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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 certain characteristics. 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.
Critics have argued that the term "hate speech" is a contemporary example of Newspeak, used to silence critics of social policies that have been poorly implemented in a rush to appear politically correct.
The International Covenant on Civil and Political Rights (ICCPR) states that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law". The Convention on the Elimination of All Forms of Racial Discrimination (ICERD) prohibits all incitement of racism. On 3 May 2011, Michael O'Flaherty with the United Nations Human Rights Committee published General Comment No. 34 on the ICCPR, which among other comments expresses concern that many forms of "hate speech" do not meet the level of seriousness set out in Article 20. Concerning the 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.
The Belgian Anti-Racism Law, in full, the Law of 30 July 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 23 March 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.
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.
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).
Article 31 of the "Ley sobre Libertades de Opinión e Información y Ejercicio del Periodismo" (statute on freedom of opinion and information and the performance of journalism), punishes with a high fine those who “through any means of social communication makes publications or transmissions intended to promote hatred or hostility towards persons or a group of persons due to their race, sex, religion or nationality". This norm has been applied to expressions proffered through the internet. There is also a rule aggravating the penalties of crimes when they are motivated by discriminatory hatred.
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 (ECtHR), 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 ECtHR does not offer an accepted definition for "hate speech" but instead offers only parameters by which prosecutors can decide if the "hate speech" is entitled to the protection of freedom of speech.
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.
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 prohibits hate speech, and defines it as publicly making statements by which a group is threatened (trues), insulted (forhånes) or degraded (nedværdiges) due to race, skin colour, national or ethnic origin, faith or sexual orientation.
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 data, 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 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).
In Germany, Volksverhetzung ("incitement of popular hatred") 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).
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 prohibits any manner of expression which someone might consider insulting to his religion or which for whatever reason might disturb public tranquility.[dubious ] Freedom of speech and expression is protected by article 19 (1) of the constitution of India, but under article 19(2) "reasonable restrictions" can be imposed on freedom of speech and expression in the interest of "the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."
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."
Several Jordanian laws seek to prevent the publication or dissemination of material that would provoke strife or hatred:
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:
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 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 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 orientation, religion or philosophy of life. At the same time, the Norwegian Constitution guarantees the right to free speech, and there has been an ongoing public and judicial debate over where the right balance between the ban against hate speech and the right to free speech lies. Norwegian courts have been restrictive in the use of the hate speech law and only few persons have been sentenced for violating the law since its implementation in 1970. A public Free Speech committee (1996-1999) recommended to abolish the hate speech law but the Norwegian Parliament instead voted to slightly strengthen it.
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.
The Serbian constitution guarantees freedom of speech, but restricts it in certain cases to protect human rights. The criminal charge of "Provoking ethnic, racial and religion based animosity and intolerance" carries a minimum six months prison term and a maximum of ten years.
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.
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:
[N]o 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―
- be hurtful;
- be harmful or to incite harm;
- 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.
In 2011, a South African court banned "Dubulu iBhunu (Shoot the Boer)," a derogatory song degrading Afrikaners, on the basis that it violated a South African law prohibiting speech that demonstrates a clear intention to be hurtful, to incite harm, or to promote hatred.
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 constitutional restrictions pertaining to which acts are criminalized, as well limits set by the European Convention on Human Rights.
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.
In Thailand hate speech (การสื่อสารซึ่งมีเจตนาทางเกลียดชัง or การพูดซึ่งมีเจตนาทางเกลียดชังให้เกิดการเกลียดชังอีกฝ่ายหนึ่ง), transliterated as เฮทสปีช, is 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.
In the United Kingdom, several statutes criminalize hate speech against several categories of persons. The statutes forbid communication which is hateful, threatening, abusive, or insulting and which targets a person on account of skin colour, race, disability, nationality (including citizenship), ethnic or national origin, religion, or sexual orientation. The penalties for hate speech include fines, imprisonment, or both. Legislation against Sectarian hate in Scotland, which is aimed principally at football matches, does not criminalise jokes about peoples’ beliefs, nor outlaw “harsh” comment about their religious faith.
The 1789 Constitution of the USA dealt only with the three heads of power; legislative, executive, and judicial, and sketched the basic outlines of federalism in the last four articles. The protection of civil rights is not found in the original Constitution but was added two years later with the Bill of Rights. The first amendment, ratified, December 15, 1791, states;
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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Although this section is written only to apply to the federal congress (i.e. the legislative branch), the 14th amendment, ratified on July 9, 1868, works to extend this protection to laws of the states as well .
Some limits on expression were contemplated by the framers and have been read into the Constitution by SCOTUS. In 1942, Justice Frank Murphy summarized the case law as follows; "There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or “fighting” words – those which by their very utterances inflict injury or tend to incite an immediate breach of the peace."
Traditionally, however, if the speech did not fall within one of the above categorical exceptions, it was protected speech. In 1969, SCOTUS protected a Ku Klux Klan member’s racist and hate filled speech and created the ‘imminent danger’ test to permit hate speech. The court ruled in Brandenburg v. Ohio that; "The constitutional guarantees of free speech and free press 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 imminent lawless action and is likely to incite or produce such action."
This test has been modified very little from its inception in 1969 and the formulation is still good law in the US. Only speech that poses an imminent danger of unlawful action, where the speaker has the intention to incite such action and there is the likelihood that this will be the consequence of his or her speech, may be restricted and punished by that law.
In R.A.V. v. City of St. Paul, (1992), the issue of freedom to express hatred arose again when a gang of white racists burned a cross in the front yard of a black family. The local ordinance in St. Paul, Minnesota, criminalized such racist and hate-filled expressions and the teenager was charged thereunder. Scalia, writing for SCOTUS, held that the prohibition against hate speech was unconstitutional as it contravened the first amendment. SCOTUS struck down the ordinance. Scalia explicated the fighting words exception as follows: “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.” Because the hate speech ordinance was not concerned with the mode of expression, but with the content of expression, it was a violation of the freedom of speech. Thus, SCOTUS embraced the idea that hate speech is permissible unless it will lead to imminent hate violence.
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.
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. A list of commenters is appended. 285 footnotes
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:
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.
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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