The Rise of Hate Speech and Hate Crime Laws in Liberal Democracies
2011; Taylor & Francis; Volume: 37; Issue: 6 Linguagem: Inglês
10.1080/1369183x.2011.576195
ISSN1469-9451
Autores Tópico(s)Populism, Right-Wing Movements
ResumoAbstract Since the 1960s, many liberal democracies have instituted laws that penalise hate speech and hate crimes in ways that limit the freedom for racists to express themselves. This article examines the legislation and enforcement of provisions against incitement to racial hatred, Holocaust denial, and crimes motivated by racial bias in Western Europe and the United States. Viewed over time, the pace of change has more closely resembled a slow creep than a slippery slope, and the extent of legislation and enforcement has differed across countries in different domains. This article documents the trend and highlights causes for concern, yet concludes that it is possible to enact and enforce laws that limit these forms of racism without being overly inimical to freedom of expression and opinion. Keywords: FreedomSpeechExpressionHate CrimeRacismHolocaust Denial Notes 1. The English Bill of Rights extends these freedoms to debates in Parliament: 'That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament'. France's Declaration of the Rights of Man and of the Citizen (1789) and the First Amendment of the American Bill of Rights (1789) broaden the coverage to all, in formulas similar to that adopted by the UN in 1948, Article 19 of which reads: 'Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers'. 2. I use racist here in a broad sense to mean demonstrations of racial, ethnic or religious bias or hatred. By opinion-as-motive, I mean racist opinions that are translated into a motive to act, such as in a hate crime. 3. For cognate arguments about the trajectory of the human rights revolution at the global level and of the minority rights revolution at the American level, see Kymlicka (Citation2007); Skrentny (Citation2002). 4. Although some countries' existing laws could have been deployed to curb public racism, they rarely were. For example, Weimar Germany had laws criminalising religious insult and incitement to violence against 'classes of the population'. Yet, the editor of Der Stürmer was frequently able to minimise or to avoid penalties by arguing that his attacks against Jews were protected speech because they were levelled on racial instead of religious grounds and that they were protected as part of a political agenda (Levitt Citation1993; Showalter Citation1982). 5. In addition, the Football Act of 1991 prohibits indecent or racist chanting at matches. 6. For the Federal Ministry of Justice's English-language text of the German Criminal Code, see http://www.iuscomp.org/gla/statutes/StGB.htm#86a The text of Article 86a forbids 'in particular, flags, insignia, uniforms, slogans and forms of greeting', and declares that 'symbols which are so similar as to be mistaken for those' listed above are deemed equivalent. Other European countries have similar provisions banning Nazi symbols. 7. Article 130 prohibits writings that incite hatred or violence or which insult, maliciously malign or defame 'segments of the population or a national, racial or religious group, or one characterised by its folk customs'. The forerunner to this aspect of Article 130 was Article 131 which, when established in 1973, prohibited racist writings (Hofmann Citation1992: 164). 8. Ministry of Justice Archives, Folder 'Diffimation Raciale; Réponse à M. Jean Foyer'. 9. Switzerland, Liechtenstein, Portugal and Spain also have generic laws against denying genocides and, once they became fully fledged democracies in the 1990s, a number of East European countries—such as the Czech Republic, Poland and Slovakia—also crafted laws banning forms of Holocaust denial (Whine Citation2009: 544–6). 10. It is important not to overlook the political motives behind such laws, such as wrong-footing the opposing party or staking a claim to antiracist leadership for electoral purposes. Yet, these motives do not explain the specific form of the proposals—there are many ways to achieve those political goals in a liberal democracy which do not involve placing highly controversial limits on freedom of expression. 11. This logic applies in different ways to two types of Holocaust denial within Germany. Simple Holocaust denial, such as asserting 'The Holocaust never happened', is considered constitutional non-speech, as such statements merely assert facts without attaching an opinion. Because these facts are plainly wrong—so the argument runs—they have no value as 'speech' and can easily be banned within the constitutional framework if they are deemed harmful (Brugger Citation2003: 32–3). Qualified Holocaust denial includes statements that attach a political opinion to the historical argument—such as 'We should do something about those Jews who spread lies about Auschwitz'. These expressions are deemed 'low-value speech' because, although they may represent deeply held political convictions, many Germans have concluded that such arguments lead to '"pogrom", "massacre" and "genocide"' (quoted in Brugger Citation2003: 34). 12. Beauharnais v. Illinois, 343 US 250, 258–59 (1952). Frankfurter went on to discuss multiple examples of racial strife in Illinois that could presumably justify passage of the state law. 13. In 1972, the Court further eviscerated the fighting words principle when it overturned the conviction of men found guilty for levelling at police officers terms that included 'white son of a bitch', 'God damned m— f—', and 'black m— f— pig' (Walker Citation1994: 111). 14. The exception is the 'clear and present danger' principle, wherein a speaker's expression 'immediately incites others to criminal or dangerous activity', such as shouting 'fire' in a crowded theatre (Gould Citation2005: 19). Even this principle has been flexibly interpreted in US history, and at one point constituted a much greater threat to freedom of speech (Greenawalt Citation1995: 18–19). See Dennis v. United States, 341 US 494, 510 (1951). 15. Officially called the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, in earlier incarnations it was known as the Local Law Enforcement Hate Crimes Prevention Act. 16. Interview with Neil Stevenson, Home Office, Community Relations Unit, 19 November 2003. 17. According to the 1998 Crime and Disorder Act, protected groups are those defined by reference to race, colour, nationality (including citizenship) or ethnic/national origins. Article 39 of the 2001 Anti-Terrorism, Crime and Security Act extended protections to religious groups, creating the category of 'religiously aggravated offences'. 18. See House of Commons, Racial and Religious Hatred Bill, with the Home Office's Explanatory Notes (Bill 11–EN), available at http://www.publications.parliament.uk/pa/cm200506/cmbills/011/2006011.htm For the final text of the Act and the Explanatory Note, see http://www.opsi.gov.uk/acts/acts2006/20060001.htm 19. BBC News, 1 February 2006. The Home Office made clear that such jokes would not be caught by the law, writing in Bill 11–EN 'The offences will not encompass material that just stirs up ridicule or prejudice or causes offence'. 20. These deputies may have been responding to the potential votes of the 500,000 descendents of Armenian origin in France (Le Figaro, 13 October 2006), some of whom are organised in the Committee for the Defense of the Armenian Cause (CDCA). They may also have been motivated by general anti-Turkish sentiment generated by fears of its joining the European Union (see Le Monde, 9 October 2006). 21. A leading advocate from the Armenian community believes that the law will eventually pass (interview with M. Alexis Govciyan, 20 May 2008); as noted in fn. 9, Switzerland, Liechtenstein, Portugal and Spain already have generic laws against denying genocides. 22. There are no systematic comparative data available on complaints, investigations, indictments, prosecutions and convictions for such crimes; such data would be necessary for a complete analysis of law enforcement. 23. Lords Hansard text for 13 December 2004, 'Incitement to Racial Hatred: Prosecutions', response to question by Lord Lester of Herne Hill, col. WA56. 24. Calculations for the 2005 to 2007 period come from the Annual Reports of the Commission Nationale Consultative des Droits de l'Homme, which produces statistics on convictions where the sole offense is a hate speech offense. There are also data on convictions where hate speech was one among two or more elements of the crime; if included, the number of convictions roughly doubles. Data from 1997 to 2001 are from the Commission Nationale Consultative des Droits de l'Homme (Citation2003: 573). 25. Opponents of this view, such as Coliver (Citation1992), argue that such laws are simply too risky to support. However, by Coliver's own admission, these laws 'do not appear to have been seriously abused' by the established liberal democracies she reviews (1992: 365).
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