ross’s Writing in Public: Literature and the Liberty of the Press in Eighteenth-Century Britain traces the evolution of laws regulating public discourse after the decline of English print licensing. Ross argues that the development of the public sphere in eighteenth-century Britain left literature in a strange, contradictory position: simultaneously central to civic society and wholly apart from it. This claim has its contemporary counterparts. It echoes current debates about what literature is “for” among critics and philosophers. It also echoes debates about literature within contemporary free speech law, where Robert Bork and others have argued that literature should not receive protection because it is not sufficiently political, while literature’s defenders have argued for its protection with varying levels of plausibility. Literature’s relationship to public discourse continues to bedevil us, and Ross offers a stimulating account of how this might have come to be.

Dealing with Hate Speech

Abstract Anti-Korean hate speech has become a serious social problem in recent years in Japan. In order to address the growing concern about the issue, Japan’s National Diet passed an anti-hate speech law in 2016. While some legal actions have been taken as a result and there has been some recent academic research into the social production of hate speech, relatively little effort has been made to investigate how the targeted group understands and deals with this form of hostility. Our aim here is to document the ways in which young Koreans who have been living in Japan for greater or lesser lengths of time perceive the rise in hate speech directed against them there and their strategies for coping with it. We explore these issues through an analysis of in-depth interviews with 14 young Koreans, for we seek to shift the focus of hate speech away from the “act” and toward its “targets.”

HATE SPEECH LAWS: EXPRESSIVE POWER IS NOT THE ANSWER

ABSTRACTAccording to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed.

The Murky Ethics of Emoji: How Shall We Regulate a Web for Good?

This paper builds on our earlier investigation in The Emoji Factor: Humanizing the Emerging Law of Digital Speech by exploring how the social media industry is responding to public demand to expand the emoji collection to reflect our individual differences. We consider the ethical fallout of those decisions by asking two research questions: 1) how are emoji changing to reflect human diversity; and 2) do the resulting designs breach laws or ethical norms with respect to privacy, human rights, or data security. Our methodology includes a comparative examination of research and new ‘personalized’ offerings by internet companies such as Facebook and Twitter, as well as the standards board of the Unicode Consortium, to more accurately reflect emoji users’ physical, racial, age-related, and gender-based uniqueness. Our thesis is that through their graphic simplicity and broad accessibility, emoji are well placed as ambassadors of inclusion but we are challenged by the privacy invasions created by their data use by third parties and by a lack of algorithmic fairness in design choices imposed by artificial intelligence. We focus on examples involving the acceptance by the Unicode Consortium of certain emoji that raise ethical questions about their political messaging and machine biases that could discriminate on the basis of personal beliefs, convictions, race, age, or gender. We conclude that internet technology is a political and moral force and, as beneficiaries of its convenience, we have a responsibility to use ethical regulation to “rethink a Web that is truly inclusive and open, a Web for good.” Where better to begin than with that comedic, widely accessible, masterpiece of non-verbal speech: the emoji.

The Meaning of the “Marketplace of Ideas” in First Amendment Law

The 1919 First Amendment opinions of Oliver Wendell Holmes and Louis Brandeis comprise the seminal texts in the cannon that now includes hundreds of decisions by the Supreme Court of the United States interpreting the core of the American free speech tradition. The marketplace of ideas metaphor they developed has been invoked constantly by Supreme Court justices in First Amendment cases. It has achieved genuine load-bearing legal significance, particularly in certain arenas of free speech law, and over-arching significance in rendering the entire architecture of modern free speech law reasonably coherent and stable. This essay explores the importance of the marketplace metaphor in three discrete areas of modern free speech law: commercial speech, political campaign finance, and tort liability. While by no means the only arenas in which the marketplace metaphor has exerted important influence, these three exemplars are especially illuminating, exposing at once the strengths and weaknesses of the marketplace metaphor as a persuasive tool for ordering free speech doctrines. The essay then examines the marketplace metaphor from a wide-angle lens, making the argument that it operates to define two of the central continental divides of modern free speech law. The essay goes a long way toward providing a descriptively clear and normatively convincing account of free speech law as it currently stands.

Can Strategic Human Rights Litigation Complement Social Movement? - A Case Study of the Movement against Racism and Hate Speech in Japan

Strategic human rights litigation aims to seek for significant changes in law and policies, or influence public opinion and awareness, through situating individual client interests or human rights within larger social goals, or creating progressive jurisprudence, which advances human rights and rebalances the historic or systematic injustices. However, the law and society debate over litigation and social change sheds light on both the positive and the negative sides of strategic litigation. On the one hand, the positive view emphasizes that strategic litigation can change social understandings and create issues around which to organize a movement by attracting publicity, media attention and participants to a movement. On the other hand, critiques point out the limits of individual litigation as a strategy for social change and even its negative effects, arguing that legal victories bring no real change and individual litigation can narrow issues and atomize collective grievances, undermining broader collective action. In light of this debate over strategic human rights litigation and social movement, this article explores the role of the recent hate speech and hate crime cases in Japan, in which an elementary school for residential Koreans in Kyoto was raid by xenophobic nationalist groups in 2009 and 2010. These Kyoto Korean School incidents were part of the growing racism and ultra-nationalistic campaigns against ethnic minorities in Japan, in particular, against those who reside in Japan with Korean descent. This empirical socio-legal analysis examines the Kyoto Korean School cases in the dynamic process of the anti-hate speech and racism movement in Japan as an example of successful strategic human rights litigation, aiming to propose a broader framework through which we understand strategic litigation, focusing on the interaction between domestic and international laws and advocacy by civil society. This study has shown that the Kyoto Korean School cases had an enormous positive impact on the anti-racism movement in Japan including raising consciousness among the plaintiffs and public awareness without a big backlash and led to the enactment of the very first anti-hate speech law and a municipal ordinance, with the support of increased media attention and public opinion against hate speech. In this case, those effects were not originally pursued, but grew out of not only the judicial decisions but also of the process for seeking justice, thus calling the cases “unintended strategic litigation.” It was a transformative process for both plaintiffs and lawyers, namely iterative and interactive process of human rights norms diffusion, rather than top-down. This paper also analyzes the reasons behind this “success.” The rulings of the Kyoto Korean School case, which condemned hateful demonstrations as “racial discrimination” under the international human rights convention, framed the issue as the matter of universal concern which affects Japanese society as a whole. The rulings were accepted by the majority in Japanese society without inducing the backlash. Unprecedented application of the international human rights convention was highlighted by media, while some extreme characters of this hate crime case against elementary school children also attracted media attention. This brought the long-standing efforts of civil society groups and activists to vernacularize the universal human rights norms into the attention of majorities, which has been spread in Japanese society with the historic effort of civic networks of diverse actors, not only of lawyers but also of civil society organizations, local communities, and a massive number of individuals who joined in counter-movement. It pushed a majority of the society into major actors of the expanding anti-racism movement and also brought the Kyoto Korean School cases, its process of proceedings, and the subsequent results to domestic and international attention, with a help of the Internet media. In this sense, the recent anti-racism movement in Japan is not only a leftist elite or professional activist movement but also involves general public and local community members connected loosely via the Internet. The combination of the bottom-up human rights movement based on the locality and the international and national advocacy of leftist groups engaging lawmakers have provided an impetus in advancing legal development against hate speech. The culmination of activists’ efforts, in collaboration with policymakers and human rights workers with the support of public opinion, came in May 2016, when Japan passed its first law against hate speech. Consequently, this analysis shows the Kyoto Korean School cases were successful as unintended strategic human rights litigation since the multiple stakeholders brought a universal human rights ideology embedded in the rulings into a wide range of communities in society in a dynamic process involving diverse actors including lawyers, civil society organizations, local communities, individual activists, journalists, lawmakers, and even international human rights organizations, where the purpose of social movements is complemented by legal means.

Complexity and Class: A Review of Kent Greenfield’s Corporations Are People Too (And They Should Act Like It)

Kent Greenfield has graced us with a new book that is novel, nuanced, and accessible. Dispensing with rhetoric at odds with both the nature of the corporation and his view of its normative role, Greenfield makes a two-pronged argument: corporations should have speech rights, albeit of a more limited form than individuals, and the relevant issues are first and foremost issues of corporate governance. Regarding corporate governance, Greenfield would have us dispense with the business judgment rule and extend fiduciary duties to non-shareholder stakeholders. Greenfield’s recommendations in the areas of both speech law and corporate governance have some attraction but do not take into account the cost that comes with additional complexity. In particular, forcing fiduciary obligation into a stakeholder framework goes against the very nature of fiduciary obligation. Greenfield also misses an opportunity to reassess the role of the corporation in society increasingly divided by professional and educational class: corporations are uniquely situated to serve as mediating institutions at the center of debates that will rage in the coming years.

Malaysia’s Anti-Fake News Act: A cog in an arsenal of anti-free speech laws and a bold promise of reforms

Malaysia’s surprising fourteenth general election result in May 2018 was widely hailed as the advent of a seismic shift for press freedom in the country. The country’s draconian media control armoury was often wantonly and oppressively applied over six decades under previous rule. Key actors from that era are now presiding over bold reforms that have been promised by the new government. In keeping with its election promises, the new government sought to repeal the hastily and badly drafted Anti-Fake News Act 2018 (AFNA). The Attorney-General Tommy Thomas wrote scathingly before the Act was passed and before taking office as the new A-G:The draconian effect of the entire bill renders it unconstitutional…This is a disgraceful piece of legislation drafted by a desperate government determined to crush dissent and silence critics. The bill is so hastily and poorly drafted that it cannot under any circumstances be improved by amendment. Instead, it must be rejected outright. (Thomas, 2018)The repeal effort, however, failed and the Act remains technically on the books. This article examines the Act against a backdrop of global responses to the ‘fake news’ phenomenon; provides an overview of Malaysia’s draconian armoury of laws that impinge on freedom of expression; discusses the fading optimism for proper media regulation reform in Malaysia; and concludes that meaningful media regulation reform must go beyond repealing AFNA.

Jurisprudence of Tolerance: Hate Speech, Article 17 and Theory of Democracy in the European Convention on Human Rights

What does the protection or prohibition of a speech tell us about the tripartite relationship between political power, democracy and rights? This question has somehow underscored the jurisprudence of the European Court of Human Rights in hate speech cases for more than a half century. We argue that this question has invariably placed the Court in an uneasy position, which is, choosing between a democracy empowered by unlimited freedom of speech, but with recurrent social tensions, and a democracy with rather strict hate speech laws, but at ease with different segments of population. That said, the jurisprudence of the European Court outlines a pattern by which to identify a specific direction for the evolution of rights and democracy. This article considers this pattern. Not only does this article, examine the pattern in the Court’s and the Commission’s jurisprudence, but it also argues that this pattern unfolds a subtle presence of Hobbesian and Lockean theories of political power and the limits in its midst. By invoking this presence, we indicate how the debate in the jurisprudence of the European Court has shifted from the language of protecting democracy to that of rights.

Combating Hate Speech at the Local Level: A Comparison of East Asian and European Approaches

ABSTRACTAlthough existing research on hate speech law and policy has focused on the national level, there have been relatively few studies of local government approaches to the issue. This paper takes a step toward filling this gap by comparing hate speech policies in three European cities (Graz, Barcelona and London) with those developed in four East Asian cities (Osaka, Kawasaki, Seoul and Bucheon). These cities were chosen for study because in each case local governments have explicitly engaged with the issue of anti-hate speech policy. For each city, I focus on the type of anti-hate speech policy that has been developed, the motivations behind it, the challenges and opposition faced, and where relevant the diffusion of local anti-hate speech policy to and from other jurisdictions. This research is the product of a review of primary documents and media commentary, supplemented in one case by an email interview. I then analyse the common elements and notable differences between local anti-hate speech policies in the two regions and conclude with observations on the different forms that local anti-hate speech policy has taken and suggestions for further research.

The Dangers of Porous Borders

Donald J. Trump’s journey to the White House signaled the resurgence of right-wing populism in the United States. His campaign and his surprising electoral victory rode a wave of anti-elitism and xenophobia. He masterfully exploited the economic and cultural anxieties of white working class and petite bourgeois Americans by deflecting blame for their woes onto the “usual suspects,” among them minorities, liberals, Muslims, professionals and immigrants. His rhetoric touched a chord, and in fact emboldened and energized white supremacist ideologies, identities, movements and practices in the United States and around the world. Indeed, the Trump Effect touched Canada as well. This paper explores how the American politics of hate unleashed by Trump’s right-wing populist posturing galvanized Canadian white supremacist ideologies, identities, movements and practices. Following Trump’s win, posters plastered on telephone poles in Canadian cities invited “white people” to visit alt-right websites. Neo-Nazis spray painted swastikas on a mosque, a synagogue and a church with a black pastor. Online, a reactionary white supremacist subculture violated hate speech laws with impunity while stereotyping and demonizing nonwhite people. Most strikingly, in January 2017, Canada witnessed its most deadly homegrown terrorist incident: Alexandre Bissonnete, a right-wing extremist and Trump supporter, murdered six men at the Islamic cultural centre of Quebec City. Our paper provides an overview of the manifestations of the Trump Effect in Canada. We also contextualize the antecedents of Trump’s resonance in Canada, highlighting the conditions for and currents and characteristics of right-wing extremism in Canada.

Leyes que rigen la libertad de expresión del historiador: una visión comparativa en el mundo contemporáneo

This article provides a comparative approach to laws that interfere directly with the free expression of historians, that is, with respect to what they say and write. This body of international law is gathered together into four groups: memory laws, blasphemy laws, hate speech laws, and laws against genocide denial. To examine each group, the article provides a definition and identifies how standards overlap. Finally, the most relevant debates are summarized with respect to their consequences for practicing history.