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STRIKING A BALANCE Hate Speech, Freedom of Expression and Non-discrimination E<iitedby San<iraColiver Contributing Editors Kevin BQyleanc;lFrances D'Souza ilRTlCL!=111I,NfERNATlpNALC!=NTREAGAINSTCENSORSHIP HlJ~AN RIGHTSCE:;NTREU,NIVERSITYOFES~EX .- , ~ c. TABLEOFCONTENTS Abbreviations ill Acknowledgements iv Editorial Note v Introduction byFrances D'Souza vii ©This compilation: ARTICLE 19,London and Human Rights Centre, PartI:PreliminaryConsiderations. University ofEssex, 1992 I. KBoyle, "Overview of aDilemma: Censorship versus Racism" 1 2.PGordon, "Racist Violence: The Expression ofHate inEurope" 9 © "Campus Antiracism Rules: Constitutional Narratives inCollision", Richard Delgado, Vol85 NorthwesternUniversityLawReview1991. Part11I:nternationalStandards 3.KJPartsch, "Racial Speech and Human Rights: Article 4of the © "Criminalization of Racial Incitement in Israel", EliezerLederman Convention ontheElimination of AllForms ofRacial Discrimination" 21 andMalaTabory,Stanford JournalofInternationalLaw,Vol24, No. I. 4.IBoerefijn and JOyediran, "Article 20oftheInternational Covenant © "Balanciug the Rights to Freedom of Expression and Equality: A onCivil andPolitical Rights" 29 CivilLiberties Approach toHateSpeechonCampus", NadiueStrossen, 5.JOyediran, "Article 13(5)oftheAmerican Convention onHuman Rights" 33 Regulating Hate Speech onCampus: A Modest Proposal?, DukeLaw 6.DTiirk andL Joinet, "TheRight toFreedom ofOpinion andExpression: Journal,Vol 1990,No. 3. Current Problems ofitsRealization and Measures Necessary forIts Strengthening andPromotion" . . . . 35 7.SJRoth, "CSCE Standards onIncitement toHatred and Discrimination onNational, Racial orReligious Grounds" 55 8.KBoyle, "Religious Intolerauce and theIncitement ofHatred" 61 PartIll:CountryExperiences Australia 9. KEastrnan, "RacialVilification: The Australian Experience" 75 All rights reserved. No part of this publication may be photocopied, 10.KEggerking, "Australia: TheRole of theMedia in 82 recorded orotherwise reproduced, stored inaretrieval system ortrans Perpetuating Racism" mitted in any form orby any electronic or mechanical means without 11.SCh'ang, "Legislating Against Racism: Racial Vilification Laws thepriorpermission of thecopyright owner and publisher. inNew South Wales" 87 canada 12.JManwaring, "LegalRegulation ofHate Propagauda inCanada" 13.ICotler, "Principles andPerspectives onHate Speech,Freedom of Expression and Non-Discrimination: The Canadian Expl:!:\enceas aCase-Study in Striking aBalance" 123 ISBN 1870798 767 CommonwealthofIndependentStates 14.YSchmidt andT Smith, "Sources ofInter-Ethuic Discord Throughout theFormer Soviet Union" 130 15.SJRoth, "Additional Comments onAnti-Racism Laws inthe Printed intheUnited Kingdom. Former Soviet Union" 136 Denmark 16.L Johaunessen, "Racist Snakes in theDanish Paradise" 140 -i - France 38.Commission forRacial Equality 333 17.RErrera,"InDefence ofCivility: Racial Incitement and Group Libel 39.Committee ontheAdministration ofJustice 335 inFrench Law" 144 40.Human Rights Watch 338 Germany 41.Justice 340 18.RHofmann, "Incitement toNational and Racial Hatred: 42.Liberty 342 The Legal Situation inGermany" 159 43.The Islamic Society for thePromotion ofReligious Tolerance 345 India 19.VEswaran, "Advocacy of National, Racial and Religious Hatred: The Indian Experience" 171 PartV: Evaluating Laws Againstlnsull and Incitement Israel 44.MBanton, "TheDeclaratory Value ofLaws Against Racial Incitement" 349 20. ELederman and MTabory, "Criminalization of 45. BParekb, "Group Libel andFreedom ofExpression: Racial Incitement inIsrael" 182 Thoughts on theRushdie Affair" 358 21. JSchoffman, "Legislation Against Racist Incitement inIsrael: 46. SColiver, "Hate Speech Laws: Do They Work?" 363 A 1992Appraisal" 192 Latin America 22. SJRoth, "Laws Against Racial andReligious Hatred in Annexes. Latin America: Focus onArgentina and Uruguay" 197 A-International Standards 377 Netherlands B-Reservations and Declarations Concerning Racist Speech and 23.IBoerefijn, "Incitement toNational, Racial andReligious Hatred: Advocacy ofRacial and Religious Hatred 394 Legislation andPractice inthe Netherlands" 201 C-Selected Bibliography 402 South Africa 24. GMarcus, "Racial Hostility: The South African Experience" 208 Notes onContributors 413 25.Lene Johannessen, "Should Censorship ofRacist Publications Have a Place in theNew South Africa?" 223 Sri Lanka 26. SAbeyesekera and KLCain, "Incitement toInter-Ethnic Hatred inSriLanka" 238 United Kingdom ABBREVIATIONS 27.JOyediran, "The United Kingdom's Compliance with Article 4 ofthe International Convention ontheElimination ofAllForms of ACHPR African Convention onHuman and Peoples' Rights Racial Discrimination" 245 ACHR American Convention onHuman Rights 28. GBindrnan, "Incitement toRacial Hatred in theUnited Kingdom: CERD Committee on theElimination ofRacial Discrimination Have We Got theLaw We Need?" 258 CERD Convention International Convention on theElimination ofAll 29..TMurphy, "Incitement toHatred: Lessons from Northern Ireland" 263 Forms ofRacial Discrimination USA CSCE Conference onSecurity and Co-operation inEurope 30.RGSchneider, "Hate Speech intheUnited States: ECHR European Convention onHuman Rights Recent Legal Developments" 269 ICCPR International Covenant onCivil andPolitical Rights 31.RDelgado, "Campus Antiracism Rules: Constitutional Narratives UDHR Universal Declaration ofHuman Rights inCollision" 284 UK United Kingdom ofGreat Britain and Northern Ireland 32. NStrossen, "Balancing theRights toFreedom ofExpression andEquality: UN United Nations ACivil Liberties Approach toHate Speech onCampus" 295 US United States PartIV:Policy Statements from Human Rights Organizations 33.ARTICLE 19 315 34.American Civil Liberties Union 319 35.American-Arab Relations Committee 323 36. Anti-Defamation League ofB'nai B'rith 326 37.Board ofDeputies ofBritish Jews 328 -iii- -ii - ACKNOWLEDGEMENTS EDITORIAL NOTE ThisbookistheresultofaConsultationofmorethan30expertsfromaroundthe WegratefullyacknowledgethesupportofTheCalousteGulbenkianFoundation, world,convenedbyARTICLE19andtheHumanRightsCentreoftheUniversity The Barrowand GeraldineS CadburyTrust,The NuffieldFoundationand The ofEssex,whometfortwodaystodiscussthehighlycomplexandcontroversial JosephRowntreeCharitableTrustforthispublicationandforthe1991Consultation issueof theeffectivenessoflaws whichprohibit "hateexpression".Theexperts onIncitementtoHatred. weredividedintothreeworkinggroupsandeachgroupwasaskedtoaddressone Wewishtothankthemanyindividualsandorganizations,too numerousto ofthefollowingquestions: mentionbyname,whoprovidedvaluableadviceandinformationforthispublication. 1. Howhaveanti-hateexpressionlawsworkedinpracticeinvarious Thanks are due to ARTICLE 19 staff includingCarmel Bedford,Helen countries? Darbishire,SaidEssoularni,FionaHarrison,SusanHay,RobertSalmon,Elizabeth 2. Whatkindsofexpression,if any,shouldbeprohibited,andcan interna S~hofield, and volunteersElizabethLloyd-Owen,SvenjaLohmaunand Redley tionalstandardsprovideanyguidanceinthisarea? Silva. 3. Whatarethemosteffectivesanctionsandremediesforhateexpression? Thepublicationprocesswasco-ordinatedbyAnnNaughtonandadditional editorialassistancewasprovidedbyJoannaOyediran.Desktoppublishingwasby Discussionwaslivelyandintenseand,predictably,fewpointsofconsensuswere SueYorkandcoverdesignwasbyTonyHall. identified.Onepointonwhichagreementwasresoundingwasthatmoreresearch was needed. Various areas for further study were identified, including close ARTICLE 19, INTERNATIONAL CENTRE AGAINST CENSORSHIP examinationof theexperiencesofarangeofcountrieshavingdifferentkindsof laws,differenttraditions,differenteconomic,socialandpoliticalconditions,and ARTICLE 19 takes its name and mandate from Article 19 of the Universal experiencingdifferentdegreesofinter-communaltensions.Thisbook,bornfrom DeclarationofHumanRightswhichproclaimsthefundamentalrighttofreedom thesechallengesandencouragedbytheenthusiasmofparticipantswhofeltthatthe ofexpression.ARTICLE 19worksimpartiallyandsystematicallytoideutifyand Consultationpaperspresentednewinformationandinsights,aimstocontributeto opposecensorshipinits manyforms,todefendthevictimsofcensorshipandto thedebate. promote strengthenednationaland internationalstandardsfor the protectionof Attheoutset,wewishtomakeabundantlyclearwhatwedidnot setoutto freedomofexpression. accomplish.First, thebookdoesnotpurporttobecomprehensiveorevenrepre ARTICLE19monitorsindividualcountries'compliancewithinternational sentative.ThefactthatwehavenopapersfromAfrica,onlyabriefoverviewfrom standardsprotectingfreedomofexpression,andregularlymakessubmissionsto LatinAmerica,twopapersonEasternEurope,and twofromAsiaby no means inter-governmentalorganizationssuchastheUnitedNationsHumanRightsCom reflectsa lackofappreciationoftheenormityofthe tensionsbetweennational, missionandCommitteeandtheEuropeanCourtofHumanRights.ARTICLE19 ethnicandreligious.communitiesinmanycountriesthroughoutthoseareas.Even hasaninternationalmembership. among western democraciesour country studies are not reflective of the full diversityofapproachestohateexpression. ARTICLE19,InternationalCentreAgainstCensorship, Second,thebook focuseson theimplementationandeffectivenessofhate 90BoroughHighStreet,LondonSEI ILL,UK. expression laws. Contributorswere not asked to discuss other, possibly more Tel.(+4471)4034822;Fax.(+4471)4031943. effective,measuresforrespondingtohatred,discriminationandviolence. Third,andrelatedly,thebookadoptsaprimarilylegalapproachtoexamining THE HUMAN RIGHTS CENTRE, UNIVERSITY OF ESSEX issues,ratherthan,forinstanceasociologicalorpoliticalscienceapproach.Weare pleasedtoofferinPartVonepapereachfromasociologicalandapoliticaltheory The Human Rights Centre, University of Essex, was established in 1983.Its perspective. purpose was togivea focustoresearchandteachinginBritainon iuternational Fourth,wedidnotaskcontributorstoaddresshateexpressionagainstgroups humanrights.In1989theCentrewaswidenedtoiuvolve,inadditiontoLaw,the identifiedbycharacteristicsotherthanthoseincludedintheinternationalstandards: disciplines of Philosophy, Political Science and Sociology,with the object of namely,nationalorethnicorigin,race,colour,descentandreligion.Intheevent, encouraginginterdisciplinarywork. fewlawsprotectothergroupsfromhateexpression. . TheC::entrew, hileglobalinitsexpertiseandconcerns,hasaspecialinterest We also wouldliketo maketwodefinitionalpoiuts.First, theterms"hate 10humannghts10EuropeandtheCommonwealth.Itisdistinctiveintheemphasis speech"and "hateexpression"are used virtuallyinterchangeably("expression" itgivestotheintegrationofhumanrightstheoryandpracticeandinitsconcerns reflects the terminologyof the internationalstandardswhile "speech"is more withinternationalhumanitarianlaw.TheCentrehasworkingrelationswithsimilar commoninnationaljurisprudence)torefertoexpressionwhichisabusive,insult centresacrossEuropeandworldwide. ing,intimidating,harassingand/orwhichincitestoviolence,hatredordiscrimina tion.Theterms"hatespeechlaws" and,sometimes,"anti-hatespeech laws" are HumanRightsCentre,UniversityofEssex, used torefer tolaws whichprohibitoneor all of threemaincategoriesofhate WivenhoePark,ColchesterC04 3SQ,Essex,UK. speech:grouplibel,harassmentandincitement. Tel.(+44206) 872558;Fax.(+44206)873428 -iv- -v- Second,theterm"race",whenusedtorefertopeople,ishighlysuspect.As INTRODUCTION statedbythetwoUNSpecialRapporteursonFreedomofOpinionandExpression (inChapter6),afirststepinseekingtopromotetoleranceandnon-discrimination istoavoid Sinceitsinceptionin 1986,ARTICLE19hasendeavouredtocontributetopublic theuseofsuchatermas'race' which,whenappliedtohumaubeings, debate on complex areas of freedom of expression.The balance between the hasnoscientificmeaning.Unequivocalrecognitionofthehumanrace fundamentalrighttofreedomofexpressionandtherighttoequalityisclearlyone as one and indivisible appears to be regarded as the indispensable sucharea. Accordingly,in April 1991,ARTICLE 19togetherwith theHuman preliminaryforthestruggleagainstracism.' RightsCentreoftheUniversityofEssexconvenedatwo-dayConsultationatwhich Nonetheless, the term is used throughout this book because of its widespread over30expertsfromaroundtheworldparticipated.TheConsultationitselfwasa acceptance-andtheacceptanceofrelatedwordssuchasracismandracist- inboth lowbudgetaffairwithsomeofthoseattendingcoveringtheirowntravelcosts;a commonparlanceandinternationalllw. "Race"hereincludescolouranddescent testament,perhaps, to the great interest and concern about how to addressthe aswellasnationalandethnicorigin. growingphenomenonofethnicviolenceandhatred. Theintroductorychapterswhichfollowelaboratetheparametersofthisbook, highlightsalientpointsofthecountrystudies(Introduction)andsetthecontextof AimsandContenisofthisCollection ~e discussions,both in termsofprinciples(Chapter I) and factsabout hatred, discriminationandviolenceagainstminorities(Chapter2). FollowingtheConsultation,andwiththeconsensusofparticipants,wedecidedto Thediscussionsofinternationalstandardsareinlendedtobereadilyunder compileawiderdocumentationofthelawsbywhichhateexpressionisaddressed, standabletothosewhoarenotversedininternationallaw(orlawatall),andareof controlledorpunished.Aprimaryaiminpublishingthiscollectionistoposecore interestfortheirhistoryofideasaswellasfortheirsummariesofcurrentinterpre questionsandtoofferawiderange ofviewpoints.Theseinclude:howhavelaws tations of those standards.The chapter by the twoUN SpecialRapporteurson restrictingexpressionbeenappliedinpractice?;whatguidancedotheinternational FreedomofOpinionandExpression,drawnfromapreliminaryreporttheyprepared standardsprotectingbothfreedomofexpressionandequalityoffer?Whatevidence fortheUNinAugust1991,proposesaninnovativeandnarrowconstructionofthe istherethatlawscanhaveanimpactonhatespeech,orwhethersuchlawsinfact "ha.te-related"restrictionsonfreeexpressionsetforthintheinternationalstandards, promotenon-discrimination?Whattooistheevidencethatlawsdesignedtocurb whichundoubtedlywillcontributetotheevolutionoftheinterpretationofthose hatespeechmayalsobeusedtorestrictthelegitimatepoliticalexchangeofideas standards. necessarytoademocraticsociety? ThepolicystatementsfromorganizationsincludedinPartVillustratehow Thisbookhasbrokennewground.Anumberofcontributorshaveundertaken differenthumanrightsgroupshavecometotermswiththedilemmasposedbyhate originalresearch on patterns of implementationin their countries.Others have speech.Whilewecanvassedalargenumberoforganizationsconcernedwithhate brought together information not previously collected. Several have provided speechitisatestamenttothedifficultyofthesubjectthatrelativelyfewproduced policyperspectivesfromcounties,suchasSriLankaandRussia,fromwhichviews statementsandevenfewerhadstatementsinhand.Asaresult,theorganizations onthisissuearerarelyreceived.Principledargumentsforopposingallrestrictions representedinthisbookdonotreflectthegreatdiversityoforganizationsworking on hate expression unless necessary to prevent imminent unlawful action or onhatespeech.Nonetheless,wearepleasedthatourinquiriespromptedseveralof face-to-faceharassment,and the counterarguments,are systematicallyand co themtograpplewiththeissue. gently presented by the US contributors.Contributorsfrom Europe as well as We hope that this book may assistotherorganizationsand individualsto AustraliaandCanadadiscussthevarietyoflawsandtheirimplementationwhich clarifytheirownpositions. restricthateexpressionandareseentohavevalue,eveninliberaldemocracies,in ordertosafeguardequalityanddignity.ContributorsfromRussiaand SriLanka, facinginter-ethnicandcommunaltensionswhichhaverackedtheirregionswith SandraColiver armedconflicts,suggestthatnarrowly-drawnrestrictionsmighthelptocurbthe LegalOfficer,ARTICLE19 violence. May 1992 Twenty-fourpapersexaminethelawsin15countrieswhichregulatefreedom ofexpressionintheinterestsofracial,ethnic,religiousandnationalharmony.Other papersdiscusstheapparentcontradictionsbetweendifferentinternationalstand ards which govern the rights to freedom of expression and equality and the interpretationofthesestandardsbyinternationalbodies.Themajorityofcontribu torstothisvolumediscusstheexperiencesindemocraticcountries,wherefreedom ofexpressionishighlyvaluedandprotectedbyconstitutionandlawandthuswhere 1 Seepara.56oftheirchapterinPartII. theissueofhateexpressionismosthotlydebated.Mostpaperssharetheviewthat lawswhichrestrictfreeexpressiondonotreducehatredorviolence.Otherspoint 2 The.JnteptationaClonventionontheEliminationofAll-FormsofRacialDlscrlrninaiiondefines "racialdiscrimination"tomeandiscriminationbasedon"race,colour,descent,ornationalorethnic tothelackofempiricalevidenceasto therelationshipbetweenhatespeechand origin". actsofviolence. Mostcontributorsacceptthepremisethatlawscanserveausefulfunction, andthatproblemslieinselectiveorindifferentenforcement.Thusitisrepeatedly •vii _ ·maintained that the enactment of laws which restrict hate speech give "a clear thiswork, do not believe that criminalizing expression could ever resolve thereal message about acceptable staudards" which will "eveutually establish bouudaries problem ofracism andracist discrimination. Asonecontributor hasremarked, the with which most people feel comfortable". But eveu here, the real problem in law can play only a limited part increating ahumane andgentle society. drafting laws which are sufficiently narrow and also effective is recognized. Quite apart from the real threat to freedom of expression, anti-hate speech Questions wereraised astowhether suchlawsmay distract from theneed for more legislation is notoriously difficult to interpret and enforce. "One must be realistic effective measures, and some contributors worried about theill-effects ofsuccess inassessing the difficulties involved inregulating hate speech" asone contributor fulprosecutions which create racist "martyrs" and those which result in acquittals writes. Any legislation in thisarea highlights problems ofdefinition and interpre appearing to vindicate their racist ideologies. tation; concepts such as "ridicule", "hostility" and even "hate" are open-ended, There is general endorsement of the strict implementation of mechanisms necessarily subjective and potentially dangerous in theexercise ofpower. which fallinto thecategory ofsocial andcultural attempts tocombat racism. Such One of the areas discussed is that of religious intolerance. The rise of both mechanisms wouldinclude: education onrespect forethnicdiversity; non-discrimi Christian andIslamic fundamentalism intheUS,Europe, theMiddle EastandAsia, nation inhousing, education andemployment; theadoption ofanti-racist strategies and Jewish fundamentalism in Israel, is a worrying phenomenon ifonly because in schools, universities and the media; and increasing representation of ethnic, theadherents tothese movements clearly attempt toimpose upon theworld asingle religious and racial minorities inkey institutions such as police departments and truth and this necessarily outlaws contrary views. Perhaps themost notorious case the courts. These and various means to contain potential violence other than by isthat of thefatwa or death sentence pronounced by thelate Ayatollah Khomeini restricting free speech are important themes inthisbook. against theBritish author Salman Rushdie following thepublication of the novel TheSatanicVerses.In the thousands of articles which have been written on this ARTICLE19's Position case, the basic facts have become blurred: a man who has committed no crime in thecountry ofwhich he isacitizen, hasbeen condemned todeath and, moreover, Asacampaigning organization, ARTICLE 19consistently protests thewidespread his death is actively sought by aforeign power because oftheoffence his work of violations of theright to freedom of expression, and recognizes that governments fiction hascaused Muslims. ARTICLE 19unequivocally rejects thedeath sentence andorganizations cananddousefreedom ofspeech topromote opinions which are andconstantly asserts the right of any individual topublish his ideas in awork of antithetical to the common standards of dignity underpinning the human rights fiction. movement. Atthe same time weacknowledge that Muslims, amongst others, have every ARTICLE 19equally recognizes that laws, once on thestatute book, can be right to protest publicly about the book inquestion and tobroadcast the nature of and are used by governments todiscriminate against minorities whether these be theoffence andinsult which theyfeel.Those oneither sideofthiscontroversy must ethnic, religious or national. Even laws framed in a democracy, and however be free to express their ideas and beliefs and todiscuss them with their critics on carefully drafted, may be used subsequently to suppress thefundamental right to thebasis ofmutual tolerance, free from censorship, intimidation andviolence. freedom ofexpression. Such laws may be used topenalize members ofoppressed communities who attempt to promote a counter viewpoint or to stifle speech AdvancingtheDebate advocating autonomy orotherchanges ingovernment. Itis,forexample, discussed inthisvolume thatlaws against racist speech inSouthAfrica have notbeen applied At the end of the Consultation, the view was expressed that the issues were too soastoensure racial equality ortoprotect victims ofracial abuse. Infact theywere complex and the nexus between laws, protections and levels of hate speech too used and intended tobe used asmeasures tostifle growing black opposition toan immeasurable tojustify any definitive statement. There was also aconsensus on oppressive system; thus the government used thelaws topunish thevictims of its the need for further study, especially of national experiences in trying to counter racist policies. Another contributor points out how a Soviet law which prohibited racial and religious hatred and violence; this volume is afirst attempt. There was incitement to national racial hatred was regularly used to suppress dissident acommon viewthatcivil remedies were generally preferable tocriminal sanctions. movements and human rights activists. Inthefinal plenary session oftheConsultation oneparticipant long familiar The guarantors of democracy are many, varied and precious; one such with United Nations procedures said that the UN in its wisdom only recognized guarantor isthe freeexchange ofideas andopinions. What mustbepreserved atall two types of meetings; those which were successful and those which were very costs are both democratic discussion and the channels for its daily practice. successful! The Consultation, he said, fell firmly within the latter category. In Unfortunately, at times, democratic discussion including hate speech (which may retrospect, one ofitssuccesses hasbeen that subsequent work hasengendered this involve insult, invective and deeply offensive racial slurs) necessarily involves reference collection of the laws and practice from 15countries. We do not claim trampling ontheideas andbeliefs heldprecious byothers. ARTICLE 19's concern thatitisacomprehensive collection, but we very much hope that inpublishing the is that these slurs and insults be met at all times bycounterclaims, arguments and volume atthis time, we may stimulate further thought, discussion andpublication. discussion. To suppress such slurs isnot toresolve thehatred but perhaps todrive Meanwhile, ARTICLE 19 will continue to maintain a watching brief on hate it underground and thereby encourage acts ofviolence. We have been atpains to expression and the way in which it is dealt with by various countries throughout promote theview thatspeech should never be censored based onitscontent alone. theworld. Any restrictions on expression should be justified only by reference toits impact such asthelikelihood oftheexpression leading directly toimminent lawless action. Frances D'Souza ARTICLE 19acknowledges the wide gulf between condemning ideas and Director, ARTICLE 19 crirninalizing them. More simply put, we, incommon with several contributors to May1992 ~ viii _ PART I: Preliminary Considerations Chapter1 OVERVIEWOFA DILEMMA:CENSORSHIPVERSUSRACISM KevinBoyle Thisbookgrewoutofaconsultation atEssexUniversity inApril 1991.Thepurpose of the consultation was to explore the challenge set for defenders of freedom of expression by the promotion of racism through speech. The clear tenor of the consultation andofthis collection isundoubtedly pro-freedom ofexpression, with the onus on those who would restrict this freedom to justify censorship in the interests ofracial equality andtheelimination ofracial discrimination. The casefor restriction on hate speech was made at the consultation and is also made in this book. Indeed, the majority of the papers assume the case for at least some restrictions on grounds of equality and dignity while conveying concern over the effects ofany such restrictions on thevalues underlying freespeech. Nevertheless, it is possible to conceive of adifferent selection of materials andopinions which might operate from astarting point which favours equality and non-discrimination over freedom of expression. Such a work would certainly be useful incontinuing thedebate. However thatmaybe,mostofthearticles, analyses andpolicy statements collected inthisbook seektofindabalance between theright to speak and thepursuit ofracial, religious and communal justice and harmony, a balance that requires the least interference with untrammelled freedom of ex pression. THEMEANINGOFBALANCE If the weights on the balance favour free speech, is the metaphor of balance appropriate? The actual.position, it can be argued, isthat two human rights are in conflict: thefreedom toadvocate distasteful opinions ortoconvey distorted orfalse information and the conflicting right not to be a victim of discrimination and prejudice.' On that analysis, to prefer freedom of expression is not toprefer the countervailing freedom from discrimination. Oneright issubordinate totheother. Thebalance metaphor, however.can bejustified ifsomespeechonsomeoccasions is restrained and on such occasion the right to be free from discrimination is preferred to the free speech principle. It is in that sense that the title ofthebook, StrikingaBalance,isjustified. Thesearchisforthosecircumstances andconditions inwhich oneright should bepreferred over theother. There isalso aneed tooffer coherent justifications for which right is preferred in particular circumstances or else, from the stand-point of freedom of expression, there is arisk that limitation willencroach tothe point where the right itself isthreatened. Topoint outthat therearecircumstances inwhich other interests should win outoverfreedom ofexpression isnotinconsistent withastrongcommitment tothe value of freedom ofexpression. Equally toargue that the law should not interfere withcertainkinds ofantisocial speechorinsulting anddenigrating publication does notmeanthatfreespeech advocates areindifferent totherights ofracial orreligious Forathoughtfulandextensive discussion of theinjuriescausedbyracistspeech, see Richard DeJgado'schapterinPartII!. . . - I - ~no~ties..To thecontrary, they strongly believe that freedom of expression isa Public opinion in the United States and Europe (and, indeed, in India and Vitalnght mthestruggle todefeat discrimination, bigotry andintolerance. severalother Asiancountries) hasshownincreasingresistance toso-calledaffirm ativeactionpolicies (or"specialmeasures"ascalledforin Article 1(d)oftheCERD THE CHALLENGE OF RACISM Convention) on behalf of excluded ethnic and religious minorities. The general perception has been that such measures lack fairness. Without examining the Howe~erinfluenced by standpoint, theprotagonists inthisdebate willnotdispute arguments here,itisnevertheless important tonotethatitisonlyattheextreme of the.evidence ~at.the.articulationof~ejudice, thefomenting ofhatred, thejustifi publicopinionthatvoicesareraisedagainstthegeneralnormofnon-discrimination catio.nof discrimination and thedemal of esteem forpeople distinguished by the whichisfirmly established indemocratic societies. dommant groupbecause oftheircommon origins, theirreligion ortheircolour has Butracism, racial discrimination and hatred havenot yetbeen eliminated in not abated in the modem world. Thepicture inEurope surveyed byPaul Gordon thesamedemocratic societies. Theliterature which seekstoexplain thecontinued (in Cha~ter2) isespecially worrying. The entire moral basis oftheintegration of existence and indeed resurgence ofracism, anti-Semitism andxenophobia strikes Europe ISchallenged by thenewurge tolimitimmigrants andasylum seekers and atentativenote.ArecentUnitedNationsreportconcluded that"theprimarycauses the ?pen espousal ofracism and xenophobia by mainstream democratic political of racism and racial discrimination and apartheid are deeply imbedded in the parties seeking to compete with theresurgence of fascist and racist movements. historical past and are determined by a variety of economic, political, social and Thesemovements haveextended theirtraditionalhostilitytoJewsandothercitizen culturalfactors.,,2Manifestations ofracismonaglobalscalearelinkedinthestudy groups toimmigrants andrefugees from Asia andAfricaaswellas thosecrossing to"suchareasasconquest, thesearchforcaptivesforracialslavery, theimposition European borders from theformer Eastern bloc.' • ofracialexclusionary laws,colonialism andimperialism".Ofparticular interestare . Thi~bookwas?ompleted inthedaysfollowing theacquittal byajury offour what the report calls the "two great paradoxes" of history: that racism actually whitepoliceofficers~nLosAngelesofthecrimeofassaultingablack man,Rodney increasedasdemocracy expanded andthatracismgrewasscienceexpanded. Inthe King. An amateur vidcotape which showed the officers assaulting Mr King had latenineteenth century "scientificracism" flourished, spawning falsetheories and beenplayed repeatedly ontelevision intheweeksandmonthsbefore thetrial.The doctrinesused tojustify thebelief intheinherent inferiority of certain peoples or verdict, which contradicted theevidence ofsustained assaultrecorded inthefilm the superiority of others as determined by genetically transmitted differences of ledtoanexplosion ofrage across theUnited Statesandtoatleast 50fatalities and race. extraordinary devastation in California. The United States, which has given the We still live under theinfluence ofthese scientifically spurious ideas.Their greatest emphasis tothefreespeechprinciple, hasdiscovered thedepressing truth persistence explains the debate over the.use of law to seek to eliminate their that a generation after the Civil Rights campaign, racism and poverty constitutes influence. as massive a gulf as ever, separating the life chances of the black minority from Might not endorsement ofpolicies which firmly penalize racial hate speech those oftheaffluent whitemajority. andpublication contribute tothatfirstgoalofthehumanrights movement, thatall Thedifferent tendencies inthedebate over thecontrol ofhatespeech would peopleshouldbe treated asentitled toequalrespect anddignityregardless oftheir equally accept the irrefutable evidence that moral indifference towards or active religion ornational orethnic origin? Would legal constraints ontheexpression or ~n~ouragement of manifestations of hatred leads to the destruction of civilized displayofbigotryandprejudice towardsthosewhoarethevictimsofdiscrimination livmg, warandevenholocaust.Theentireandimpressivestructureofinternational makeadifference? Iscensorship justified ifitmuzzles racism? hu~an rights law since 1945was built as amoral answer totheNazi ideology of Much censorship down thecenturies hasbeen advanced for idealcauses to racism. promoteversionsofthegoodorthetruth,whethersecularorreligious.Ithasalmost Thegreatest focus of humanrights initiatives since 1945hasbeen onefforts always ended in disaster in theconstricting of debate, the suppression of dissent ha~e righ~ ?e ':'010 to .the to free invidiousdiscrimination ongroundsofrace,gender and the corruption of the truth. The advocate of freedom of expression has no orreligious belief llTev~rslblyaccepted intheworld. There have been significant difficulty in demonstrating the abuse of legal controls even on racial speech in advan~esmthatcampaign. Theending ofthesystemofapartheidinSouthAfrica, contemporary history. The South African laws against racial hatred were used apolitical system built on racist theory, has been one of the major andprofound systematically against thevictims ofitsracist policies.3InEasternEurope andthe steps along theroad totheelimination ofracism. former Soviet Union laws against defamation and insult were vehicles for the . .O~er125 states have ratified the main international treaty against racial persecution ofcritics who were oftenalso victims of state-tolerated or sponsored discrimination, the International Convention on the Elimination of All Forms of anti-Semitism.4The writer Salman Rushdie hasbeen subjected for threeyears to Discrimina~on Racial (CERD Convention). This Convention has deeply in persecution andadeath sentencebecause hisnovelwasdeclared aninsulttoIslam. flu~ncedthedomestic lawsofmoststatesdiscussedinthisbook.Itnotonlyoutlaws The crux of the dilemma for the free speech advocate isnot a fear that the racist speech but.~so the practice of discrimination, interalia,in employment, language ofintolerance orhatemaycontain truthwhichshouldbeheardbutrather housmg, theprovision ofservices andotherfields. States,byvirtue ofArticle 2of theConvention, arerequired toadopt apolicy ofpositive actiontoeliminate racial dis~riminationincluding measures whichpromote understanding among different 2 Political, historical, economic, social and culturalfactors contributing to racism, racial discrimination andapartheid (NewYork:UN,1991). racial groups and assist minorities in social, economic, cultural and other fields. . The creation of apublic opinion against racial discrimination is evidenced in the 3 SeethechaptersbyGilbertMarcusandLeneJohannesseninPartIll. general acceptance of these norms which limit the individual's contractual and 4 SeethechapterontheformerSovietUnionbyStephenJRolhinPartIll. property rights. -2_ the old problem of quia custodiet custodies? Who is to oversee the censor? No Thecontrast mayalsobeinfluencedbythedifferentlegalcultures,civil and advocate of freedom ofexpression on human rights grounds could ordoesreject commonlaw,whichhaveshapedmainlandEuropeandtheUnitedStates.TheFirst the.v~lues which underlie the norms of non-discrimination. Human rights are Amendment's injunction that "Congress shall make nolaw ...abridging freedom indivisible. The strong advocacy of anti-discrimination policy is a feature, for of speech or the press" reflects a distrust of federal regulation but also the ex~mple,oftheAmericanCivilLibertiesUnion(ACLU)which,asNadineStrossen attachmenttotheEnglishtraditionsofnegativeliberty.Incontrast,theRomanLaw points out, ismore regularly engagedin thestruggle againstracial discrimination traditionsofcodification whichbaveshapedEuropeanlawdonotequateregulation throug9courtchallengesthanitisinflghtingrestricrionsonhatespeechinthesame with restriction or repression. To the contrary, codification of freedom of ex courts. pression rules including press codes, by specifying the scope of the right ~d Nevertheless, against thereality thatweseemtoknow littleabout thecauses identifying limits, are seenaspositive guarantees ofthesefreedoms. TheEnglish andeven lessabout theremedies forracial orreligious prejudices anddiscrimina situation, where neither a formal constitutional guarantee of free speech nor tion, could it be that advocates of freedom of expression need to rethink the detailed codes oflaw exist,may be considered theleastsatisfactory systemfrom justifications advancedforprivileging speech?Thatquestionwillbereturned toat whichtodevelopprincipled protection ofrightsinconflict. theendofthisoverview. Itisworthnoting thatthiscontrastbetween theUnited Statesand therest of the world has always been present at least in thepost-war era. The efforts after NATIONAL AND INTERNATIONAL STANDARDS WorldWar IItoestablish aglobal code offreedom ofinformation failedinlarge part because of the unbridgeable gulf between the then-Socialist states and the Oneapproach toconstructing ananswer tothedilemmaraisedby haieexpression United States over the priority of right or duty and the role of the state in the ISto examine what policies are in fact pursued by states, and what policies are regulation offreedomofspeechand thepress. mandated by the international code of human rights standards elaborated since The most important early debates on this subject took place at the United 1945.Thatistheapproach adopted inthisbook. NationsConference onFreedom ofInformation in 1948.The key actorswere the PartI1I,CountryExperiences, cannot claim tobecomprehensive (onemight UnitedStatesand the SovietUnion. The fruitsofthatconference includedadraft noteinparticular thatitexcludes themostpopulousoftheworld's states,China a setofguidelines for theworld's press, adraft convention on freedomofinforma societywhich combines atraditionalculture ofxenophobia withtotalcensorship). tion,a draft convention on the right to correction and a draft convention on the BU~ for those countries which are examined, it is clear that they divide into the gatheringand transmission ofnews. ymted Statesandtherest.IntheUnitedStatesthebalance isunequivocally drawn The conference, although it achievedmuch, failed over a central problem: m favour of freedom ofspeech. There isno federal regulation and minimal state irreconcilable concepts of freedom and responsibility of the media. On the one regulation of hate expression. No other country has the equivalent of the First hand, the United States insisted on the widest definition of freedom. It accepted Amendment or the jurisprudence which has developed around it. In the other thatthepressbadtoactresponsibly,butitopposedanyroleforthestateinensuring countries the balance is found through theacceptance thatracist speech must be truthful and ethical media standards. On the other hand, the Soviet delegates sanclIO~edunderconditionsprescribed bystatute.Thechapters inthisbook about emphasizedresponsibility before freedom, andinsisted ontheright ofthestate to the United States all address the contemporary context fordiscussion of the bate supervise the press." A chief concern of the Soviets was the suppression ofwar speech issue inthatcountry; namely, college campuses. Thatdebate concerns the propagandaandincitement tonationalhatred.While thegoalofelimination ofwar compatibility of the constitutional values offreedom ofexpression withdiscipli propaganda was sharedby theUS, atissue wasthe means.The USviewwasthat ~ary~odesthatrestrain abusiveandinsultingspeechdirectedatmembersofgroups greaterfreedomofallcommunications wouldbethebestanswer todistortion; the Id~ntIfied by reference to such characteristics as ethnic or national origin, race, Sovietswanted stateresponsibility. religion, genderand sexual orientation. Ultimately, there was no way out of the deadlock over what the limits on Noothercountryentrydiscussestheissueofcampushatespeech.Thisisnot, expression are and how they are to be enforced. The conference failed but had presumably,because thephenomenon ofracistexpressioninuniversitieselsewhere influential effects for the modern debate over hate expression. Article 19of the in the world does notpresent a problem, but because such regulation would be Universal Declaration wasdrafted atthe conference, andtheclause inArticle 19 unproblematic giventheexistenceofconstitutionalandlegislativestandardswhich oftheICCPR thatrefers tothe "specialdutiesandresponsibilities" intheexercise fo~ allow the imposition of restraint by criminal or civil laws on hate speech. offreedom ofexpression canalsobesourcedtothedebate at theconference. The Bxplanationsforthedisti~ctivepositionoftheUnitedStatesmustincludeitshistory UnitedNationsGenocide Convention 1948includedasapunishable crime "direct asasocietybornmrebellionagamst,amongotherthings,censorship. Thefactthat andpublic incitement tocommit genocide". (The long campaign topursuade the it was a "drawingboard" societybuilt byimmigrants made possible theassertion United States to ratify the Genocide Convention succeeded in 1988.)Lastly, the o! ~ew pr~nciples of democratic republican order. In contrast, the European so adoption of Article 20 of the ICCPR and its prohibition of warpropaganda and cieues WhIChthe waves of immigrants left could not.erase theirhistories ofwar expression which incites national, racial orreligious hatred wasadded tothetext religious and ethnic quarrelsandconflict. ' oftheICCPR ontheinitiativeoftheSovietUnionandalliedstates,havingbeena clausefirstpromoted by theUSSRattheUN conference. 5 SeethechapterbyNadineStrossen inPartIll. 6 GGarboA World ofDifference: Thelnumationai Distribution ofInformation:TheMedia and Developing Countries. -4 -

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Apr 6, 1983 Regulating Hate Speech on Campus: A Modest Proposal?, Duke Law Convention on the Elimination of All Forms of Racial Discrimination". 4.
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