Speech Law Research Articles

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.

HATE: Why We Should Resist it with Free Speech, Not Censorship by Nadine Strossen

Reviewed by: HATE: Why We Should Resist it with Free Speech, Not Censorship by Nadine Strossen Richard Ashby Wilson (bio) Nadine Strossen, HATE: Why We Should Resist it with Free Speech, Not Censorship (Oxford University Press 2018), ISBN: 9780190859121, 232 pages. Hate is trending. The sitting president of the United States regularly mobilizes his political constituency by vilifying Mexican immigrants as “criminals and rapists” who “infest” America, and by promoting a “zero tolerance” policy at the border that punitively separates children from their parents, including persons applying for asylum. There has been a resurgence in white nationalist ideology globally both in mainstream electoral politics and in ugly scenes on the streets of Charlottesville, Dresden, and Warsaw. In the United Kingdom, hate crimes spiked after the Brexit referendum and in the USA, there has been a steady rise in hate crimes against African-Americans, Muslims, immigrants and members of the LGBT community. Given this current paroxysm of populism, isn’t it high time we re-evaluated our commitment to freedom of expression and start contemplating new legislation to regulate discriminatory speech that targets vulnerable minorities? In HATE: Why We Should Resist it with Free Speech, Not Censorship, Nadine Strossen, former national President of the American Civil Liberties Union (ACLU), offers a resounding defense of free speech and rejects attempts to suppress or ban speech that is constitutionally protected under the First Amendment. Free speech is the lifeblood of democratic deliberation, argues Strossen, and much hate speech in the United States, while offensive, is protected speech and should remain so. Current US law only suppresses speech that intentionally advocates imminent lawless action that is likely to occur, and even then, the regulation of speech must occur in a way that is consistent with the viewpoint (or content) neutrality principle which inhibits the state from disfavoring some opinions simply because they are disagreeable. Strossen starts with the observation that there is no clear and consistent definition of “hate speech,” which she puts in scare quotations throughout the book. Hate speech is not a term of legal art and it is simply wrong to assert, as some liberal politicians have, that “hate speech is not free speech.” In Strossen’s view, “the terms ‘hate speech’ and ‘hate crimes’ are simply deployed to demonize views people find offensive and to call for punishing a broad swathe of expression, including political discourse that is integral to our democracy.”1 Reviewing hate speech laws in the US and globally, Strossen concludes that it is simply not possible to draft hate speech laws that are not unduly vague, overbroad and counter-productive.2 Germany, France, and other European countries convict hundreds of defendants a year for offences as capacious as “incitement to hatred,” and Strossen documents a number of cases that seem disproportionately chilling of political [End Page 213] speech. They include the 2014 arrest of a British politician for publicly reading a Winston Churchill quote from 1899 that denounced the treatment of women in Muslim countries, and the conviction of a Danish man in 2016 who criticized “the ideology of Islam” on Facebook, and posted the statement, “Islam wants to abuse democracy in order to get rid of democracy.”3 She reminds us also of the long and repressive history of government censorship in the United States, including how, in the 1830s, Southern states banned abolitionist speech on the grounds that it had the potential to incite violence and rebellion. She observes that the Republican National Committee and some state legislatures have included the Black Lives Matter movement in resolutions condemning hate speech. HATE addresses the lively and fairly acrimonious campus hate speech debate currently taking place in the United States, and Strossen counsels faculty and students to confront provocative speakers at universities with “counterspeech” and vigorous opposing arguments, rather than to silence them with heckling and censorious campus hate speech codes.4 She points out that all the campus speech codes challenged in the courts by the ACLU have been struck down on First Amendment grounds and recommends that universities permit all speech that the government does not itself censor.5 Strossen does not countenance the view that merely being exposed to denigrating speech is in...

Free Speech in India

This work intends to share a sense of free speech regulation in India. It is divided into three parts: Part I considers the underlying socio-legal basis of the free speech laws and norms in India, Part II explores what free speech regulation comprises from the points of view of social norm, positive law, and normative law, and, finally, Part III looks at how free speech restrictions are actually implemented in the country.

THE SPEECH LOGIC LAWS AS A THEORETICAL AND METHODOLOGICAL BASIS FOR THE FORMATION OF STAGE SPEECH AS A VERBAL IMPACT

The main thing in the actor`s work is to identify the essence of the work (the most important task) and to translate it into a role (through action). The law of verbal exposure requires the performer to regard communication with partners with the help of the word as a conscious activity aimed at performing a certain creative task. Based on the study of the structure of speech communication, K. S. Stanislavsky formulated the law of context, the law of subtext. The speech logic laws dictate the rules for placing pauses, logical stress, intonation of speech in a sentence and help the future actor to find the right solution to work on the role. Knowledge of the laws and rules helps to determine the place of the logical stress: the genitive case, the comparison, the opposition, the match, the emphasis on the pronoun, the adjective, the verb, the rule of the new concept, the homogeneous parts of the sentence.

The Regulation of Hateful and Hurtful Speech: Liberalism’s Uncomfortable Predicament

The regulation of speech is a highly sensitive and always evolving ethical, political, and legal issue. On the one hand, hateful and hurtful speech is on the rise, especially, but not exclusively, with regard to the relationship between Islam and the West. We can also think of the radicalization of discourse brought about by the interactive phase of the Internet. On the other hand, demands for the suppression of certain forms of speech proliferate. After reviewing the argument for freedom of expression, I argue that while the notion of harm defended by Millian liberals is too narrow, an “offence principle” is too broad. After defending hate speech laws, I concede that such laws need to target only the speech acts that express the most severe forms of aversion and denigration toward the members of a specific group. I then reflect on the status of “hurtful speech”, which I see as including the performative utterances that stop short of being hateful but nonetheless erode, through their illocutionary force and perlocutionary effects, the social standing and bases for self-respect of those who are targeted. I conclude that the free speech debate reveals a limit of liberal political morality and leaves liberal normative theorists with an uncomfortable predicament, as they have to rely more on the complementary role of pro-social personal dispositions and civic virtues than they generally wish to.

Hate Speech Law: A Philosophical Examination

Alexander Brown writes as an inter-disciplinary scholar at the intersections of law, ethics, philosophy, and politics. With Hate Speech Law: A Philosophical Examination he justly claims to have explored “numerous principled arguments for and against hate speech law by articulating a collection of key normative principles” (316). This ambitious book identifies and organizes conflicting values within the hate speech controversies. It aims to synthesize deeper questions about core concepts of liberalism, democracy, personhood, dignity, and tolerance with policy concerns about pragmatics and effectiveness. The most seasoned free speech scholars will find points and angles they had not previously considered.

Atrocity Speech Law, by Gregory S. Gordon

Atrocity Speech Law, by Gregory S. Gordon

Hate Speech Regulation in Post-Communist Countries: Migrant Crises in the Czech and Slovak Republics

In 2015, the migrant crises in Europe showed that countries that have less experience with immigrants are also the less welcoming. Lack of proper application of hate speech laws and common use of political hate speech in the Czech and Slovak Republics have further promoted prejudice and intolerance towards minorities. In the absence of a universal definition of hate speech, I interpret incitement to hatred in three different but complementary ways: incitement to violence; incitement to discrimination; and incitement to denial of human dignity. This generational model is also applied to interpret the Czech and Slovak case law to explore the possibilities for outlawing hate speech that targets migrants and to decide on which ‘legal goods’ a society should protect in the twenty-first century.

The Need for New Tools to Break the Silos: Identity Categories in Hate Speech Legislation

The implications of specifying certain identity categories have been widely debated in the context of hate crime laws and policies. However, they have been less thoroughly examined in the particular contexts of hate speech. Although the majority of laws regulating speech do not differentiate between identity categories, the ‘stirring up’ offences of the United Kingdom Public Order Act 1986 are stratified along grounds of race, religion and sexual orientation. This article argues that, while the concerns raised about identity categories in relation to hate crime legislation are equally relevant to the stirring up provisions, the proposed solutions cannot automatically be transposed to hate speech offences. Accordingly, this article explores challenges that are encountered in attempts to make hate crime and hate speech legislation more inclusive before advancing some tentative suggestions for how hate speech laws might move beyond identity silos.

Assessing Judicial Empowerment

Drawing on an ongoing international data collection effort, this paper examines the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment. Free expression is a universally recognized fundamental right, and it is a right that is regularly invoked in court by a rich diversity of political actors. As such, free speech law provides an illuminating window onto how constitutional courts respond to similar claims from differently situated claimants. This paper compares the response by two influential courts to free expression claims filed by for-profit businesses and by labor advocates.

Silencing Bad Bots: Global, Legal and Political Questions for Mean Machine Communication

As digital automation expands across social contexts, the way in which legal systems respond when algorithms produce lies and hate presents a pressing policy problem. Search results, autofill suggestions, and intelligent personal assistants generate seemingly objective information for users in order to be helpful, efficient or fun but, as social technologies, can also produce prejudicial and false content. Chatbots and trending lists have made headlines for quickly being transformed from sweet to spiteful and political to inaccurate. As humans progressively engage with and rely on machine communication, the legality of algorithmically created information that harms the reputation or dignity of an individual, entity or group is a policy question posed and answered differently around the world. This article compares various defamation and hate speech laws through the lens of algorithmic content production – mean machine communication – and presents a set of outstanding issues that will require international and interdisciplinary attention.

Locke and Hate Speech Law


 
 
 Hate speech is a high profile issue in many liberal democracies today. While commentaries by constitutional experts and jurists abound in the press, and by legal and political philosophers in academia, it is remarkable that there is far less contribution from students of history of political thought and intellectual history, especially of the early modern era, considering how largely the theme of religious toleration and intolerance featured in this period. Jeremy Waldron’s The Harm in Hate Speech, and more specifically Chapter 8 entitled ‘Toleration and Calumny’, helps to break this silence, making a case for how Enlightenment toleration theories from Locke to Voltaire might connect and enrich our discussions about hate speech today.
 
 

Atrocity Speech Law: Addressing Hate that Does Grave Harm

Atrocity Speech Law, by Gregory Gordon, offers a bold, holistic framework to repair gaps and discrepancies in the international laws regarding speech that can trigger grave crimes. The book shows how current treaties and conventions were constructed piecemeal in the urgency to prosecute those responsible for such horrors as the Holocaust and the Rwandan genocide. Now, as hostile speech regains a political foothold and as new forms of communication disrupt old norms, Gordon proposes a Unified Liability Theory, a more thorough, consistent, and rigorous law to clarify the line between legitimate protest and crime.

Assessing Judicial Empowerment

Drawing on an ongoing international data collection effort, this paper examines the free expression jurisprudence of the Supreme Court of Canada and the European Court of Human Rights in an effort to assess the political beneficiaries of judicial empowerment. Free expression is a universally recognized fundamental right, and it is a right that is regularly invoked in court by a rich diversity of political actors. As such, free speech law provides an illuminating window onto how constitutional courts respond to similar claims from differently situated claimants. This paper compares the response by two influential constitutional courts to free expression claims filed by for-profit businesses and by labor advocates.

Atrocity Speech Law: Addressing Hate that Does Grave Harm

Atrocity Speech Law:Addressing Hate that Does Grave Harm Carol Pauli (bio) Gregory S. Gordon, Atrocity Speech Law: Foundation, Fragmentation, Fruition (Oxford Univ. Press 2017), ISBN 9780190612689, 464 pages. I. INTRODUCTION Gregory Gordon's book, Atrocity Speech Law, is a groundbreaking work that has arrived when it is urgently needed, in the midst of rising hateful rhetoric.1 Meticulously researched and thoughtfully written, the book exposes maddening gaps in international law regarding dangerous speech. It then proposes a bold remedy: an innovative, holistic framework that streamlines, coordinates, and expands the existing laws. Against the current backdrop of hostility—with its angry assertions of racial and national supremacy, terrorist recruitment videos, shouts of rage at refugees, and dizzying shift in the tone of political discourse—this book is a crucial response to speech that can trigger atrocity. In it, Gordon lays out the legal boundaries needed for effective deterrence, and he modestly urges other scholars to build on his framework. This essay takes up his invitation. Gordon writes from his frustration as a prosecutor with the International Criminal Tribunal for Rwanda, the African nation where alarming media messages stirred thousands of ordinary people to take up machetes and slaughter their neighbors, some 800,000 innocent people, while the world stood by as though [End Page 718] powerless.2 More than twenty years later, Gordon shows that international law still lacks the clarity and strength to deter such incendiary speech. Gaps in the "unshapely and disjointed"3 laws leave areas of impunity. Even where the law sets out crimes, the definitions and elements of the offenses may be too fragmented to alert would-be inciters, persecutors, and instigators to their own criminal liability. These inconsistent laws also threaten free expression because they fail to stake out protected areas for legitimate protest. Some international court decisions have even emboldened dictators to crack down on dissent, perversely turning international law into a weapon against their own vulnerable citizens.4 To fix these defects, Gordon first establishes a new, unifying conceptual category, "atrocity speech law."5 This term brilliantly captures the essence of the challenge. He identifies four speech crimes from different areas of international law: inciting others to commit genocide, instigating an international crime, ordering a military—or even non-military—subordinate to commit an international crime, and persecuting members of a group on discriminatory grounds.6 Gordon rethinks the relationships among these offenses and draws a new, comprehensive architecture, a "Unified Liability Theory," culminating in a proposed treaty and a draft revision to the Rome Statute of the International Criminal Court. This essay takes a next step, making suggestions and posing questions aimed at applying the deep and bitter lessons from the past century to the mounting challenges of the new one. Part II briefly describes some of the international law troubles that Gordon documents in detail. Part III sketches Gordon's Unified Liability Theory in order to highlight several of its important contributions. Part IV considers today's fast-changing technology and political rhetoric. It urges adopting Gordon's well-founded work and extending his rigorous method of analysis. II. GAPS AND CONTRADICTIONS IN ATROCITY SPEECH LAW In his first chapter, Gordon tells the story of a German mother in 1943 who comes upon a ragtag group of terrified Jewish children and brings them home to feed, comfort—and shoot in the head one by one.7 She later explained, "As was told to me, I had to destroy the Jews."8 The incident illustrates the bewildering horror of Gordon's subject: the capacity of speech—"as was told to me"—to excite monstrous acts. How can international law be confused about speech that leads to grave crimes—even genocide, "the crime of crimes"?9 In Atrocity Speech Law, Gordon shows how, tragically, the very enormity of the wrong is at the heart of [End Page 719] the legal defects. In the ashes of World War II, Allied nations realized that the Holocaust had outstripped the criminal laws that then existed. Although a new word, genocide, was spoken during oral arguments in the International Military Tribunal at Nuremberg, the crime was not yet on the books.10 Gordon traces the way diverse...

Should web firms decide what we see online?

Adee comments on how social media firms decide what people should see online. Social media firms have long been under fire to protect their users from accounts that spew hate speech. But companies that host websites and offer other web services have been given a free pass. The debate on hate speech has so far been dominated by social media firms. Perhaps free speech and US law can no longer be the sole arbiter of whether or not a tech company chooses its customers, according from Bharath Ganesh at the Oxford Internet Institute in the UK.

Review: Speaking Freely: Whitney v. California and American Speech Law by Philippa Strum

Review: Speaking Freely: Whitney v. California and American Speech Law by Philippa Strum

Our Proudest Boast

It took 88 years to return to an old but proud principle of free speech law, one that was first announced in a little remembered dissent by Justice Oliver Wendell Holmes. That principle recently found noteworthy expression in Justice Samuel Alito’s opinion in Matal v. Tam (2017). For it was in that case that the Court harkened back to Justice Holmes’s dissent in United States v. Schwimmer (1929). This was Holmes's last free speech opinion. Notably, it was not a constitutional case, but rather a case involving an immigrant. Yet Holmes took the occasion to announce a broad new principle that would, in time, blossom into a major tenet of our free-speech jurisprudence – the need to protect the speech we hate. According to Holmes, this principle is not limited to citizens but applies to all those living in the United States. Holmes managed to do all this in 634 scant words. There is evidence that Brandeis played a role in spurring Holmes to write this dissent. But the circumstances of Holmes's life – the loss of his wife, the realization that his long career and life were coming to an end – also helped shape an opinion that is the antithesis of the values Holmes championed as a Justice: judicial restraint, a value-neutral jurisprudence and personal detachment from the facts of his cases and the people whose lives they affected. Schwimmer was the one case where Holmes showed a touch of humanity that was otherwise absent from his judicial work. As applied to the narrow facts of Schwimmer, the Supreme Court eventually adopted Holmes's view in Girouard v. United States (1946). But there is much more, namely, the evolution of an idea, magnificently expressed, that nine decades later is hailed by the Supreme Court as “the proudest boast of our free speech jurisprudence.”

The New German Hate Speech Law – Introduction and Frequently Asked Questions

The New German Hate Speech Law – Introduction and Frequently Asked Questions

Mosaic Theory and Cyberharassment: Using Privacy Principles to Clarify the Law of Digital Harms and Free Speech

The Supreme Court of the United States, in the 2012 case United States v. Jones, laid a jurisprudential foundation for using mosaic theory to identify and address harms caused when innocuous bits of information are aggregated and used to invade the privacy of a targeted individual. Although mosaic theory has been applied almost exclusively in Fourth Amendment privacy cases, information mosaics can be used to facilitate online harassment. However, courts have not articulated frameworks for recognizing informational harms caused by mosaics. Additionally, although state cyberharassment laws exempt constitutionally protected informational uses from prosecution, neither state legislatures nor courts have articulated the extent of such protected activities in the cyberharassment context. Mosaic theory provides a useful theoretical and heuristic lens for understanding the limits of informational uses and harms in the cyberharassment context. Using the lens of mosaic theory, this article explores the ways information mosaics can be used to harass targeted individuals. The article concludes that states should pursue incremental modifications to their cyberharassment laws to address the harms caused by persistent, intentional, targeted uses of information mosaics against targets and that they better articulate frameworks for understanding which information-sharing activities are exempt from prosecution.