Hate Speech 3

This episode explores several hate speech cases in the US and Europe, highlighting the differences in how these cases are handled.
The cases, which are treated as hypotheticals, include burning a cross with intent to intimidate, offensive social media posts, Westboro Baptist Church protests, distribution of homophobic leaflets in Sweden, and Holocaust denial in Germany. The courts in each country weigh the right to free speech against the protection of individuals and public order and the decisions vary based on the specific facts and the legal framework of each country.
The conversation explores the topic of hate speech and its regulation in the United States and Europe. We look more closely at the protection of students on college campuses and the potential shift in the US position on hate speech.
Key Takeaways
• The courts in the US and Europe balance the right to free speech with the protection of individuals and public order.
• Context and intent play a significant role in determining whether speech is protected or restricted.
• The US tends to have a higher threshold for restricting speech compared to some European countries.
• Germany has specific laws prohibiting Holocaust denial and hate speech related to Nazi ideology. The US Supreme Court is unlikely to restrict speech, especially in private communications.
• There is a debate about the existing level of protection given to hate speech in the US.

Taryn Ward.  Hi, I'm Taryn Ward,

Steven Jones  And I'm Steven Jones,

TW.  and this is Breaking the Feed, Social Media: Beyond the Headlines.

SJ.  We're taking a closer look at the core issues around social media, including the freedom of expression, or free speech, as it's sometimes known to better understand the role social media plays in our everyday lives and society.

TW.   Last episode, we looked at the congressional hearing on antisemitism at Harvard UPenn and MIT. This episode will talk through seven cases in several hypothetical variations to better demonstrate similarities and differences between how the United States Supreme Court and the European Court of Human Rights addressed hate speech.

SJ.  Let's talk through a few hypotheticals, and if you're wondering, this is part of the reason this episode, unlike most of our other episodes, is marked as having adult content. So, if you have a young person in the room, or you would like to avoid offensive speech yourself, you might want to consider hitting pause and continuing another time, or you can skip ahead and know that the answer for virtually all of these hypotheticals is that it depends on the context.

TW.  Back to context. So, all of these hypotheticals are based on real facts or real cases, and we'll provide the case names and details in the transcript on our website. Let's dive in. So, the first case I have for you is from the United States, and just a little bit of background; so this involves a state statute that made it a crime to burn a cross with the intent to intimidate. Again, it's important that you know, all those elements have to be present for it to be a crime, right, you have to be burning across with the intent to intimidate. So, our fact pattern is as follows; There's a KKK rally, a Ku Klux Klan rally, and the defendant burned across and was then convicted of violating the relevant statute. So, my question for you, Steve, is whether you think this person's right to free speech was violated?

SJ.  Oh, this is tough, and given what you've said over the last couple of episodes on this issue, I'd have to guess that in the US, probably not, although in my view, they should have prosecuted him and put them away for a while. But that doesn't mean that they didn't violate his right to free speech. Go on tell me the answer.

TW.   So, this one is really interesting. So, the outcome is slightly complicated because of how the vote split, and we're going to hear that a lot in these cases. But essentially, the outcome was that the restriction was permissible only if it required proof that the act was done with the intent to intimidate. So, so, basically, the court found that the intent to intimidate was what saved the statute. But you had to show that; so that it becomes again, a question of context, can you show that this person, did this act (burn this cross) with the intent to intimidate?

SJ.  That's interesting, isn't it because I would have thought that anybody burning across at a KKK rally was doing it to intimidate. That was sort of the historical point that was being made, was it not? I mean, just turning up in the white robe in the white hood should probably be enough to be accused of being intimidating.

TW.   Well, so here's a related fact pattern to consider. So, in this case, defendants burn a cross on an African American neighbor's yard after a dispute, and they were also convicted under the relevant statute. [Steven's incredulous laughter in the background].

TW. So, it's not funny. So, just to be clear, we're not laughing that this happened to someone. We're laughing because really the absurdity of all of this, and the difficulty in figuring out how to look at these fact patterns, and to apply the law in a way that is even unfair, but also considers the context and it's really hard because these fact patterns are all weird.

SJ.  Yeah, I mean, I'm laughing because it's like, obviously, this should what we've said so far, in this episode, in the previous one, this, this should be permissible to stop this person doing this, but I'm horribly afraid, but in fact, was not justified to stop them doing this. So, so, I don't know, this is why I'm laughing because it just defies common sense sometimes.

TW.   Yes, and to be clear, you know, we are talking about the US now. So, there are other laws that were violated by you know, going on to somebody else's property and burning you cross and in a lot of cases, you can be shot for doing something like that. But the question was, whether, you know, under this statute, they could be prosecuted and you know, I think it's a really interesting opinion if you're at all inclined to read one. This is one that's, that's worth reading.

TW.   How might this be handled in the EU. Steve I think, you know, what you said is interesting because you came up through the UK system, and now live in Canada, which is, you know, sort of similar in between, and we can only speculate, of course, because we haven't seen this case come up in front of the EU court. But you would see the court balance out the freedom of expression and the protection of other rights in public order. And I think probably this would come down to a matter of judgement for each member state to make for themselves. But if they did write this sort of regulation, and this was the rule, I don't know that the court the EU court would would strike it down or would be that upset or worried about it, I think it would be a lot easier. In other words, to have a statute like this pass in and be okay. In the EU than in the US. What do you say?

SJ. No, yeah, I mean, that's my feeling. There's all sorts of things that the German government won't let its citizens do related to, you know, Nazism and Neo Nazism. I think, just this week, they passed a law to prevent them, the Neo Nazis getting public money, which probably wouldn't fly in the US. And I would be surprised if the if that goes to the European Court that that would be that would be overturned, because there's some history there. And I think you're Europe is sort of very cognizant of the, of the impact of history on its internal stability, and the US, perhaps not so much. And, you know, it is  really interesting, but I think in Europe, and in the UK, this would be that this would be considered hate speech and not permissible as freedom of expression.

TW.   Yeah, I think I think that's right. Second case, this one is more recent. So, this is actually a 2015 social media case. Here's the fact pattern. And again, this is, you know, not not for children. Defendant and ex wife had just had a contentious divorce. Right? Ugly, very ugly, not pleasant. Defendant starts posting some really concerning things on social media. And I think it's fair to call them concerning his graphic posts on Facebook to aim at coworkers law enforcement, but really, his ex-wife was sort of at the centre of this defendant was convicted and sentenced but appealed to the Supreme Court. So, Steve, what do you think? Was it, was this a violation of the defendant's right to free speech? You know, he was saying offensive things he was saying some really nasty things about his ex-wife on social media, do you think it's right that you can be prosecuted for what you say on social media?

SJ.  I think that you should absolutely be prosecuted for some of the things that you say, on social media, I have serious doubts that it was permissible in this case, because saying offensive things and even posting offensive images isn't necessarily a crime unless it's been, you know, specifically called out right. So, I mean, revenge porn, for example, has become, you know, sub subject to legislation. But prior to that, it wasn't, there wasn't something that could be stopped very, very easily, if at all, so, you know, and if he wasn't making specific threats, you know, verifiably trying to harm these people under the US law as I understood it from the explanations, I'd be surprised that this was okay.

TW.  Well, let's look at what the defendant actually posted. And one more warning, this is this is not for for children's ears. These are quotes. It's not me saying this, this is what the defendant actually posted. There's one way to love you, but 1000 ways to kill you, and I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch. That's one. The second one worth considering is revenge is a dish that is best served cold with a delicious side of psychological torture. The third, after she got a protective order, was fold up your protective order and put it in your pocket. Is it thick enough to stop a bullet? And then the next day, there was a posting, he was ready to make a name for himself, quote, with the most heinous Elementary School shooting ever imagined, and quote, and then, quote, hell hath no fury like a crazy man in a kindergarten class. The only question is, which one? Does that change your mind?

SJ.  I mean, I think probably he committed some crimes there. But I'm still not sure that his free speech is right to free speech was infringed, given the way that the Constitution describes it in the US. I mean, honestly, I don't know. Obviously, I think that that should have been, you know, stopped and he has all sorts of serious issues which probably need to be investigated, and possibly he needs to be either treated or put into that in some other kind of institution. But tell me, because I have no idea.

TW.   It's always it's always, you know, you read through the fact description in these cases, and you can sometimes sort of guess which direction it's going just by the way they frame things. But then sometimes you are surprised by the direction it goes in. So, I think I'm, I didn't say these, I didn't repeat these things just to shock people. But I do think it's important that, that we all understand what the courts are grappling with, and that they have to make these decisions. And, you know, they are saying, this thing is really, that we have to protect speech, even that offends us. And I think this is very offensive to anyone to read this. And it's, you know, I, if somebody wrote this about me, I would certainly perceive it as a threat. In this case, the reasoning is, is again, complex, because it came down to the state of mind required for a conviction. But in this case, the conviction was not upheld. So, again, intent mattered. And we're going to see this a lot. I know, this isn't a popular thing to say anymore, anything to do with intent. But at least in this context, no pun intended, it is the legal standard. It's its intent matters a whole lot. And and you see these these inquiries happening? How would this play out in the EU? I think, again, you know, we already probably know, it's going to be a balancing of protecting free expression on one hand, and protecting individuals from intimidation and harassment on the other. And again, it's going to come down to a very close look at the details. But I think this case probably comes out differently. What do you think?

SJ.  I would, I would hope so. Certainly. I mean, I would hope that this would not be permissible, and that stopping it would be entirely within the right, the right of the of the police and the Crown Prosecution Service in the UK, and whatever jurisdiction they would happen in. Yeah, that that, obviously, it's abhorent behaviour. And either he's an absolutely dreadful human being or he's quite ill. And which of those it is needs to be sorted out? Fortunately, and I'll touch wood. When I when I say this, we don't really have school shootings in the EU, or in Canada. But for somebody to make that that threat. I mean, it's better that people make threats from social media so they can be stopped, I guess. But that's very disturbing that you can say those things and, you know, continue saying those things on social media or on any form.

TW.   Yep, yeah, I agree. Now, we can't we can't talk about any of this without looking at Westboro Baptist Church. This is one that is less I be accused of being stuck on this. I am stuck on this. This is a horrible, horrible thing horrible in a different way to what we're just talking about, but actually not not so different. So, if you're not familiar with the Westboro Baptist Church, this is widely considered to be a hate group, not just in the US, but in other countries too. And they're best known for their public protests with slogans like, “God Hates Fags” and “Thank God for Dead Soldiers”. It has been described as engaging in hate speech against everyone from atheists to religious people, including other Christian denominations, especially Catholics, and has been widely condemned accordingly. Again, not just in the US. So, this specific fact-pattern we're looking at today was a case where Westboro members showed up at a funeral for a US Marine he died during the Iraq War. And they showed up in stood near the funerals to so about 1000 feet. I don't know how many metres that is not really that far away. Not far. Not far, but they were on public land. And they displayed placards in their customer, including, again, thank God for dead soldiers, and God Hates Fags and you're going to hell. The Marines father filed the lawsuit seeking damages under an intentional emotional distress claim, and a few other related claims. And in a statement released after the charges were filed, Westboro members denounced the Marines parents for raising him Catholic so they really doubled down on this there is no apology there is no sort of oh, maybe we made a mistake. It was well they had this coming. Initially, a jury awarded the Marines family something like $10 million. Right. So, you know, this case makes it way up the chain and finally to the Supreme Court. So, what do you think, Steve? Were the statements made by Westboro protected speech?

TW.   Dear God, I hope not. I mean, seriously, like, you know, you the Westboro Baptist Church for those people who don't know forms the core, the core the idea of the church that in the movie The Kingsman, the entire congregation executes itself with the help of one of Kingsman. And you're not supposed to care because they're that vile that you're you just don't care that they all kill one another. It is a truly objectionable group. And this is an truly objectionable thing to do. I mean, what is wrong with people that they would do this? So, God, I hope, but I have this horrible sense that it was in fact protected speech…

TW.   Yeah, I have I have some bad news for you. [Steven laughs incredulously].  The Supreme Court issued in eight one decision in favour of Westboro. So, again, context mattered. Roberts noted that the memorial service was not disturbed directly, as the protest finished before the memorial service had actually started, and also noted that Westboro had notified authorities of their intent to do this, and complied with police instructions. In these things seem to matter in in the opinion, a few interesting facts about Westboro Fred Phelps who founded the organisation handles their lawsuits through their family law firm. So, 11 of his children are lawyers, and they handle all of these all of these claims. And that sort of makes sense, because I don't know anyone who would who would really want to take this on directly, although I do know people who work for groups who sometimes agree with them, or support them, not in what they do, but from a free speech standpoint. And members of this group have been banned from entering Canada in the UK. But Westboro is still apparently in operation. How might this happen in the EU? Steve, do you want to take a crack at this?

SJ.  I think if they tried to do that, in the UK, they'd probably need protection from the public from the police for a start. I mean, that this would not, this would not go well. protesting a dead marine would not be would not be an approach that would again get garner any kind of sympathy from the public. I just can't believe that you would get away with this. I mean, it's possible you could, but I would hope that you, you would not, this would not be okay.

TW.   The point he raised there is really interesting and important. And it's going to come up at our next fact pattern, because it is surprising, given that this is was a Marine, that that there was no counter protest or in in that happened later. To be fair, but you're absolutely right. Part of this is about stopping it before it starts, which is something the US law really disfavors.  Not that you can never do it. But there is a real hesitation about stopping speech before it starts. Because you want to give people at least a chance or an opportunity to hash these things out and to speak.

SJ.  And if there was going to be a conversation, I you know, I genuinely believe that the best way to solve conflicts and difficulties is to have a conversation and as far as possible speech should be, should be allowed. But if you're going to just say offensive things at a at a at the funeral of, for example, a Royal Marine, then there will be other Royal Marines there. And they will take a dim, dim view of you doing this and things could get a little unpleasant, because they have a certain amount of feeling for their fallen comrades. And I'm damn sure the same is true of US Marines, in fact, any branch of the US service, so it's just a terrible thing to be able to do. Because there's I don't see the conversation there. I don't see how this speech is in any way moving forward any agenda, other than just being completely objectionable?

TW.   No, I agree with that. I think so going back to what I said earlier, I think probably when we think about how this would be handled in the EU, I think it's unlikely to come up to begin with, because I don't see, I don't see anyone giving a permit for this to happen in the first place. So, I don't see the UK saying, hey, yeah, great. Go ahead. Here's your permit, go stand in this park right next to a memorial service that's about to start and go ahead and say these things. But let's say that it does, let's say somehow they get this permit and it goes ahead. Although an intentional infliction of emotional distress claim may not be permitted. I still think there are ways of, of punishing this kind of behaviour.

SJ.  I would sincerely and deeply hope so. Yes. But it is, of course, a very fine line because the legitimate protests, which might be annoying to people, you know, for example, let's stop oil annoyed a great many people, but legislation to ban those protests, you know, annoyed, equal, if not greater number of people quite justifiably, in my view, you know, because that's a legitimate protest trying to make a point. I think that's the context once again, definitely matters. But let's hope it never comes up in the UK would be a bad day. Yeah.

TW.  Yeah well, I think the difference in between the two protests you just described there is whether it's targeted at an individual. And I think in this case, it's hard to argue that it wasn't they didn't hold, you know, to my knowledge, they didn't hold signs or posters with his name on it. But it was, it was directed at dead soldiers. And it's a pretty specific thing, given what was happening right next door. And that feels, you know, that feels like a personal attack, rather than I'm trying to say something about the world or something about my viewpoint. But you're absolutely right, it is hard and finding that balance is you know, every, every court every country has to has to sort of grapple with that. 

TW.  So, one more US fact pattern for us, and then we'll turn to some from the EU a bit of background, 

SJ.  Okay.

TW.  Yeah, I know, these neo–Nazi Group announced their intent to hold the demonstration in a large suburb. So, this suburb in particular, has a substantial Jewish population, it still does. Now, actually, at the time, it included many Holocaust survivors. And this demonstration that they asked permission to do would consist of 30 to 50 people marching single file in front of the Town Hall. Demonstrators involved would wear uniforms, similar to those traditionally worn by Nazis, including the swastika armband, there were a number of local Jewish groups who objected to this, obviously, and they planned a counter demonstration, and expected more than 12,000 people. So, this is sort of, to your point about, you know, somebody saying something offensive, how are people going to react to this was sort of the push back. So, you have 30 to 50 people who want to march around as Nazis, you have another group of, you know, more than 12,000, who want to come out and say, No, we don't accept this. The village in this case sought an injunction because they didn't want they just said, “No, thank you. We don't we don't want any of this happening. Please, can we prevent this group from marching or displaying symbols that could incite violence or cause emotional distress?”, and they framed this really is a public safety concern. And they, you know, they looked at the numbers and looked at how all this was likely to play out. And they said, you know, this is this is not great. So, my question for you, in this case, Steve, is what preventing the demonstration violate the neo-Nazi groups free speech rights?

SJ..  Oh, God, unfortunately, I think it probably does, and I'm horrified to say it,

TW.  We actually don't know, because the procedural background in this case is complicated as it often is, but in this case, the group agreed to change the time and location of the demonstration before the Supreme Court reached a final decision, which I think either a number of reasons this might have happened. But I think maybe some of it was concerned that it wasn't going to go their way. And I think that sort of opens the door to thinking about, you know, this, this public safety question, and at what point towns and cities can step in and say, you know, this is this is really too much for us to handle. And that may that may move things one direction or another. How about in the EU? Steve, how would you think this might shake out?

SJ. Well, I mean, in Germany, it would be a non-starter, right, that that whole idea of marching with Nazi paraphernalia would be forbidden from the from the get go. And, and rightly so now, you know, there are neo-Nazi organisations across all of Europe, and they do protest, sadly, because some people don't learn from history, they get addicted to the bad parts of it. So, yeah, yeah, I think it would depend entirely on where in the EU. It happened. Germany, definitely not in the UK. Maybe it would be okay. France, maybe Italy. Essentially, they're part of the ruling coalition, though, aren't they? So? Probably okay.

TW.   Yeah, s o I think the I think the important thing is the EU is really different to the US. I mean, it's similar in some ways, too. But the EU is different because each member state can can largely come up with their own rules. And it only makes it to the High Court if there's if there's a question about whether these rules conflict with, you know, the core, the core values, and so I think you're right, I think Germany sort of leads the way in one clear direction on these issues. And as long as their way of handling it is okay, it's probably fine for the other jurisdictions to do the same thing, even though Germany has, you know, is uniquely situated. Before we move on to look at some EU cases I just want to say A this is not the court saying they support any of this speech. The court is not saying yes, it's great to threaten ex-wives or to talk about shooting up schools, or to say horrible things in a memorial for a fallen soldier or, or that Nazi protests or neo-Nazi protests or our positive thing. It's them trying to figure out trying to balance out and to find the line between, you know, protecting free speech on the one hand, and other factors and the other. So, although when we talk about the EU court, we're always talking about them doing this balancing. The US Supreme Court doesn't necessarily talk about things in the same way. But they're doing some of the same things, and this goes back to what we said in an earlier episode about how the approaches are different, but they really are similar in some important ways. 

SJ.  Yeah, yeah. No, I think the best fit is really important. and of course, they don't support these viewpoints. It would be, you know, horrifying to think that you had supreme justices, some Supreme Court Justices who did, and part of the difficulty with free speech is, you know, defending your right to say it, even if I think it is absolutely terrible. I think there are important exceptions and threatening people, it probably should be a very important exception to that. And I guess it just depends where, where that line is drawn. Right. And that was what those cases clearly demonstrated. And it's not clear in that last example, whether that protest was cancelled, really, because of the Neo-Nazis or to protect the Neo-Nazis from the 12,000 counter protesters who are turning up so that's a bit ironic, isn't it? All right, let's, let's see how these things go in the EU.

TW.   I actually have a UK based case to start us out. So, in this case, applicant was a member of the British National Party. And he displayed a large poster in the window of his first four flat, depicting the Twin Towers in flames. So, you have the Twin Towers in flames in the background, in the words, Islam out of Britain, protect the British people, and then a symbol of a crescent and star in a prohibition sign. So, the police showed up, and they removed the poster after a member of the public complained, and the applicant was invited to an interview. They're unfailingly polite in this country, he was invited to come down and have a chat with the police, and when the applicant refused to attend, he was charged with an aggravated offence, which is displaying a message with hostility towards a racial or religious group. This case, eventually, because applicant appealed. So, the European Court of Human Rights for this case. So, Steve, was the applicants right to free speech violated.

SJ.  I mean, who didn't he had found there? I mean, you've got a fence if you know, displaying the Twin Towers in flames, obviously offensive to everybody in the United States, if not every right-thinking person in the world. And then and then the attacks on Islam, but he didn't actually threaten anyone, did he? I mean, out of Britain, is, you know, obviously objectionable? Oh, I'm not sure. I think I think possibly they were infringed on it or even in Europe.

TW.   Okay. That's interesting. So, let's change the words. So, you have twin towers and flames in the background. You have, you know, the crescent and star with an X through it. But instead of Islam out of Britain, protect the British people. Let's say it's, it's more direct. It's more something like Muslims or murderers or, or something really targeted, more targeted accusation. Does that change your analysis at all?

SJ.  It's a marginal call right, because he is saying hateful things about a racial group. So, that is definitely hate speech. Yeah, I think the more direct the more obvious it is, perhaps the more the more likely it is to be to rise to the level of hate speech, rather than just freedom of expression. Because, again, the context becomes clear. He's not just objecting to the influence of Islam. He's blaming Muslims for terrorist acts, basically saying that Muslims are terrorists and they need to be disposed of. That starts to get a little bit nastier.

TW.   Yeah. Okay, so let's say we keep the poster as it was, but this man happens to be in a dispute with his neighbour. They just hate each other like, long, ongoing thing and his neighbour happens to be Muslim, and he puts this not in a window facing the street but a window that faces the neighbour directly. So, you know, every day he goes to his coffee is his kitchen to have a cup of coffee. And the first thing he sees is this horrible poster. Is that enough? Do you think?

SJ.  Oh, well, I mean, you know, the honest answer is, I don't know. I would hope so, because, you know, you're clear, you're not now you're actually being hateful towards a specific individual, and making their life miserable, and I don't think that you should be allowed to do that. And I would hope, British law and European law would prevent you from doing that. But you're sneaky, and you pick difficult cases. So, I'm not sure.

TW.   No, it's this really is about your opinion, because you're right, it is a judgement call, you know, the courts are doing the same thing we're doing right now. They're looking at all of the facts, and then they're looking to apply the law. But the law isn't written in a way that gives you a cut and dry answer for every single scenario that comes before you. You have to look at everything, you have to consider all of of the possible scenarios, all of the all of the ways this could vary in the future, and then make a decision. So, it is it is really tricky. So, in this case, with the facts, as I originally presented them, the European Court of Human Rights said the right to free expression was not violated. So, they said that this was an attack. Yeah, they said this is an attack against a religious group, and in this case, implying that the group as a whole was guilty of a grave act of terrorism was incompatible with the values proclaimed and guaranteed by the convention. So, tolerance, social peace, non-discrimination, this, this went too far, and the UK police were well within their rights to remove it. How might this be handled in the US? I think, you know, if you've been listening at all to the previous hypotheticals, I think it's very likely the shakes out differently in the US, and you know, police removing speech like this from private property. I'm struggling. I, you know, I never want to say for sure, because I haven't seen this case. To my knowledge. There's no case law that says, But I'm struggling, in my mind, think of a scenario where the United States Supreme Court says, oh, yeah, that's fine.

SJ.  I genuinely don't believe they would. I'm so happy. The European Court was like, Yeah, this is totally unacceptable. This isn't legitimate political speech. This isn't a free gross expression issue. This is, you know, goes directly against our core values. And I think that that's important.

TW.  Yes, I  think I think that's, that's a really important point, and so all of these courts are, even if they're not saying it out loud, they are making some, they're making some judgments about the core values of the country they're in or the region they're in and determining whether this speech fits in in some way or other with those values. 

TW.  Okay, I have another case for you. This time we're going to Sweden, Supreme Court and Sweden found the conviction of applicants for the distribution of leaflets disseminated homophobic propaganda was not a violation of their right to free expression. So, backing up for Swedish citizens went to a secondary school and distributed leaflets containing statements against homosexuality. So, these leaflets contain the following statements I'm gonna give them to you straight up this time. These are quotes from the leaflets, not what I'm saying. “In the course of a few decades, society has swung from rejection of homosexuality and other sexual deviances to embracing this deviant sexual proclivity. Your anti Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society, and will willingly try to put it forward as something normal and good. Tell them that HIV and AIDS appeared early with the homosexuals, and that their promiscuous lifestyle was one of the main reasons for this modern day plague gaining a foothold. Tell them that homosexuality lobby organisations are also trying to play down paedophilia, and ask if this sexual deviation should be legalised.” End quote. 

TW.  Obviously, this is translated. So, the original Swedish said something else. The court translated it to English as I've just read to you. applicants were charged with agitation against a national or ethnic group, and were sentenced to fines and imprisonment. The Swedish Supreme Court changed the charges to just fines in suspended sentences, and then they appealed to the European Court. So, Steve, were the Swedish citizens rights violated?

SJ..  I hope not. I mean, that that was that was surely demonising homosexuals. But I mean, the problem is there were some little weaselly words, at least in the English version, because they say things like, you know, one of the primary one of the main causes for this modern day plague so they're not as explicitly blaming homosexuals as the previous guy was blaming all Muslims for the attack of the Twin Towers. 

SJ.  So, you know, again, that weaselly wordy stuff perhaps gives them some legitimate foothold with the European Court. And, of course, the HIV/AIDS epidemic, did largely start in the homosexual community, although you know, that they were not the reason that it spread into the heterosexual community, or through the hetrosexual community. So, it's much more complicated than that. But, you know, you they could make the argument that they're giving, talking points to students to ask complicated questions of teachers who are pushing this as being a legitimate, you know, choice. I think it's hateful, hateful towards people who are homosexuals, obviously, and and I hope that the European Court didn't overturn this verdict, but I don't know.

TW.  Yeah, I think your point there is really important. So, rather than, you know, a poster that sort of, you know, doesn't provide any real information and doesn't attempt to not that this is real information. But you can see that there is an attempt here to formulate an argument. And probably, these four people believed this. It's, it's tough, because you know, you can believe whatever you want. But when you start talking about it, and saying things that are hurtful to other people, that becomes something different. I think it's also important to remember that this was happening at a at a school. So, I don't know if that makes it better or worse, I guess depends on how you think about it. On the one hand, you know, you have impressionable young people who are receiving this information. On the other hand, you can say, well, maybe they really were trying to contribute to the conversation or, or to start a conversation. And from a US perspective, we might say something like, well, actually, this was an opportunity. And I could see this happening at, you know, one of the liberal state schools, where we used to live and parents saying, this is a great opportunity to talk about how wrong this is, and how untrue it is and to arm our children with better information. And maybe we wouldn't have had these conversations otherwise, but we're having them no. Again, I'm aware that that's very American perspective to to this whole thing. But I am sorry to tell you, Steve, that the year the European Court of Human Rights decision in this case was unanimous and found that although this conviction did infringe on the applicants’ rights, it was justified and necessary, because in a democratic society, you have to, you have to restrict some of these things. And there is a legitimate aim here. And the legitimate aim was to protect the reputation and rights of others. So, the, they found that in this case, the conviction was proportionate to the aim pursued. Now, it's not clear to me if this Supreme Court in Sweden had not cut out the sentence, whether the result would have been the same. It may have been that the court if, you know, if there was an actual prison sentence involved, the court may have said this isn't proportional. And so I think they were sort of drawing, you know, drawing a line here to say, this is okay. But, you know, let's not push it much further.

SJ.  Yeah, now, and I think that that, that seems like a very reasonable decision. I mean, I quite liked the logic inside that. Because obviously, you know, it is offensive, and not true to blame homosexuals for these things. So, neither the spread of HIV and AIDS, so nor is it deviant or unnatural. And that I think I like that judgement, I'm yay go Europe!

TW.  Okay, so how might the US court handle this same issue? Again, I think based on the previous scenarios we looked at, it's pretty clear, I don't know for sure the court would look at the facts carefully, including how the restriction is worded, and that that's really important. But again, I have a really hard time imagining the court allowing this type of speech to be restricted, even if it were more targeted, even if it were more offensive. So, you know, if we take the wording here, not that it's not offensive enough, just to be clear, that's not what I'm saying. But I'm saying that, you know, if we take it and we even add a layer, it's it's hard to imagine, it's hard to imagine that. Now, sometimes the court will say that there are restrictions that are allowed, if it's disruptive, for example. And, you know, we'll allow schools to put some some restrictions in place, but handing leaflets outside of the school gates, I think is, you know, the US court is going to struggle to find a problem with that.

SJ.  Yeah, all right. I completely agree with that, based on everything we've heard so far. seems very unlikely.

TW.  Okay, and one more case for you. We've talked about Germany quite a bit so let's take a look at a case from Germany. So, this is a German case. And you know, we've said already the rules in Germany about Holocaust denial in particular are really unique so just keep that in mind as we go through this fact pattern. In this case, applicants sent a letter to a well-known historian professor, who had published an article regarding the culpability of the Nazi Party and Hitler. 

TW.  So, this letter that was sent to the professor said that the professor's statements were false and historically unsustainable. So, the letter are further argued that there was no indication in party programmes of the National Socialist German Workers Party that they in Hitler, quote, intended to murder Jews. Okay. So, just to be really clear, this professor had written an article that appeared in the newspaper, and the applicant in this case, had written a private letter to this professor disagreeing with what the professor had had published, the professor, in turn submitted the letter to the police, and the applicant was convicted of disparaging the dignity of the deceased and sentenced to three months imprisonment. So, Steve, should the applicants letter be protected free expression?

SJ.  Oh, this is the tricky one, because as you said, there were very specific rules in Germany about the Holocaust in particular, and the Nazi party. So, I mean, if there is a statute in Germany, that involves disparaging the dignity of the deceased to protect, you know, the Holocaust victims and prevent Holocaust denial, then no, it shouldn't be protected, protected free speech, and I don't think the EU should interfere in that particular rule given history. But I don't think that you would get I don't think that that would apply across the rest of Europe. But I don't think that it would be consistent with most European countries, right? So, it's a bit it's a bit difficult.

TW.   Okay so I'm gonna challenge you a little bit here to think about, at what point would it be too much. So, let's say there's a German law that allows you to prosecute someone for a private text message.

TW.   So, let's say I send you a private text message, not even asserting that I don't believe something but asking a question and saying, you know, this doesn't really make sense to me. What do you think? And let's say that there are German law that allows me to be prosecuted for that. So, if you go to the police and show even that I was poking around this question, that I can be sent to prison?

SJ.  You know, obviously, in that case, you should, that should not be something that you should go to prison for, and I mean, you know, I guess you're getting at the point that this guy sent him a private letter, he wasn't like he published six foot high billboards calling him a liar, because the Holocaust never happened in that he's worked into the industrial slaughter of the Jews, which the manifest they were. So, yes, that would be a big difference. But I mean, private communications, I think, are different people. A conversation between two people about two of the points I made earlier is a bit different than, you know, a hate group or or individual with, you know, has a particular hate for someone making pointless statements like, “Thank God for dead soldiers”. There's no argument to be made there that he's making a point. In this case, I guess, if he had a legitimately held view, and was asking this guy why he was lying about it, there are probably better ways of dealing with it, then go into the police. But what did the European Court say? Or are you going to challenge me some more?

TW.  I mean, I challenge you every day. That's part of what so far about my job? No, and it really wasn't, it's really not to catch you out. It's, it's really hard, I think, to know where to draw that line.

TW.   I think especially when you're looking at a really complicated, not just fact pattern but historical background in that was sort of the, you know, the situation with the suburb, in in the US flag pattern to with the neo-Nazi March it, it's sort of you have to look at all of these things and think about the historical context and figure it out. And also think about how to balance that against protecting some of these rights, because once they're gone, they're gone. And actually, one of the things you know, we fought against in a lot of our wars is protecting these rights. And so, they're, they're important. In this case, the court noted that the applicant denied neither the Holocaust as such, nor the existence of gas chambers that seemed to be important to them, but so that he denied an equally significant and established circumstance of the Holocaust, and that this was part of the war propaganda historically. So, the court found that the public interest in the prevention of crime and disorder due to disparaging statements and requirements of protecting the interests of the victims outweigh the applicants freedom to impart these views. So, the interference with his rights was as necessary, and the conviction was allowed to stand.

SJ.  Now, even though it was a private communication, wow!

TW.   Even though it was a private communication. So, you know, how might the US court handle how might the United States Supreme Court handle the same issue? Yeah again, it's very difficult to imagine the Supreme Court restricting this type of speech, especially in a private letter, of course, they would look at all the surrounding circumstances and consider the context. But even if we change a number of these facts, to be more in favour of an intervention, I have a really hard time imagining a fact pattern where the court would agree that this sort of speech can be limited in any circumstance that resembles this one. And I think this is a great opportunity to sort of circle back to what we talked about last time. So, there's a lot of talk right now about antisemitism on US college campuses, and how we grapple with that, and how we provide, you know, the protection that students need and deserve, both in terms of their physical safety and their ability to, to live their lives without being intimidated, or, or, or whatever it is, and also the right to free expression, free speech. And a lot of people feel that the universities have not been protective enough of students. And I don't mean their free speech. I mean, they've not been restrictive enough in in the speech that they're allowing. But what I really want to point out is, you know, there is sort of a spectrum of, of what we allow, and in the US, we do tend to be really permissive in terms of what we allow, especially when it's hate speech, you can go all the way to the other side and look at Germany. But I think for most Americans, in even you reading this, Steve, who, you know, you're sort of in the middle in a lot of ways, it is a really strange sort of thing to think that this private communication is enough to have somebody put in prison.

SJ.  Yeah, I mean, I can't imagine that being a popular decision in in Canada, and I don't, I just I can't imagine them doing it in the US at all. And I think you're right, you know, I mean, obviously, Jewish students or, or any, you know, minority group that's being harassed on campuses do deserve, and should be protected by the campus authorities and the campus police, and so on and so forth. But it is freedom of expression and freedom of speech on college campuses are important. They've been important sites of legitimate civil disobedience and civil protests, which have changed the law in the past. And I sincerely hope that they will be again, they're, they're in school, these kids are in school to learn and do better, and you don't learn by stopping them. But by not having conversations, we're not talking about difficult issues. If the situation in the Middle East was simple, we would have solved it by now. It's not like very smart people haven't tried lots of times. It's complicated, and it's also complicated for them to understand.

TW.   Yes. And I think to your point earlier, there is a difference between having a conversation and trying to have this back and forth, and just one person shouting into the void. So, like Westboro, for example, but you know, if we allow that and remember that that was an eight-one decision, from our Supreme Court. If we allow that and then say on university campuses, students can't protest, that that doesn't match up. And so, what we're talking about then, is potentially a major shift in our position on hate speech, which I'm okay with, I'm actually really on board with a step towards the European approach, because I actually don't think hate speech deserves the same kind of protection that other types of speech do. But if that's what you're arguing, I think you have to be really clear about the fact that that is what you're arguing. And you're saying that you want to take a step closer to the way it's done in Europe. And I think a lot of people haven't yet made that connection in their own minds.

SJ.  Yeah, and I mean, we started, to talking about hate speech on campuses and the vilification of the Harvard president, as well as the other two university presidents for their failure to do it. But no congressman is suggesting that we should be moving towards a European model for hate, managing hate speech in the US that, you know, that was not what they were saying at all. They wanted speech they didn't like, restricted and conversely, of course, speech they do, like should be allowed, regardless and without any hindrance. And that's, that's not the foundation of a thriving democracy. The founding fathers knew that and that's why it's the First Amendment, isn't it? To protect and set up the US for success. Free speech was important.

TW.   No absolutely. Right. And we've been going on for nearly an hour and I think we could probably go on for another hour after this, but I think that's probably a good place to wrap up.

TW.   Next episode, we'll start our look at campaign finance in the United States and discuss how social media has changed or hasn't changed how political campaigns are run and regulated. Spoiler, it has very much changed the way these things are done. In the meantime, we'll post a transcript of this episode with references on our website.

SJ.  Until next time, I'm Steven Jones,

TW.  and I'm Taryn Ward.

SJ.  Thank you for joining us for Breaking the Feed, Social Media: Beyond the Headlines.