'War on Words' and How Democratic Nations Deal with Hate Speech

The International Press Institute and the Center for International Legal Studies recently held a conference in Vienna, Austria, about hate speech, one of the most controversial subjects confronting the international press freedom movement.

With the title "War on Words: Terrorism, Media and the Law," the conference attracted more than 150 journalists, human rights lawyers and advocates, and counter-terrorism experts from throughout the world.

Richard N. Winfield (above), WPFC's Chairman and one of the most prestigious media lawyers in the US, addressed the conference on this subject. Mr. Winfield dealt with the "kind of sociopathic expression that causes anger, hurt or resentment," and used examples from three countries, Denmark, Hungary and the United States, to illustrate his presentation.

Following are his complete remarks:

Hate Speech Laws:  Ends and Means and Unintended Consequences

By Richard N. Winfield

Let us begin on common ground.  Let us assume that we agree that hate speech is hurtful and evil.  Let us agree that since hate speech offends human dignity, we should combat it.  That is the goal, the end that we seek.

But what about means?  Is it possible to disagree on the means, on how to combat hate speech?  Is it possible to question the conventional wisdom that the only way, the best way, is to punish criminally the speaker who spews hate.

Let us look at the three different responses to hate speech in the three different countries.  That comparison may help us shed some light on the usefulness of the convention of criminal punishment.

First, we will note that Denmark followed the conventional path.  Its law criminally punished the offensive speech.  But that law produced some unintended consequences.

Second, Hungary chose an unconventional path that differed from its neighbors in Europe.  Hungary does not punish offensive speech that does not incite violence.

Third, we will consider some provocative American examples that illustrate the unwillingness of American courts to punish offensive speech.

First, we should be clear that we do not discuss speech that represents a true threat to an unwitting target. Nor will we discuss speech that constitutes advocacy of imminent violence with the likelihood that it would actually produce violence.  No, we will discuss only that kind of sociopathic expression that causes anger, hurt or resentment.  The kind of speech that the Danish cartoonists published.

Denmark
Let’s consider the role that Denmark’s hate speech and blasphemy laws played in the cartoon crisis.  That crisis began when some Muslim groups protested to the newspaper about the cartoons.  At first, the government was not involved.  It was a controversy only between readers and editors.  It was not to remain that way.  The controversy necessarily had to escalate.  It had to become politicized, it had to involve the government.  The reason is simple enough.  The government was required to act, the government had to do something.  Why?  Because Denmark’s hate speech law and blasphemy laws in the criminal code required the government to act.  Once the protestors filed criminal complaints to demand prosecution, the government faced a politically toxic choice:  either to prosecute (and favor the minority Muslim protestors) or not to prosecute (and favor the majority native Danes).
 
The two laws were sufficiently porous and vague to give the Muslim groups some basis to expect that the government would indict.  We know that the riots only began, not when the cartoons were published, but three months later: immediately after the regional prosecutor announced his decision not to prosecute.  The violence followed that decision, not the publication.  

What can we draw from that sequence of events?  The editorial controversy escalated into a politicized governmental crisis because the government could not escape becoming entangled.  The availability of the broadly-worded laws transformed and escalated what had been a rancorous private exchange into a legal, political and governmental crisis.  

The government became needlessly thrust into the controversy by possessing the explicit power to criminalize expression that was offensive. The Muslim groups viewed the decision not to prosecute as an official and hostile act of the Danish government.  

If Denmark lacked the power to prosecute, that is, if the Hate Speech Laws and Blasphemy Laws were not on the books, the Danish government could not been held responsible. But the government became needlessly involved by possessing the explicit power to criminalize offensive expression.

In its efforts to maintain a legal arsenal enabling it to censor racial and religious insults, Denmark paid a very steep price.  The two statutes were laws that produced unintended consequences.

Without the laws, the controversy would likely have remained local, non-governmental and containable.  
The very existence of the laws caused a local controversy to escalate into a global, religious-governmental crisis.  

Hungary
Our fellow panelist, on the next session, Professor Peter Molnar, speaks with far greater authority than any of us on this subject.  As Peter will explain, Hungary chose a path different from its European neighbors.  

It was the Constitutional Court of Hungary that departed from the response at other post-communist countries.  A provision of the criminal code punished a public speaker before a large audience who used language that was offensive or denigrating to a religion or race.  The Constitutional Court declared that law unconstitutional.  However, a different provision punished a public speaker before a large audience who used speech that incited hatred on the basis of race or religion.  In construing that incitement law, the Constitutional Court narrowed its application to only that speech that posed a clear and present danger that threatened individual rights.  The Hungarian Supreme Court and lower courts have further narrowed the clear and present danger test by linking it to violence.  Only if the conditions of inciting violence are met may speech be punished.  

In the name of freedom of expression, Hungary has declined to criminalize anything except hateful speech that incites violence.  That differentiates Hungary from its neighbors.  The Constitutional Court was quite clear:  “historical experience shows that on every occasion when the freedom of expression was restricted, social justice and humankinds’ innate ability to develop was stymied.  . . . Free expression of ideas or beliefs, free manifestation of unpopular or unusual ideas is the fundamental requirement for the existence of a truly vibrant society capable of development.”

That philosophy represents Hungary’s response to hate speech.  

United States
How American courts respond to hate speech in wartime is neatly summarized in an important case decided only two weeks ago.

There is a radical Christian fundamentalist preacher, who, with his family, loudly protest against Catholicism, homosexuality and the legal tolerance for homosexuality in the US.  They regularly demonstrate their radical views at funerals for dead American soldiers.

Outside a Catholic church during one soldier’s funeral they held up signs which said “Thank God for Dead Soldiers,” “Pope in Hell,” “God hates the USA/Thank God for 9/11.”

Because of the signs, the parents of the dead soldier suffered emotional trauma.  They brought suit against the preacher for intentional infliction of emotional distress and invasion of privacy.  The jury awarded civil damages against the preacher for $11 million, including $8 million in punitive damages.

On September 24, the federal court of appeals unanimously reversed the award.  The bereaved parents will receive nothing.  The judges described the signs as distasteful and repugnant.  Yet the judges found that the First Amendment fully protected this speech since it represents expressions of opinion rather than facts, and because it concerned matters of public interest and concern.  For the courts to punish expression of these political and religious opinions because of their content would surely violate a core principle of democracy.

The American response is also summarized in the crisis about 30 years ago in Skokie, Illinois.  Skokie is a village near Chicago with a population of 70,000.  Of that number, about 40,000 were Jewish.  Several thousands of those Jews had survived the Nazi death camps.  You can imagine how they felt when an American Nazi party announced its plans to march through the streets of Skokie.  Fifty to seventy Nazis would flaunt their swastikas and uniforms -- all the hated symbols of the Holocaust.

The village legislature responded by enacting local laws which, first, prohibited expression that would promote and incite hatred on the basis of heritage.  A second law prohibited members of a political party from wearing military style uniforms.  

Acting on these local laws, the local government denied the request of the Nazis for a permit to parade.  The federal appeals court overturned the local laws.  There was adequate police protection for both the Nazi marchers and those local citizens who chose to observe the display.  No true threats were involved.  Violence was not a real issue.  The Court held that the swastikas, arm bands and banners were symbolic speech which the First Amendment protects.  The Court said “Under the First Amendment, there is no such thing as a false idea.  However pernicious an opinion may seem, we depend for its correction not on the consciences of judges and juries but on the competition of other ideas.”

But what about the impact on the sensitivities of the Jewish citizens?  The court candidly recognized that the Nazis’ provocative display was deliberate and would disturb many of the citizens —if they chose to witness the parade.  That was not enough to create a further exception to the First Amendment.  That Amendment exists, the Court said, to invite dispute, to induce a condition of unrest, to create dissatisfaction with conditions as they are, or even to stirring people to anger.  

After the intermediate appeals court nullified the local laws, the U.S. Supreme Court decided not to review the case.  The First Amendment stands in the way of even a good-faith effort by a government body to censor or punish hateful expression of the kind that the Nazis planned.  

America’s history and its jurisprudence generally leave it, not to the courts but to education and dialogue and pressures from civil society to marginalize, stigmatize and ostracize hate speech.  

Finally, the question is not ends, but rather means.  We looked at the means of combating hate speech that Denmark used –criminal punishment– and how Hungary and the U.S. reject those means.  In our conversation, let us explore whether the cure that Denmark used is worse than the disease.