Hate Speech: International Law v. U.S.A Law

By: Hiba Birat

Between Soren Kierkegaard who once said “People demand freedom of speech as a compensation for the freedom of thought which they seldom use” and Benjamin Franklin who once said “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety” lies the most urgent debate now a days. While the past decade or so has witnessed the broadest development in social media forums which entitled the dissemination of thoughts and ideas from all over the world and the interaction of people from different cultural, religious and social backgrounds, the past year has witnessed the worst exploitation of this great development especially with the rise of the far right in both Europe and USA and the aggravation and spread of wars and conflicts in the Arab World and elsewhere. This latest change has seriously transferred the language of hate, supremacy, discrimination, racism, sexism and xenophobia from individual and limited ranges to official and collective ones, putting us once again face to face with mid-nineties Europe when fascism was in control.

However, a lot has changed since the past century at the level of states and peoples. Liberties and freedoms acquired an unprecedented sanctity, whereas governmental intervention fell to its lowest level at least in democratic societies. The law, whether national or international, has come as a response and a pillar to this new line. Conventions and treaties have been signed and adopted, constitutions and statutes have been drafted, and several conferences have been held to safeguard these liberties and freedoms as principle human rights.

Although the USA has been a pioneer in the area of liberties, many see such wide liberties may intervene with the safety and comfort of minorities in the country and that the government should draw a line between what constitutes a fundamental practice of liberty and what constitutes an assault on the other in the name of practicing such liberty. This argument has been brought back to the surface by the latest electoral campaign that has uncovered a serious shift of policy towards a more conservative and confined point where people of color, Muslims, LGBT, and even women find themselves vulnerable to attack and assault in the name of freedom of expression which is considered the cornerstone of all liberties and freedoms.

Because this situation affects all of us as Palestinians, Arabs and Muslims living in the USA; this article deals with different questions of the legal position on freedom of expression: when is it considered a fundamental freedom of speech? When does it become a hate speech? Does the international law draw a clear line between the two terms? Does the USA constitutional law adopt a position on this? What are the acceptable relevant grounds of a law case in front of USA courts? What should we do as a minority of religion and color in a Trump USA to protect our right to practice our beliefs which is also our freedom of expression?

 

International Law Position:

The foundational idea of International Human Rights Law is the dignity and equality of everyone. This mere fact explains the set of rights and freedoms embedded in the international legal tools, as much as it explains the set of exceptions on these general rules.  The first article of the Universal Declaration on Human Rights (UDHR) adopted by the UN General Assembly in 1948 states: “All human beings are born free and equal in dignity and rights.” Several later articles of the declaration also guarantee equal access and enjoyment of rights and freedoms stated thereon “without discrimination of any kind such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-governing or under any other limitation of sovereignty.”[1]

Because equal dignity requires a ban on any denial of respect and equality among human beings, international human rights law had to distinguish between two opponents: freedom of expression, including freedom of speech, and hate speech.

Freedom of expression under International Law:

Freedom of Expression is one of the most fundamental rights in international law. It has been considered the cornerstone of democratic societies and the guarding base of all other freedoms and liberties.

Article 19 (2) of the UDHR states: “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.” Similarly does Article 19 of the International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly in 1966, that states: “everyone shall have the right to freedom of expression, this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in printing, in the form of art or through any other media of his choice.”

This basic freedom has also been protected under regional human rights systems. The European Convention on Human Rights at Article 10, the Inter American Convention on Human Rights at Article 9 and the African Charter on Human and peoples’ Rights at Article 13 all guarantee the right to freedom of expression in a similar language to that found in the ICCPR.

However, freedom of expression is not an absolute right under international law. This fundamental right has some exceptions whenever an overriding interest is threatened or at stake.  Article 19 (3) of the ICCPR explains that freedom of expression carries with it “special duties and responsibilities”. The article also states that this freedom could be restricted by law in the case of necessity in two cases “a. for respect of the rights and reputations of others; b. for the protection of national security or of public order, or of public health or morals.”

Hate speech has been one of the most controversial restrictions on freedom of expression as explained next.

Hate Speech under International Law:

Hate speech is any kind of speech that incites to hatred, violence, and discrimination and tends to “offend, threaten, or insult groups based on race, color, religion, national origin, sexual orientation disability, or other traits.”[2] Officially, though, hate speech does not have one clear and fixed definition. Some parties that deal with international law, mainly courts and tribunals, provided some kind of definition to the term. For example the International Criminal Tribunal of Rwanda provided a very broad definition of the term “hate speech is: stereotyping of ethnicity combined with its denigration.”[3] While the Council of Europe recommendation on hate speech defines hate as “… all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”[4] Worth noting, nonetheless, that courts distinguished between a punishable hate speech and a merely offensive speech that is totally protected by the general rule of freedom of expression. This, however, is not a fixed situation that can be applied to all other similar statements, for example the European Court of Human Rights in Giniewski v. France stated that expression targeting ideas even if offensive shall be protected under freedom of speech while abusive expression targeting individual human beings shall not.[5] Again, this position vary from one case to another which will be discussed later on when speaking about the key elements of hate speech.

Although the UDHR does not state that hate speech is prohibited, its Article 7 provides “all are equal before the law and entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination.” On the contrary, the ICCPR explicitly states in its Article 20 (2): “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Therefore, under the ICCPR states parties are actually required to ban hate speech under their national laws. Unlike the African Charter on Human and Peoples’ Rights that provides in its Article 13 (5)[6] for the prohibition of hate speech, the European and Inter American Conventions remain silent on the issue.

Many experts have drawn attention to an apparent contradiction between the ICCPR’s articles 19 and 20 (2) saying that such restriction stated in the later article contradicts with the general rule of freedom of expression stated in article 19 especially that some forms of speech that might be acceptable to some might be considered as offensive to others which will lead ultimately to restrict individuals’ right to freedom of speech.  However, the UN Human Rights Committee (HRC), tasked with interpreting the ICCPR, in its general comment 11 stressed that article 19 and 20 (2) are compatible and should be applied jointly. The committee also stated that the restriction provided in article 20 (2) should go through the test provided in article 19 (3) of the ICCPR which means it should be embodied in a national law, required by a state of necessity and for two reasons; either to respect others’ rights and reputations, or to respect public order, health and moral.

The most comprehensive international tool that dealt with hate speech, however, is the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), adopted by the UN General Assembly in 1965. Article 4 of the convention requires states parties to “condemn all propaganda and all organizations which are based on ideas or theories of  superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights…” the same article in its sub (a) provides for different forms of prohibited speech: “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof…” and requires states parties to declare such forms offences punishable by law.

Now the legitimate question here is what constitutes a hate speech? According to the above mentioned Human Rights Law tools, there are several elements to a speech to be considered hate speech and thus punishable by law.

Elements of hate speech:[7]

Because hate speech, as a term, does not have a specific definition, International courts depend on deferent elements provided in articles that deal with hate speech to determine whether the statement in question is considered hate speech or merely offensive and thus protected by the general rule of freedom of expression.

  • Intent: element of advocacy to inciting hatred is required by all articles deal with hate speech, namely: article 20 (2) of the ICCPR, article 4 (a) of the CERD and article 13 (5) of the ACHR. This element basically means that a statement that was not meant to incite hatred should not be considered as hate speech even if it actually incited to hatred.
  • Incitement: this element is one of the most important yet controversial elements to hate speech. Although all articles that deal with hate speech require it,[8] no clear definition is found for it in international law. Thus, international courts and tribunals tend to look for number of factors to examine the presence of incitement:
  • Causation: although inciting an act is not the same as causing it, courts have looked for a relation of causation between the context and the result of a statement in question. Causation according to International Tribunal for Rwanda means that the statement to be inciting to hatred must “create an actual risk of harm”, the court in Erbakan v. Turkey noted that international courts in hate speech cases do not look from a direct casual perspective, rather “what the likely impact might be, recognizing that causation in the context might be relatively indirect.”
  • Context: this factor is the most direct one in assessing whether a statement incites to hatred and whether it is meant to incite to hatred, which means this factor interferes with both incitement and intent. Along with the element of result that will be discussed next, statements with a “racist nature” are two key points for Human Rights Committee and European Human Rights Commission and Court to look for in cases of hate speech.

 

  • Proscribed Results: unlike the two previous elements, results differ between articles that cover hate speech. While article 4 (a) of the CERD is the most comprehensive in this matter covering incitement to violence, incitement to discrimination, incitement to hatred, ideas based on superiority, and similar illegal actions and hostility, article 20 (2) of the ICCPR include all the mentioned results except for superiority and article 13 (5) of the ACHR covers only incitement to violence and similar illegal actions. What is noted here, however, is that most of the results required by international law are already illegal actions, only hatred is not defined clearly enough to list or limit actions related to it, therefore, courts depend on the circumstance of each case separately along with the other elements and factors to determine on this element.[9]

To sum up the position of international law on hate speech, the general rule that is highly protected in international law tools is freedom of expression, including freedom of speech. This fundamental human rights, however, is not absolute; meaning that freedom of expression can be restricted to protect overriding public and individual interests. Hate speech, in many of the law tools, is one of these exceptions. Although the term itself does not have a clear and specific definition, courts and tribunals dealing with international law cases have looked for many elements and factors to determine whether a statement is considered as hate speech or is merely an offensive statement that is protected under the general rule. Basically, for a statement to qualify for punishable hate speech the speaker should have the intent to incite hatred, the statement itself should incite to hatred by creating an actual risk of harm, a close bond between the context of the statement and the result of it should appear either by causality or likely impact and finally one of the listed results in law should take place. Noting that discrimination and violence which are already illegal actions are not the only results required for hate speech but also any statement that intentionally incites to hatred even if not acted upon.

USA Constitutional Law Position  

Although the USA has ratified both the ICCPR and the CERD, it has entered reservations on both articles dealing with hate speech namely article 20 (2) of the ICCPR and article 4 (a) of the CERD, saying that the USA has the right to interpret these articles in a way compatible with the first amendment.

The First Amendment to the USA Constitution states “the Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and to petition the government for a redress of grievances.”

The USA Supreme Court that oversees constitutionality of statutes passed by states, and provides for law as a primary source, has extremely narrowed the scope of hate speech, to the extent that the term by itself does not exist in the United States. Meaning, speech no matter how offensive, hatful, degrading, and discriminatory is still protected under the first amendment as free speech and fundamental right. Very narrow exceptions, nonetheless, are recognized by the US Supreme Court where people can be punished for their words.[10]Before listing these exceptions, it is crucial to know that U.S. Supreme Court’s decisions apply directly to public agencies only, meaning that a discrimination made by public agencies is automatically unconstitutional once it meets the court tests and requirements, while a private discrimination becomes unlawful only when a legislation says so.[11]

  • Fighting words:

This most clear exception to the free speech clause included in the first amendment was first addressed, like all other exceptions, in the leading case R.A.V v. The City of St. Paul, Minnesota.[12] In 1992, a group of white teenagers burned a cross close to a black family house. The cross burning is a well known symbol of the KKK that believes in the white supremacy and adopts violence against people of color and government that does not hold their principles. R.A.V, who was one of the white teenagers, was arrested along with his friends and charged under two Minnesota laws:  a state law that prohibits assaulting people because of their race, color, religion, sex, sexual orientation, disability, age, or national origin, and a city ordinance which considers specific actions as misdemeanor, including burning a cross and displaying a Nazi swastika, along with any other action that might rise “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender…”

The US Supreme Court ruled that the ordinance of the city of St. Paul was unconstitutional as it restricted the clause of free speech, the court then limited the restriction to “conduct that itself inflicts injury or tends to incite immediate violence” which is referred to as “fighting words” exception that is unprotected by the First Amendment. The court clarified, however, that fighting words are prohibited because they are likely to provoke violence, not because they are bias or hatful. Thus, whether the act of R.A.V was punishable or not was not the main question asked by the court, rather, the court questioned the constitutionality of the legal grounds on which he was charged. Therefore, R.A.V and his friends were charged under two other laws one of them prohibits threatening and intimidating others in the exercise of their federally protected rights and the other prohibits intimidating others based on their race, color, religion, sex…

Similarly in Texas v. Johnson[13] and U.S. v. Eichman[14] the court held that neither the state nor the federal government can punish the burning of the flag just because of its symbolic meaning, and the only way to punish such action is if it threatens a physical object (property) or the safety of the owner.

Fighting words exception was also articulated in two other leading cases. In Cantwell v. Connecticut 1940[15], the U.S. Supreme Court held that a defendant’s, who was a Jehovah ’s Witness, conduct of asking a catholic man to listen to a record that attacked the Roman Catholic church should not be suppressed because of its content that was not “likely to provoke violence or disturbance of good order.”

In a second case, Terminiello v. Chicago[16], the defendant, who cursed at officials and other racial groups in a crowd saying they were “snakes” and “slimy scum”, the U.S. Supreme Court overturned the convection saying that the “Breach of Peace” ordinance, under which the defendant was convicted, was too broad. The ordinance prohibited any speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” The court, noting that the purpose of freedom of expression is to bring dispute, defined the exception of fighting words as “words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.”[17] Therefore, this exception could not be used to criminalize speech that incites to hatred because of two requirements: it should be addressed individually and directly, and it should invite a violent response from the hated person.

  • Speech that incites to violence and illegal actions:

This exception was first articulated by the US Supreme Court through a group of cases, known as Draft- Resistance cases,[18] after World War 1. Three different groups were involved in distribution of leaflets, newspapers, or public speech in which they advocated for resisting the American military conscription during the war. The three accused parties were actually convicted in lower courts under the Federal Espionage Act of 1917 for “willfully obstructing the recruiting or enlisting service of the United States.”

The U.S. Supreme Court sustained all three convections. A very important test was announced during these three cases; “clear and present danger test” was articulated by justice Holmes as follows “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent.” The court noted here that it was not necessary to prove an actual harm happened, an obstruction in these cases, as long as “the act, its tendency and the intent with which it is done are the same.”[19] However, it is important for us to note that these cases were connected to the time of war where many things “that hinder government effort are less tolerable than in peacetime” according to the court.

In another similar case, Abrams v. U.S. 1919[20], where the defendants distributed circulars calling for a worker strike to force the U.S. to stop its “intervention into Russia’s revolutionary war on the anti-Bolshevik side”. Although the court sustained the convection on the same grounds of the three previous cases, Justice Holmes dissented this time. Noted that there was neither an intent to hinder the U.S. war efforts against Germany, nor an actual danger on those efforts, Justice Holmes expanded in his clear and present danger test, and rearticulated it to “it is only the present danger of immediate evil or the intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” this new articulation of the test added three elements to it for a speech to be punished under Criminal Law, which were not obvious in the first draft:[21]

  • There should be a specific intent to bring about the forbidden result,
  • The forbidden result should be brought about immediately by such intent, and
  • There should be an “objective likelihood of success” under the circumstances of the case.

This test was used over and over in later similar cases. A set of new cases, however, known as the “red scare” cases, namely Gittow v. NY 1925[22] and Whitney v. California 1927[23], involved new details to the test. The U.S. Supreme Court sustained lower courts’ convections to defendants in both cases for advocacy to strikes that would bring about a communist revolution to the U.S. The Court noted that the test standard was met under the “reasonableness approach” meaning that the publications by their own nature brought “advocacy to violent overthrow” which is directly prohibited under law. Again Justice Holmes dissented, drawing a line between theory and actual incitement by saying “the only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result.” He also noted that the majority was not careful enough with the assessment of “likelihood of substantive harm” required by the test of clear and present danger.

A more leading case in this matter was seen by the court in 1969. Brandenburg v. Ohio[24] came up with a new even narrower approach in criminalizing hate speech in the U.S. The case involved a KKK leader public speech in which he allegedly said “if our government continues to suppress the white Caucasian race, it’s possible that there might be some revengeance taken.” The U.S. Supreme Court overturned the conviction of lower courts because the statute under which he was convicted did not require an incitement to the action. This new approach known as Brandenburg Formula started a constitutional standard of suppression of hate speech as “advocacy of unlawful action”. The formula that stated “cases since Whitney do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[25]

According to this narrow formula, for a speech to be suppressed there should be an intention to incite unlawful action, a likelihood that it would actually incite to such action and that this likely unlawful action is imminent! Making it very narrow to criminalize hatred speech made in public.

  • Group Libel or speech that harms others’ reputation and defames them:

This exception was raised by the argument that speech which degrades a group of persons because of their race, color, religion, sex… and thus damages their reputation should be as illegal as such speech defaming individuals. The leading case in this matter is Beauharnais v. Illinois.[26] The defendant who distributed a leaflet by the “White Circle League of America”, accusing black people collectively of “aggression, rapes, robberies, knives, guns and marijuana” was charged, not under the libel law, but under a special hate speech law that makes it a crime to produce publications which “portrays depravity, criminality, un-chastity, or lack of virtue of a class of citizens, which exposes the citizens of any race, color, creed, religion… to contempt, derision, or obloquy or which is productive of breach of the peace or riots.” The state Supreme Court considered the words of the defendant “liable to cause violence and disorder.” Now in a very narrow and rare decision, the U.S. Supreme court sustained that convection. Although, the court itself did not overturn this case later, many see this is no longer a good law, and the court itself drew a different line in latter cases.

Now for individual libel that defames a public official, the court has held a set of requirements for a specific speech to be criminalized and unprotected under the first amendment. In New York Times v. Sullivan,[27] the court required to a civil action of libel:

  • That the plaintiff is specifically mentioned,
  • The statement against him was false, and
  • That this statement was made with the knowledge that it was false, or with reckless disregard of whether it was false or not

These hard requirements are accompanied with complicated procedures since there is an overriding value to protect here “the national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open,” as articulated by the court.

One of the most notable and leading cases of hate speech in the modern history of the U.S. is the case of Nazi March in Skokie Chicago. In the 1970s the American Nazi Party decided to hold a march in the Chicago suburb of Skokie. The Jewish community that has holocaust survivors, in the area brought a legal case in front of the state courts. At the lower level, the court decided that the NSPA uniform along with displaying the swastika constitute “fighting words” that is likely to cause “violent reaction” within the Jewish community.  The state court, however, rejected these arguments and considered an “anticipated hostile audience reaction” insufficient to suppress the march. The court additionally rejected the group libel argument and held the march protected under the U.S. Constitution. The Supreme Court refused to review the case, and soon after, the party canceled its march.

To sum up this exception, group libel is not a valid and effective legal argument in a legal action against hate speech in the U.S…  On the criminal action side, the statement should be able to “cause an imminent violence or similar illegal act” to be suppress, while on a civil action side it should be addressed to individuals and meet specific requirements.

  • Speech that holds a direct threat of illegal harm to others

U.S. Supreme Court stated in many cases of hate speech directly threatens to harm others that such speech lacks the protection of the first amendment and thus must be punishable. However, in none of the case seen by the court, a clear definition of unprotected threat was formulated.

In the U.S. v. Watts 1969[28], the Supreme Court reversed the defendant’s convection held by lower courts for threatening to kill the U.S. President Lyndon Johnson in a protest in D.C. The Court stated that for a threat to be excluded from freedom of expression principle it should be “true threat” which was not met in the defendant’s case that was, according to the court, “nothing more than political hyperbole” protected by the first amendment.

Similarly, in NAACP v. Claiborne Hardware 1982[29], the U.S. Supreme Court focused on the “true threat” standard to hold that the defendant: Charles Evers, who was a leader of a Black Civil Rights Organization, should not be held liable because of a statement that he made in a boycott protest against business owners who failed to fulfill their responsibility to eliminate segregation and discrimination in their businesses. According to the Court, Charles threat to boycott-breakers to “have their necks broken” by their own people was not a true threat that would “incite to an unlawful act” especially that no violence took place after the speech was made.

Because no clear definition to the exception “true threat” was made by the U.S. Supreme Court, lower courts had to come up with an acceptable standard for cases that fall within this exception. Reasonable speaker- reasonable listener test has been applied by courts to examine the presence of “true threat” exception. This test mainly questions if the speaker “could reasonably have foreseen that the statement he uttered would be taken as a threat by those to whom it is made” regardless of his intention or of message reception by the addressee.

This test was applied in the famous case Planned Parenthood of the Columbia-Willamette Inc. v. American Coalition of Life Activities 1999.[30] Although this case did not reach the U.S. Supreme Court, very important standards regarding “true threat” exception were adopted while seeing it in front of lower and appeal courts.  An anti-abortion group published posters and maintained a web site of names and addresses of abortion providers accusing them of “crimes against humanity”. Many of the providers and workers listed in the posters and web site were murdered or wounded. After every accident, the web site would provide the names of the killed and the names of the remaining.

A case was brought in front of judiciary on the basis of threatening of harm to others. The lower court stated that the group publications and activities constitute true threats of violence. A panel of the 9th circuit court, however, reversed the decision saying that the threats were not true and no advocacy of or incitement to violence were expressed in the posters or on the web site, noting that the group publications were held in public and could not form direct and personal communications.  The panel’s decision was reconsidered by the 9th circuit court of appeals en banc, the court, applying the reasonable test,  reversed the decision and considered both the posters and web site true threats to others whether the group meant it or not and held “true threats, defined as a statement which, under all the circumstances, the reasonable speaker could foresee it would be interpreted by its addressee(s) as a serious expression of intent to inflict bodily harm on them and made with intent to intimidate them.” [31]

  • Hostile environment in the work place:

U.S. Federal law explicitly forbids discrimination in work places. Civil Rights Act of 1964 provision 703 (a) (1) directly prohibits private discrimination in employment (work conditions, hiring, firing, terms of work…” and any other discriminatory conduct that may make a job more difficult to an employee on the basis of race, religion, color, sex, national origin… “Hostile or abusive work environment” is recognized by courts as one form of this prohibited discrimination. A reasonable test was also adopted for this case stating that any condition which would cause a reasonable person in the victim’s position to perceive the environment as hostile or abusive is unprotected under the first amendment. The U.S. Supreme Court has listed this reason as a direct and clear exception to the free speech principle in the leading case of R.A.V.

  • Hate crimes:

This section is a little bit different than previous ones, as we are not talking about speech here, rather, about conduct of actions that are already illegal and criminalized but motivated by hatred. The U.S. Supreme Court has distinguished between expressing a thought and acting upon that thought expression, in other words, the court has found a sharp distinction between “punishing the expression of a bigoted idea as such and punishing an act because of its motivation in bigotry.”[32]

The leading case in this matter is Wisconsin v. Mitchell 1993.[33] In this case a group of black men have watched a movie about white racist violence and were outraged swearing to beat the first white person they meet. Out of the movie theater, the group and, mainly Mitchell, bet the first white man they ran to and were convicted with the ordinary crime of “aggravated battery or severe beating” a crime that normally carries a maximum sentence of two years imprisonment. Mitchell and his group, however, were sentenced instead to four years in prison under a state law that enhances punishment for criminal acts against persons and property in case the defendant intentionally chose his victim on the grounds of race, religion, sex, color, disability…

Mitchell challenged this law as a violation of his freedom to speech. Wisconsin Supreme Court agreed to his argument and reversed the state court decision saying that a bigoted thought could not be punished as such even if it motivated the crime. The U.S. Supreme Court, however, did not agree and reversed the latter decision distinguishing between punishing the defendant’s thoughts and beliefs solely and considering the “prejudice motive” for an illegal conduct or crime. The court held the Wisconsin Statute that enhanced the punishment on the grounds of its bigoted motive as constitutional because it “aimed at conduct” especially that such motivated crimes “inflict greater individual and social harm than crimes committed without such motive.”[34]

Now all States have “hate crime” laws that address already illegal criminalized actions under the general criminal law but at the same time have a bias motive. Some states, however, focus on the conduct itself more than the motivated intention of  choosing a victim for his/her  race, religion, color, sex… other states, on the other hand, consider such motivations. The general and most common model, though, is the “because of” criterion that gives courts a wide authority in broadening or narrowing the interpretation of the action/expression distinction depending on the circumstance of the case. The most common prohibited criteria are; race, religion, color, national origin and sex; however, new ones are added to the list especially disability, age and sexual orientation.[35]

Conclusion:

The U.S. has a sacred value for freedom of expression. Unlike international law, speech that is considered hatful, bigotry, degrading and discriminatory, and incites other to hatred, despite its social and psychological harm, is actually protected under the First Amendment to the U.S. Constitution.

Only when the expression takes the form of an actual violence or an already illegal conduct or constitutes an immediate and real threat to such action, a limit to speech is set, and even then, the suppression is aimed at the action not the thought behind it.

Government may not, according to the first amendment, suppress or punish speech unless it provokes a likelihood of imminent violence. This standard has set a very limited and hard line to cross, making speech that advocates to violence, hate, terrorism, prejudice, and even overthrow of government or threat to kill the president, send Africans back to Africa, build a wall between the U.S and Mexico, kill Muslims or stop them from entering the states as protected as any other speech unless such words are intended and actually are likely to produce violence or unlawful conduct.

This does not mean that the first amendment is absolute, rather very limited exceptions are recognized by the U.S. Supreme Court to suppress expression, in addition to obscene speech and child pornography, fighting words in the narrower sense that provokes imminent violence, true threats of violence, unlawful discrimination in work place, and individual libel are accepted as legal grounds to punish speech. However, narrow and sharp tests are set for each of these exceptions making it very difficult to punish expression unless it was accompanied or about to be accompanied by violence. Enhancing a crime, nonetheless, because of its bigot motivation is accepted by the court.

These narrow exceptions directly address government and public agencies, private parties are excluded and may thus have their own laws and exceptions.

This libertarian point of view has its good and bad sides. Although it becomes harder and harder to combat hatred and bigotry in the states, many consider the solution of more countering speech not of suppressing ideas and thoughts, especially that what one may see as hatful others may consider as a mere fact or point of view. To sum it up “more speech rather than less is the remedy”. [36]

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[1] Article 2 of the UDHR

[2] This is the American Bar Association definition of the term. International treaties do not provide a specific definition of the term but most of groups and organizations deal with human rights have a similar definition of the term.

[3] Mendel, Toby. Hate Speech Rules under International Law. 2010

[4] Ibid

[5] Ibid

[6] The article states the following “any propaganda for war and any advocacy or national, racial, or religious hatred that constitutes incitements to lawless lawless violence or to any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.”

[7] Mendel, Toby. Hate Speech Rules under International Law. 2010

[8] In addition to the previously mentioned articles, article 7 of the UDHR on equal protection against discrimination and incitement to discrimination require it. However, article 4 (a) of the CERD does not require it for ideas related to racial superiority or racial hatred.

[9] You can go back to different definitions provided for hatred in the beginning of this section

[10] Fisch, William B. Hate Speech in the Constitutional Law of the United States. 2002.

[11] Ibid

[12] 505 US 377 (1992)

[13] 491 U.S. 397 (1989)

[14] 496 US 310 (1990)

[15]310 US 296 (1940)

[16] 337 US 1 (1949)

[17] This definition was provided by the court in Gooding v. Wilson 1972

[18] Schenek v. U.S. 1919, Forhwerk v. U.S. 1919, and Debs v. U.S. 1919

[19] Fisch, Ibid

[20] 250 US 616 (1919)

[21] Fisch, Ibid

[22] 268 US 652 (1925)

[23] 274 US 357 – 1927

[24] 395 US 444 (1969)

[25] Fisch, Ibid

[26] 343 US 250 (1952)

[27] 376 US 254 (1964)

[28] 67 F. 3d 790 (CA9 1995)

[29] 458 U.S. 886 (1982)

[30] 41 F. Supp. 2d 1130 (D. Ore.), aff’d in part and remanded, 290 F. 3d 1058 (9th Cir. 2002)

[31] Fisch, Ibid

[32] Ibid

[33] 508 US 476 – 1993

[34] Ibid

[35] Ibid

[36] Know your constitution, free speech and hate speech

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