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Article Index

Jennifer M. Allen and George H. Norris

Excerpted from: Jennifer M. Allen and George H. Norris, Is Genocide Different?: Dealing with Hate Speech in a Post-Genocide Society , 7 Journal of International Law & International Relations 146 (Fall, 2011) (200 Footnotes Omitted)

 

Like Rwanda, nations the world over continue to work to strike a balance between citizens' expression and adequately containing speech that calls for violence. But different countries have given these competing concerns different weights in striking their balances, leading to a range of legal regimes governing hate speech. Each nation's unique experiences inform its priorities and the risks it is willing to take in allowing its citizens to speak. And experience with hate speech and genocide understandably exerts major influence on speech laws going forward.

Germany committed a genocide across Europe during the Holocaust of the 1930s and 1940s. Its speech laws reflect active efforts to rein in words and attitudes that Germany's own government once broadcast to the point of saturation. Germany occupies a rare position as a developed state with firsthand knowledge of the power words have to fuel genocide. Its speech laws can be seen, at least in part, as reactions to that power.

In the aftermath of the Holocaust, Israel, and later the European Union, each developed speech laws fueled by those who survived it. Their experiences are distinct from each other in critically important ways. Israel is, in many ways, a nation born of the Holocaust, with a population that included over 400,000 Holocaust survivors by 1951, three years after declaring statehood. Europe includes countries and individuals who orchestrated, complied with, resisted, and were victims of that genocide. But each has emerged with an understanding of the atrocities committed, and their speech laws have been actively informed by their respective experiences with genocide.

Though it has its own prejudices and history of discriminatory actions, the United States has no firsthand experience of genocide within its borders or population. Its attitude toward hate speech is based largely on guessing at how to avoid harm in the future, rather than reacting to known catalysts from the past. The speech laws developed absent genocidal experiences represent an extreme on the spectrum of permitted violent speech, and serve as a touchstone for evaluating the extent to which nations risk violence in the name of protecting free expression.

The summary that follows provides a snapshot of hate speech laws and freedom of expression in these nations and regions with markedly different experiences of genocide. Looking at them carefully, each of these regimes can serve as a lens through which to view and evaluate Rwanda's genocide ideology legislation.


1. Germany

In Germany, the Grundgesetz, or Basic Law, serves as the nation's constitution. Among its guarantees is the freedom freely to express and disseminate ... opinions in speech, writing, and pictures and to inform [one]self without hindrance But under the Basic Law, this freedom can be limited by the provisions of general laws ... and ... the right to personal Personal dignity is particularly important under the Basic Law.Article 1, the Law's first provision, provides that [h]uman dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the

In accordance with its Basic Law, Germany has enacted criminal provisions to punish hate speech. Section 130 of the Strafgesetzbuch (StGB), or Penal Code, criminalizes incit[ing] hatred against segments of the population or call[ing] for violent or arbitrary measures against or, more generally, assault[ing] the human dignity of others by insulting, maliciously maligning, or defaming segments of the The Penal Code also includes provisions which limit hate speech forms and messages of particular salience in Germany. Basic Law sections 84 through 86a allow the government to declare certain political parties illegal, to ban their propaganda, and to prohibit symbols associated with such parties. Sections 86 and 130 mention the National Socialist Party by name. Under German law, denying the Holocaust is also a crime if done publicly or in a meeting approv[ing] of, den[ying] or downplay[ing] an act committed under the rule of National Socialism ... in a manner capable of disturbing the public peace

It is important to note that these statutes do not contain intent and violence requirements. While inciting hatred toward segments of a population is a crime, so too is simply assaulting human dignity or denying the Holocaust. These latter crimes do not require a finding that the speech has created harm or led to violence. Nor do they require any evidence that the speech is likely to do so. Merely speaking is enough--evincing a focus on means rather than ends.

Germany's high court, the Bundesverfassungsgericht, or Federal Constitutional Court, has upheld these crimes based upon the primacy Germany affords personal dignity. In 1994 the court considered the case of a conference at which David Irving, a well-known Holocaust-denier, was to speak. The conference organizers were ordered to take steps to ensure that the conference not include content denying Jewish persecution during the Third Reich, including providing warnings about the possibility of this content and immediately stepping in to end such discussion if it occurred. In assessing whether the orders were appropriate, the court looked to the distinction between opinions, which are generally protected, and facts, the protection of which depends on their truth. If a fact is untrue, said the court, it is protected only to the extent opinion is. Because the court found that Holocaust was a proven fact, it upheld the orders under the general principle that the protection of the personality will, as a rule, prevail over freedom of opinion in relation to statements of opinion which are to be regarded as insult ... or According to this decision, it is clear that under German Basic Law even the threat of speech which might insult dignity is proscribable, representing a substantial incursion on freedom of expression.


2. Israel

Similar to Germany, Israel governs and organizes itself according to a set of Basic Laws that comprise its constitution. Israel's civil rights provisions stem from both these Basic and the Declaration of the Establishment of the State of Israel's assertions that

[t]he state of Israel ... will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice!,] and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture ... and it will be faithful to the principles of the Charter of the United Nations.

Notably, however, neither the Declaration of the Establishment of the State of Israel nor Israel's Basic Laws include a right to freedom of speech or expression. This does not mean that Israel does not value or protect speech. The Israeli Supreme Court has established freedom of expression as a fundamental freedom that enjoys supra-legal Speech may be limited, according to the Court, but in determining when limitations are permissible [t]he guiding principle ought always to be: is it probable that as a consequence of the publication a danger to the public peace has been disclosed; the bare tendency in that direction in the matter published will not suffice to fulfill that

Israel does, however, limit discriminatory speech. Much like Germany's, Israel's Basic Law on Human Dignity and Liberty opens by declaring its purpose to protect human dignity and The text forbids violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is These provisions, combined with the lack of a written right to free speech, can clearly be read as emphasizing the primacy of dignity over speech. So too can the explicit laws Israel has passed to deal with hate speech.

The Israeli Penal Code defines racism as persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against the public or parts of the population, merely because of their color, racial affiliation[,] or national ethnic The Knesset has named and criminalized activities involving racism, including: public incitement to racist discrimination, violence, or hatred; public racist insults or threats; and leadership or support of activities carried out by racist groups, political parties, and movements. Other discriminatory activities, including hate speech, criminal offences motivated by hatred, and publicly denying the Holocaust are also crimes.

The Israeli Supreme Court has held that discriminatory speech can also constitute the crime of sedition in certain contexts. In Kahane v State of Israel, the Court determined that a Knesset candidate who distributed leaflets calling for the government to bomb an Arab village endangered, to a near certainty, the values of public order by inflaming hostilities and hatred between Jews and Arabs. According to the court, [w]ords are liable to inflame passions and hatred and to lead to violence, and thereby undermine the minimal level of cohesion society The confluence of this decision, Israel's lack of written law guaranteeing freedom of expression, and the country's Basic Laws and Penal Code emphasizing dignity and prohibiting hate speech demonstrates Israel's devotion to social order and decorum over individual opinion.


3. The European Union

The EU has undertaken to develop shared values and legal regulation for speech among its member states. Under the EU's Charter of Fundamental Rights, [e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority EU member nations, however, have previously enacted laws limiting certain forms of hate speech, and, notwithstanding the language in its Charter of Fundamental Rights, the EU has adopted legislation which requires its members to criminalize publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic The EU addresses any tension between these provisions by asserting that [r]acism and xenophobia are direct violations of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of

Article 10 of the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the European Convention on Human Rights) guarantees the right to freedom of expression ... includ[ing the] freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of The Convention allows certain limitations on expression, however, among them restrictions designed to preserve public safety, prevent disorder or crime, or protect others' reputations or rights. In addition, under the Convention, no person, group, or State may engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for

The European Court of Human Rights (ECHR), which hears cases relating to claims that the Convention has been violated, has made a number of determinations about the extent to which member countries can limit expression. Although the ECHR has no set definition of hate speech, it has considered cases dealing with traditional hate speech categories ranging from racist speech to speech critical of religious and political groups to speech dealing with Holocaust complicity and denial. Its case law has established some basic principles and guidelines for the extent to which freedom of speech is protected in such potentially offensive cases.

 

According to the ECHR, political criticism generally deserves protection for its role in maintaining democracy, and the ECHR takes into account context and the actual likelihood of a threat or violence when judging a speech restriction. But its analysis also parallels Germany's in distinguishing between facts and opinion. In Garaudy v France, the ECHR turned down a Holocaust-denier's appeal claiming that French law violated his Article 10 right to expression. It noted that

[t]here can be no doubt that denying the reality of clearly established historical facts, such as the Holocaust, as the applicant does ... does not constitute historical research akin to a quest for the truth. The aim and the result of that approach are completely different, the real purpose being to rehabilitate the National-Socialist regime and, as a consequence, accuse the victims themselves of falsifying history. Denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them.

Both the EU and the ECHR work from foundation documents asserting freedom of expression and speech. At the same time, however, both bodies are willing to curtail these freedoms when they cross a line into hatred or presenting topics in ways that might lead to hatred. As a group of states, then, Europe has embraced an approach to speech that privileges dignity and an agreed truth over debate when violence or offense may result.


4. The United States

In the United States, all speech regulations must be evaluated with reference to the touchstone of the First Amendment to the Constitution of the United States.On its face, the amendment's language is absolute: Congress shall make no law ... abridging the freedom of speech However, the United States Supreme Court has asserted that the right of free speech is not absolute at all times and under all circumstances. There are certain welldefined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional Among these, according to the Court, are insulting or fighting words--those which by their very utterance inflict injury or tend to incite an immediate breach of the

The Supreme Court has further stated that [r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that This declaration, on its face, seems to imply that the Court recognizes a carve-out within the absolutist language of the Constitution for personal dignity, a sort of unspoken protection in keeping with the principles of explicitly declared restrictions in German, Israeli, and European law. However, the Court's decisions have never prioritized or enforced such a protection, instead providing strong safeguards even for speakers who resort to discriminatory and incendiary messages.

In Brandenburg v Ohio, the defendant, a Ku Klux Klan member, spoke at a rally of Klansmeh, some of whom were armed, and stated that if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] The defendant was convicted under a state statute that, inter alia, criminalized advocating or teaching the duty, necessity, or propriety of violence as a means of accomplishing ... political But the Supreme Court reversed his conviction, holding that the First Amendment requires a distinction between advocating a point of view and inciting immediate violent action. The Court held 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 or producing imminent lawless action and is likely to incite or produce such action.

While Brandenburg addresses speech advocating unlawful conduct generally-- whether based on discriminatory viewpoints or not--the Supreme Court has also addressed regulations on speech specifically motivated by an intent to attack or disparage a person based on his/her race, gender, religion, etc.--hate speech. In RAV v City of Saint the Court determined that a statute aimed at preventing discriminatory speech was content-based viewpoint discrimination. The City of Saint Paul, Minnesota charged a juvenile who burned a cross on a neighbor's yard under a city ordinance criminalizing plac[ing] on public or private property a symbol ... which one knows or has reasonable grounds to know arouses anger, alarm[,] or resentment in others on the basis of race, color, creed, religion[,] or However, the Supreme Court held that even if the statute were construed to apply only to proscribable fighting words, and even if it's purpose was to ensure the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish, its language still violated the First Amendment. The municipal ordinance's language criminalized placing symbols that arouse anger based on race, color, creed, religion, or gender, while symbols that arouse anger based on other characteristics (e.g., sexual orientation or political affiliation) were not covered. The Court held that this content limitation showed special hostility towards the particular biases ... singled out--precisely what the First Amendment

Taken together, the First Amendment, Brandenburg, and RAV essentially eliminate hate speech regulation in the United States. States may punish speakers who intend to and are likely to incite imminent violence, but cannot punish those who merely advocate discriminatory viewpoints. In addition, states may not punish speech differently based on the reason it intimidates or incites violence; singling out certain viewpoints as particularly volatile or worthy of punishment is impermissible. Under this regime, the law does not recognize or address discriminatory speech harming a country's social fabric absent any direct call to violence. United States law focuses on the ends rather than the means--violence rather than the reason for it --and thus protects a broad range of discriminatory speech.

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