Sept. 25, 2017

From nearly all vantage points, the United States stands apart from its peers in the West for its lax legal treatment of hate speech. As noted in one New York Times article, “What much of [the] West bans is protected in [the] US.” Fundamentally, our nation has prioritized the right of one person’s capacity to employ hateful jargon over the right of another individual’s access to security and basic human dignity.

As noted in that same Times article, while Canada, Britain, France, Germany, the Netherlands, South Africa, Australia, and India each employ laws or have signed international conventions banning hate speech, the US would not even “stop the American Nazi Party from marching in Skokie, Illinois, in 1977, though the march was deeply distressing to the many Holocaust survivors there.” 

Although many critics in the US argue that free speech should be a limitless right, unbound by concerns over the very real pain, anguish, or distress felt by those who may be targeted by such speech (such as the Holocaust survivors in Illinois in 1977), other similarly-developed nations have discovered great societal benefits in curtailing some forms of hateful speech—and ensuring all groups can express their identities and beliefs safely. Canada, for example, has outlawed public statements that purposely promote hatred towards identifiable groups. In one case in which its Supreme Court upheld this law, the Court noted that its purpose was to: 

"bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons."

Indeed, Canada’s leading legal thinkers determined basic “mutual respect” to be crucial to the functioning of a diverse nation whose citizenry enjoys equal rights and dignity. Similarly, in Australia, the Racial Discrimination Act 1975 bans several forms of hate speech, making certain acts unlawful if:

"the act is reasonably offend, insult, humiliate or intimidate another person or a group of people; and the act is done because of the race, colour or national or ethnic origin of the other person, or of some or all of the people in the group."

Yet it is Germany, a country with likely the most well-known history of far-right violence, that today enforces the most stringent laws against hate speech, outlawing language that: 

incites hatred against a national, racial, religious group or a group defined by their ethnic origins, against segments of the population or individuals because of their belonging to one of the aforementioned groups...or;
assaults the human dignity of others by insulting, maliciously maligning...segments of the population or individuals because of their belonging to one of the aforementioned groups...or defaming segments of the population

The country is perhaps all too aware of the serious threats to social cohesion and human dignity that such unchecked speech can unleash. Moreso than any other country, Germany rightfully recognizes hate speech as the active agent of vitriolic ideologies, a toxic pollutant that can spread rapidly through society and tear apart the credibility, dignity, and security of certain populations while encouraging others to act with similar hatred and disregard for humanity.  

One German politician, speaking of a recently-passed law to regulate hate speech online, noted that the law would, in fact:

“ensure that everybody can express their opinion freely, without being insulted or threatened.” 

The law, a first of its kind, requires social media companies to remove illegal content within 24 hours of it being reported or face serious fines. Heiko Maas, the justice minister who drew up the legislation, noted that:

“With this law, we put an end to the verbal law of the jungle on the internet and protect the freedom of expression for all...That is not a limitation, but a prerequisite for freedom of expression.” 

Indeed, the online sphere has, as Maas said, become a “jungle” where the most virulent and violent speech roams free—unchecked, unavoidable, and muzzling the capacity of others to feel safe in making their voices heard. Charles Asher Small, founder of the Yale Initiative for the Interdisciplinary Study of Anti-Semitism, noted in an interview with NPR that while the internet has been a helpful tool in spreading free expression, hate groups have also found their voices magnified online. In fact, Small said, the US has become: 

“the place where hate groups use URLs or create websites based in the United States because they're protected under the First Amendment.”

In other words: the US’s unique position as “defender of free speech” with laissez-faire attitudes towards hate speech has actually made it the safest space in the world for hate groups to lay roots, cultivate, and thrive. Other nations, like Canada and Germany, have employed what may be counterintuitive techniques to ensure that all their people feel safe in expressing themselves. Perhaps, if the US is serious about ensuring the dignity and safety of all its people, it’s time to follow suit.

Editor's note: The ideas expressed in this blog post are not necessarily those of the Haas Institute or UC Berkeley, but belong to the author.