Hate Speech, Part 1

This episode of Breaking the Feed explores the topic of hate speech and different approaches to regulating it. We set out the complexity of international treaties and the reasons for the differences in approaches between the United States and Europe.

We start to delve into the fair application of hate speech rules and the policies of universities in handling hate speech. The conclusion highlights the frustration directed at university leadership and teases the next episode, which will focus on a House hearing on the handling of anti-Semitism at specific universities.

Key Takeaways:

• Hate speech is a complex and controversial topic that requires careful consideration.
• Different countries have different approaches to regulating hate speech, with the United States and Europe having contrasting views.
• Context plays a central role in determining whether speech is classified as hate speech and how it should be regulated.
• The fair application of hate speech rules is a separate issue from the rules themselves and requires careful analysis.

TW.  Hi, I'm Taryn Ward,

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

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

TW.  Last episode, we discussed the Western framework for protecting the freedom of expression, and whether in its existing form, it's up to the task of grappling with some of the big issues we're facing in an era of life online and artificial intelligence. We spend quite a lot of time covering some basic concepts and looking at how the system works as a whole, and how various pieces fit together. We tried to keep it interesting where we could, but we felt it was important to set things out before doing some deeper dives and the issues we're currently facing.

TW.  This episode will take the first step towards a deep dive on hate speech. This is probably a good time to flag that some of the episodes in our hate speech series are rated 18+. We have some big and difficult issues to tackle, and it's impossible to talk around some of the very adult themes that come up when we look at hate speech. So, for this limited part of our series, we've rated the episodes accordingly. Hate speech is one of those topics that comes up every few years gains a lot of attention. So, there's a lot of discussion, and then sort of disappears again, we think it's likely to come up quite a bit this year, and, and it's worth a closer look.

TW.  Hate speech is unique in some ways, because there are some different hate speech is unique in some ways, because there are such different approaches even within the West. This isn't a case of the EU doing things one way in China another, the United States and Europe have very different approaches even between them, and unlike many other areas of the law. These differences are neither surface level nor the kinds of differences that tend to result in the same outcomes anyway.

TW.  In the United States, the First Amendment jurisprudence classifies hate speech is protected speech, fully protected speech. So, in other words, unless the speech at issue triggers one of the other exceptions, hate speech enjoys the full protection of the First Amendment.

TW.  The European Convention on Human Rights takes a very different approach and balances hate speech or the hate speech restriction at issue against any other rights that could be at issue. So, hate speech is not considered fully protected in the same way it is in the United States. Why the difference? Well there are a number of potential reasons, but a few that are fairly well known and widely discussed, and then I find plausible centre around the differences between the two legal systems as a whole, including their histories, cultural differences more broadly, and a different emphasis on the fundamental justifications for the freedom to begin with.

TW.  If you believe freedom of expression is exclusively or primarily based on its necessity to discover the truth. For example, you might have a different position hate speech than if you believe it's necessary for the existence of democracy, which may be different still, than if you believe it's about individual self fulfilment or realisation. Now, again, we can debate what these different approaches mean for hate speech, and whether one is more justified than the other. But it's important to remember that each country has one or more traditions and often legal precedents that ground them. So, it's not necessarily a quick or easy change, and not even necessarily desirable one.

TW.  To further complicate things, international treaties don't always agree. So you have the Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, they all treat freedom of expression as non-absolute, especially where it undermines the right to equality and non-discrimination. But these treaties don't all provide for the same approaches to which types of hate speech should or must be restricted, and in some ways, the standards contradict each other. And all before you get to regional treaties, like the American Convention on Human Rights, the European Convention on Human Rights and the African Charter on Human and People's Rights, which don't always align with each other, or the relevant international treaties, not that they are necessarily huge, huge differences. But small differences can can mean different outcomes that can look very strange and feel contradictory.

TW.  Then, of course, you have countries that signed treaties with reservations or assigned some but not others, and then you have to figure out how those countries are going to interpret them and what those obligations mean for them internally, and that's before we even look at differences on the national level. So it really is a complicated web to sort out in some of the should be complicated. So, this is a really important issue, and there's no one way or one right way to grapple with it. But I think it's important to be clear here that the United States is very much an outlier, and it is in large part the source of that complexity. You may think that's a good thing. You may think that's a bad thing, but but it really does stand alone in this area of law in many important ways.

TW.  So, the United States has held the firm line, consistently asserting that this type of speech, hate speech, can only be restricted if it is directed at inciting or producing imminent lawless action, or is likely to incite or produce such action or falls under one or the other clearly identified in very narrow exceptions. I was having a conversation with a friend over coffee the other day, and I really want to emphasise again how narrow these exceptions are because I think sometimes we hear "Oh, there are exceptions, you know, incitement that that can mean a lot of different things", in in Europe, it really can. But in the United States, it's it's a very narrow, narrow thing. One of the things that came out of discussions around the recent House committee hearing on antisemitism on university campuses is a profound discomfort with context in this area of the law. But whether you prefer the European approach, which balances the right to speech or expression against other rights, like the right to equality and non-discrimination, or the traditional US approach, context plays a central role in determining whether speech is classified as hate speech, how must should or can be regulated, and ultimately, whether it's punishable. And I should say that many Americans find the outcome of European cases surprising and difficult and deeply uncomfortable. So it is it is just worth noting that these are different approaches, and we'll get into that much more over the next couple of episodes.

TW.  When we hear really extreme, hateful speech, hate speech, we're very often horrified or even shocked by it, and I think sometimes our human instinctual response is kill it with fire, make it go away, just, you know, get rid of it, and I think that's really understandable because this speech is really troubling, and it hits something inside of us, especially if it's something we can relate to. But sometimes hard cases do make bad law, and so what you end up with is a very specific fact pattern that makes us uncomfortable, resulting in a rule that, when applied more broadly, is really damaging to a fundamental right, like free expression. Because we can't just restrict the speech we don't like and permit the speech we do like that doesn't fit within any of the philosophical justifications for protecting that freedom, and it takes us down as sort of, you know, winding dark path.

TW.  For example, it's been really interesting to see some so called "Free Speech Absolutist" be so vocal about the protests on university campuses, and the alleged failure of universities to appropriately restrict this speech. When pushed many of these advocates say what really bothers them is a perceived double standard. In their eyes, universities allow anti-semitic comments and protests is protected speech. But consider comments on sex is a biological reality or refusal to recognise someone's pronouns, or a KKK rally is unprotected. But this is where the argument can start to go off the rails because it's changing the core question to whether a rule is fairly or equitably applied, rather than addressing the rule itself, and considering whether that rule is correct. To put it another way, whether the rules are being applied fairly as a separate question to whether the rule itself is working?

TW.  Now, we can be concerned about both, of course, and that's often the case, but they do deserve to be analysed separately so that we can figure out where our concern really is, and whether we need to throw out the whole rule or just think about how how it's being applied. So, we consider the rules themselves for a moment in terms of what speech these universities allowed prohibit, they tend to closely track the First Amendment, not necessarily because these universities are held to First Amendment standards, because remember, these are private institutions and not government actors, usually, but because universities have chosen this path. We can talk about why in another episode, but there are a number of good reasons, including providing cover from the kind of fire they find themselves under currently.

TW.  The rules then treat hate speech is protected speech, unless that speech falls under one of the other well-established exceptions. Now you can feel any way you want to feel about this, I certainly have my own feelings about hate speech. But these universities didn't just wake up one day and scribble these policies out, and university presidents certainly didn't do it by themselves. They're drawn on well-established principles and teams of lawyers who who are very much experts in this area of the law in a way that I am not an aside from feelings, you can believe if you want to that this is the wrong approach, and and maybe even think that the Europeans have have it right in this regard. But again, you know, you have to think about what the outcome looks like under European law, which, which we'll get into in our third episode in this series. And whichever way you take whether you take the US approach or the European approach, context is always central to that inquiry. There's no getting away from it.

TW.  Now we can turn back to the question of fair application of the rules. But if the argument is that university presidents should throw out the First Amendment approach to free speech and craft their own versions, we're actually talking about giving them more authority and freedom, not less.  So, if we're concerned about unequal application now, why would we give them the power to deviate from well established principles and entire nation is adhered to for decades.

TW.  It's not really clear when you when you dig into these arguments, what the answer to that question is, and remember that this would be dangerous, even if one thought the current presidents were doing a wonderful job and being perfectly fair, because there will always be a risk that the next person could abuse it. So, one of your pupils suggests that someone they've already accused of being unfair should have more room to be unfair. It's hard to really understand what what they're asking for or it's definitely not an argument I could make with a straight face. So, I've found often in these discussions that the frustration or in some cases, anger directed at these universities and University Leadership isn't really about free speech or antisemitism at all, and about something more.

TW.  So, next time, we'll look specifically and more closely at the House hearing on the handling of antisemitism at Harvard, the University of Pennsylvania and MIT.

TW.  In the meantime, we'll post a transcript of this episode with references on our website.

TW.  Until next time, I'm Taryn Ward.

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