Censorship in America: Hate Speech Overview

Hate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, disability, sexual orientation, nationality, religion, or other characteristic.

In law, hate speech is any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by race, gender, ethnicity, disability, nationality, religion, sexual orientation, gender identity, or other characteristic. In some countries, a victim of hate speech may seek redress under civil law, criminal law, or both. A website that uses hate speech is called a hate site. Most of these sites contain Internet forums and news briefs that emphasize a particular viewpoint. There has been debate over how freedom of speech applies to the Internet. Conferences concerning such sites have been sponsored by the United Nations High Commissioner for Refugees. International Covenant on Civil and Political Rights (ICCPR) also states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. Convention on the Elimination of All Forms of Racial Discrimination as well prohibits all incitement of racism. On May 3, 2011, Michael O’Flaherty with the United Nations Human Rights Committee published General Comment No. 34 on the International Covenant on Civil and Political Rights, which among other comments expresses concern that many forms of “hate speech” do not meet the level of seriousness set out in Article 20.

Critics have argued that the term “Hate Speech” is a modern example of Newspeak, used to silence critics of social policies that have been poorly implemented in a rush to appear politically correct.

There is an international consensus that hate speech needs to be prohibited by law, and that such prohibitions override or are irrelevant to guarantees of freedom of expression. The United States is unique among the developed world in that under law, hate speech regulation is incompatible with free speech.

^{By Country}

Australia

Australia’s hate speech laws vary by jurisdiction, and seek especially to prevent victimisation on account of race.

Belgium

The Belgian Anti-Racism Law, in full, the Law of July 30, 1981 on the Punishment of Certain Acts inspired by Racism or Xenophobia, is a law against hate speech and discrimination passed by the Federal Parliament of Belgium in 1981 which made certain acts motivated by racism or xenophobia illegal. It is also known as the Moureaux Law.

The Belgian Holocaust denial law, passed on March 23, 1995, bans public Holocaust denial. Specifically, the law makes it illegal to publicly “deny, play down, justify or approve of the genocide committed by the German National Socialist regime during the Second World War”. Prosecution is led by the Belgian Centre for Equal Opportunities. The offense is punishable by imprisonment of up to one year and fines of up to 2500 EUR.

Brazil

In Brazil, according to the 1988 Brazilian Constitution, racism and other forms of race-related hate speech are “imprescriptible crime(s) with no right to bail to its accused”. In 2006, a joint-action between the Federal Police and the Argentine police has cracked down several hate-related websites. However, some of these sites have recently reappeared—the users have re-created the same sites on United States’ domains. The federal police have asked permission from the FBI to crack down these sites, but the FBI denied, stating that the First Amendment guarantees the right to any speech, even if it involves racism.

Canada

In Canada, advocating genocide or inciting hatred against any ‘identifiable group’ is an indictable offence under the Criminal Code of Canada with maximum prison terms of two to fourteen years. An ‘identifiable group’ is defined as ‘any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.’ It makes exceptions for cases of statements of truth, and subjects of public debate and religious doctrine. The landmark judicial decision on the constitutionality of this law was R. v. Keegstra (1990).

Council of Europe

The Council of Europe has worked intensively on this issue. While Article 10 of the European Convention on Human Rights does not prohibit criminal laws against revisionism such as denial or minimization of genocides or crimes against humanity, as interpreted by the European Court of Human Rights, the Committee of Ministers of the Council of Europe went further and recommended to member governments to combat hate speech under its Recommendation R (97) 20. The Council of Europe also created the European Commission against Racism and Intolerance, which has produced country reports and several general policy recommendations, for instance against anti-Semitism and intolerance against Muslims.

Croatia

Croatian constitution guarantees freedom of speech, but Croatian penal code prohibits and punishes anyone “who based on differences of race, religion, language, political or any other belief, wealth, birth, education, social status or other properties, gender, skin color, nationality or ethnicity violates basic human rights and freedoms recognized from international community”.

Denmark

Denmark prohibits hate speech, and defines it as publicly making statements that threaten, ridicule or hold in contempt a group due to race, skin colour, national or ethnic origin, faith or sexual orientation.

Finland

There has been considerable debate over the definition of “hate speech” (vihapuhe) in the Finnish language.

If “hate speech” is taken to mean ethnic agitation, it is prohibited in Finland and defined in the section 11 of the penal code, War crimes and crimes against humanity, as publishing a fact, an opinion or other statement that threatens or insults a group on basis of race, nationality, ethnicity, religion or conviction, sexual orientation, disability, or any comparable basis. Ethnic agitation is punishable with a fine or up to 2 years in prison, or 4 months to 4 years if aggravated (such as incitement to genocide).

Critics claim that, in political contexts, labeling certain opinions and statements “hate speech” can be used to silence unfavorable or critical opinions and play down debate. Certain politicians, including Member of Parliament Jussi Halla-aho, consider the term “hate speech” problematic because of the lack of an easy definition.

^France

France prohibits by its penal code and by its press laws public and private communication which is defamatory or insulting, or which incites discrimination, hatred, or violence against a person or a group of persons on account of place of origin, ethnicity or lack thereof, nationality, race, specific religion, sex, sexual orientation, or handicap. The law prohibits declarations that justify or deny crimes against humanity, for example, the Holocaust (Gayssot Act).

Germany

In Germany, Volksverhetzung (“Sedition”) is a punishable offense under Section 130 of the Strafgesetzbuch (Germany’s criminal code) and can lead to up to five years imprisonment. Section 130 makes it a crime to publicly incite hatred against parts of the population or to call for violent or arbitrary measures against them or to insult, maliciously slur or defame them in a manner violating their (constitutionally protected) human dignity. Thus for instance it is illegal to publicly call certain ethnic groups “maggots” or “freeloaders”. Volksverhetzung is punishable in Germany even if committed abroad and even if committed by non-German citizens, if only the incitement of hatred takes effect within German territory, e.g. the seditious sentiment was expressed in German writ or speech and made accessible in Germany (German criminal code’s Principle of Ubiquity, Section 9 §1 Alt. 3 and 4 of the Strafgesetzbuch).

Iceland

In Iceland, the hate speech law is not confined to inciting hatred, as one can see from Article 233 a. in the Icelandic Penal Code, but includes simply expressing such hatred publicly:

Anyone who in a ridiculing, slanderous, insulting, threatening or any other manner publicly assaults a person or a group of people on the basis of their nationality, skin colour, race, religion or sexual orientation, shall be fined or jailed for up to 2 years. (The word “assault” in this context does not refer to physical violence, only to expressions of hatred.)

India

India prohibits any manner of expression which someone might consider insulting to his religion or which for whatever reason might disturb public tranquility. Under article 19(2) of the constitution of India certain reasonable restrictions have been imposed on the right of freedom of speech and expression such as sovereignty and integrity of India, the security of the state, friendly relations with the foreign states, public order, decency and morality or in relation to contempt of court, defamation or incitement to an offense.

Ireland

In Ireland, the right to free speech is guaranteed under the Constitution (Article 40.6.1.i), however, this is only an implied right provided that liberty of expression “shall not be used to undermine public order or morality or the authority of the State”. The Prohibition of Incitement to Hatred Act 1989, proscribes words or behaviours which are “threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred” against “a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.”

Jordan

In 2006, two Jordanian newspaper editors were jailed for two months after being found guilty of “attacking religious sentiment.” The editors had reprinted cartoons from the Danish newspaper Jyllands-Posten.

Netherlands

The Dutch penal code prohibits both insulting a group (article 137c) and inciting hatred, discrimination or violence (article 137d). The definition of the offences as outlined in the penal code is as follows:

• Article 137c: He who publicly, orally, in writing or graphically, intentionally expresses himself insultingly regarding a group of people because of their race, their religion or their life philosophy, their heterosexual or homosexual orientation or their physical, psychological or mental disability, shall be punished by imprisonment of no more than a year or a monetary penalty of the third category.
• Article 137d: He who publicly, orally, in writing or graphically, incites hatred against, discrimination of or violent action against person or belongings of people because of their race, their religion or their life philosophy, their gender, their heterosexual or homosexual orientation or their physical, psychological or mental disability, shall be punished by imprisonment of no more than a year or a monetary penalty of the third category.

In January 2009, a court in Amsterdam ordered the prosecution of Geert Wilders, a Dutch Member of Parliament, for breaching articles 137c and 137d. On 23 June 2011, Wilders was acquitted of all charges.

New Zealand

New Zealand prohibits hate speech under the Human Rights Act 1993. Section 61 (Racial Disharmony) makes it unlawful to publish or distribute “threatening, abusive, or insulting…matter or words likely to excite hostility against or bring into contempt any group of persons…on the ground of the colour, race, or ethnic or national or ethnic origins of that group of persons.” Section 131 (Inciting Racial Disharmony) lists offences for which “racial disharmony” creates liability.

Norway

Norway prohibits hate speech, and defines it as publicly making statements that threaten or ridicule someone or that incite hatred, persecution or contempt for someone due to their skin colour, ethnic origin, homosexual life style or orientation or, religion or philosophy of life.

Poland

The hate speech laws in Poland punish those who offend the feelings of the religious by e.g. disturbing a religious ceremony or creating public calumny. They also prohibit public expression that insults a person or a group on account of national, ethnic, racial, or religious affiliation or the lack of a religious affiliation.

Serbia

The Serbian constitution guarantees freedom of speech, but declares that it may be restricted by law to protect rights and respectability of others. Because of inter ethnic conflicts during last decade of 20th century, Serbian authorities are very rigorous about ethnic, racial and religion based hate speech. It is processed as “Provoking ethnic, racial and religion based animosity and intolerance” criminal act, and punished with six months to ten years of imprisonment.

Singapore

Singapore has passed numerous laws that prohibit speech that causes disharmony among various religious groups. The Maintenance of Religious Harmony Act is an example of such legislation. The Penal Code criminalizes the deliberate promotion by someone of enmity, hatred or ill-will between different racial and religious groups on grounds of race or religion. It also makes it an offence for anyone to deliberately wound the religious or racial feelings of any person.

South Africa

In South Africa, hate speech (along with incitement to violence and propaganda for war) is specifically excluded from protection of free speech in the Constitution. The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 contains the following clause:

No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to―

1. be hurtful;
2. be harmful or to incite harm;
3. promote or propagate hatred.

The “prohibited grounds” include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

The crime of crimen injuria (“unlawfully, intentionally and seriously impairing the dignity of another”) may also be used to prosecute hate speech.

Sweden

Sweden prohibits hate speech, and defines it as publicly making statements that threaten or express disrespect for an ethnic group or similar group regarding their race, skin colour, national or ethnic origin, faith or sexual orientation. The crime doesn’t prohibit a pertinent and responsible debate (en saklig och vederhäftig diskussion), nor statements made in a completely private sphere. There are constiutional restrictions pertaining to which acts are criminalized, as well limits set by the European Convention on Human Rights.

The sexual orientation provision, added in 2002, was used to convict Pentecostalist pastor Åke Green of hate speech based on a 2003 sermon. His conviction was later overturned.

Switzerland

In Switzerland public discrimination or invoking to rancor against persons or a group of people because of their race, ethnicity, is getting penalized with a term of imprisonment until 3 years or a mulct. In 1934, the authorities of the Basel-Stadt canton criminalized anti-Jewish hate speech, e.g. the accusation of ritual murders, mostly in reaction against a pro-nazi antisemitic group and newspaper, the Volksbund.

Thailand

In Thailand hate speech (การพูดซึ่งมีเจตนาทางเกลียดชัง) is formally prohibited in civil and criminal statutes, but state machinery and society as a whole generally do little to prevent it or prosecute parties promoting or engaging in hate speech. While the Thai State offers recourse in the courts to obtain satisfaction after the fact, Thai authorities, NGOs and others generally offer little or no protection in preventing hate speech. The country’s strict defamation laws are more designed to protect reputations and the institution of the monarchy and not to protect individuals or groups in freely exercising legitimate rights.

United Kingdom

Hate speech laws in the United Kingdom are found in several statutes. Expressions of hatred toward someone on account of that person’s colour, race, nationality (including citizenship), ethnic or national origin, religion, or sexual orientation is forbidden. Any communication which is threatening, abusive or insulting, and is intended to harass, alarm, or distress someone is forbidden. The penalties for hate speech include fines, imprisonment, or both.

In England, Wales, and Scotland, the Public Order Act 1986 prohibits, by its Part 3, expressions of racial hatred, which is defined as hatred against a group of persons by reason of the group’s colour, race, nationality (including citizenship) or ethnic or national origins. Section 18 of the Act says:

A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if—

(a) he intends thereby to stir up racial hatred, or

(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.

Offences under Part 3 carry a maximum sentence of seven years imprisonment or a fine or both.

The Criminal Justice and Public Order Act 1994 inserted Part 4A into the Public Order Act 1986. That part prohibits anyone from causing alarm or distress. Part 4A states:

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

A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

The Racial and Religious Hatred Act 2006 amended the Public Order Act 1986 by adding Part 3A. That Part says, “A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.” The Part protects freedom of expression by stating in Section 29J:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

The Criminal Justice and Immigration Act 2008 amended Part 3A of the Public Order Act 1986. The amended Part 3A adds, for England and Wales, the offence of inciting hatred on the ground of sexual orientation. All the offences in Part 3 attach to the following acts: the use of words or behaviour or display of written material, publishing or distributing written material, the public performance of a play, distributing, showing or playing a recording, broadcasting or including a programme in a programme service, and possession of inflammatory material. In the circumstances of hatred based on religious belief or on sexual orientation, the relevant act (namely, words, behaviour, written material, or recordings, or programme) must be threatening and not just abusive or insulting.

The Football Offences Act 1991 (amended by the Football (Offences and Disorder) Act 1999) forbids indecent or racialist chanting at designated football matches.

Selected cases

On 20 April 2010, police arrested Dale McAlpine, a Christian preacher, of Workington in Cumbria, for saying that homosexual conduct was a sin. On 14 May 2010, the Crown decided not to prosecute McAlpine.

On 4 March 2010, a jury returned a verdict of guilty against Harry Taylor, who was charged under Part 4A of the Public Order Act 1986. Taylor was charged because he left anti-religious cartoons in the prayer-room of Liverpool’s John Lennon Airport on three occasions in 2008. The airport chaplain, who was insulted, offended, and alarmed by the cartoons, called the police. On 23 April 2010, Judge Charles James of Liverpool Crown Court sentenced Taylor to a six-month term of imprisonment suspended for two years, made him subject to a five-year Anti-Social Behaviour Order (ASBO) (which bans him from carrying religiously offensive material in a public place), ordered him to perform 100 hours of unpaid work, and ordered him to pay £250 costs. Taylor was convicted of similar offences in 2006.

On 8 December 2009, Mr Justice Richard Clancy, sitting at Liverpool Magistrates’ Court, acquitted Ben and Sharon Vogelenzang, hoteliers, of charges under the Public Order Act 1986 and under the Crime and Disorder Act 1998. The Vogelensangs were charged after a guest at their hotel, Ericka Tazi, complained that the Vogelenzangs had insulted her after she appeared in a hijab.

On 2 September 2006, Stephen Green was arrested in Cardiff for distributing pamphlets which called sexual activity between members of the same sex a sin. On 28 September 2006, the Crown advised Cardiff Magistrates Court that it would not proceed with the prosecution.

On 13 October 2001, Harry Hammond, an evangelist, was arrested and charged under section 5 of the Public Order Act (1986) because he had displayed to people in Bournemouth a large sign bearing the words “Jesus Gives Peace, Jesus is Alive, Stop Immorality, Stop Homosexuality, Stop Lesbianism, Jesus is Lord”. In April 2002, a magistrate convicted Hammond, fined him £300, and ordered him to pay costs of £395.

United States

Laws prohibiting hate speech are unconstitutional in the United States, outside of obscenity, defamation, incitement to riot, and fighting words. The United States federal government and state governments are broadly forbidden by the First Amendment of the Constitution from restricting speech.

The “reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey.” Even in cases where speech encourages illegal violence, instances of incitement qualify as criminal only if the threat of violence is imminent. This strict standard prevents prosecution of many cases of incitement, including prosecution of those advocating violent opposition to the government, and those exhorting violence against racial, ethnic, or gender minorities.

Under Title VII of the Civil Rights Act of 1964, employers may sometimes be prosecuted for tolerating “hate speech” by their employees, if that speech contributes to a broader pattern of harassment resulting in a “hostile or offensive working environment” for other employees.

In the 1980s and 1990s, more than 350 public universities adopted “speech codes” regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment. Debate over restriction of “hate speech” in public universities has resurfaced with the adoption of anti-harassment codes covering discriminatory speech.

Hate speech in media

In 1993, the National Telecommunications and Information Administration (NTIA) released a report titled “The Role of Telecommunications in Hate Crimes.” This report gave one of the first definitions by government on hate speech. According to NTIA hate speech is:

• Speech that advocates or encourages violent acts or crimes of hate.
• Speech that creates a climate of hate or prejudice, which may in turn foster the commission of hate crimes.

NTIA 1993 Report

In 1992, Congress directed the National Telecommunications and Information Administration (NTIA) to examine the role of telecommunications, including broadcast radio and television, cable television, public access television, and computer bulletin boards, in advocating or encouraging violent acts and the commission of hate crimes against designated persons and groups. The NTIA study investigated speech that fostered a climate of hatred and prejudice in which hate crimes may occur. Study findings revealed only a few instances during the past decade in which broadcast facilities were used to spread messages of hate and bigotry. In two such instances, radio broadcasts arguably urged an audience to commit hate-motivated crimes. In other instances, radio broadcast licensees aired programming that evidenced prejudice. A few highly publicized cable television programs promoted messages of hate and bigotry. In some cases, cable programming stirred community reaction and was followed by counterprogramming. During the 1980s, computer bulletin boards were established by various white supremacist and neo-Nazi groups, but many fell into disuse later in the decade. The study also found that hate “hotlines” are used to deliver recorded messages of bigotry and prejudice and that telephones can be used to intimidate, threaten, and harass individuals and organizations. NTIA’s research suggests that hate messages represent a very small percentage of electronic communications media and that the best response is public education rather than government censorship and regulation. Legal remedies involving the use of telecommunications to commit or encourage hate crimes are discussed, as well as technologies that can protect or empower targets of hate speech.

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In January, 2009, the National Hispanic Media Coalition (NHMC), a not for profit organization with a mission to improve the image of American Latinos as portrayed by the media, unveiled a three prong strategy to address the issue of hate speech in media. 1) NHMC filed a petition for inquiry into hate speech with the Federal Communications Commission (FCC). The petition urges the Commission to examine the extent and effects of hate speech in media, including the likely link between hate speech and hate crimes, and to explore non-regulatory ways in which to counteract its negative impacts. 2) NHMC asked the National Telecommunications and Information Administration (NTIA) to update its 1993 report “The Role of Telecommunications in Hate Crimes”; 3) NHMC collaborated with the UCLA/Chicano Research Study Center (CRSC) to produce groundbreaking research on the subject. “Hate Speech on Commercial Radio, Preliminary Report on a Pilot Study” was also released in January, 2009.

“Hate Speech on Commercial Radio” categorized hate speech in four different areas.

• False facts
• Flawed argumentation
• Divisive language
• Dehumanizing metaphors

In May 2010, NHMC filed comments in the FCC’s proceeding on the Future of Media and Information Needs of Communities in the Digital Age. Joined by 32 national and regional organizations from throughout the country, the comments ask the FCC to examine hate speech in media. In its comments, NHMC reinforces the need for the FCC to act on NHMC’s petition for inquiry on hate speech in media filed in January 2009.

 

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