THE FIRST AMENDMENT AND THE DISSEMINATION OF SOCIALLY WORTHLESS UNTRUTHS
Steven G. Gey
The modern world is a relativistic place that is increasingly defined by vociferous debate about nearly every proposition. This contentiousness is not limited to assertions of opinion about religious, moral, or political issues. Even assertions about basic facts are often subjected to the doubting postmodernist gaze. Some on the political left, for example, insist that biological realities such as race and sex are largely socially constructed, while their right-wing alter egos deny with equal fervor the biological and geological realities of evolution and a 4.5 billion-year-old Earth. In a world where presidents can blithely dismiss inconvenient facts as “stupid things,” everything is open to question, even those things that are, as an empirical matter, incontestably and incontrovertibly true.
IT’S NOT WHAT YOU SAY BUT THE WAY THAT YOU SAY IT: AUSTRALIAN HATE SPEECH LAWS AND THE EXEMPTION OF “REASONABLE” EXPRESSION
Dr. Judith Bannister
At a Local Shire Council meeting in Western Australia, a Councillor said “we shoot them” in response to a discussion about a group of homeless Aboriginal people. The Councillor was ordered to pay $1,000 compensation by the Human Rights and Equal Opportunity Commission, and he also apologized and completed cultural awareness training. In an interview with a Western Australian newspaper journalist, a senior officer of the “One Nation” political party said “‘[h]ome invasions are ethnically based, Lebanese or Iranian, not Australian.’ ” He was ordered to pay $1,000 compensation and publish a retraction. A resident of a Sydney apartment block yelled racist comments at another resident and was ordered to pay $5,000 compensation. A diner owner whose premises had been vandalized put up signs, such as “Not open due to destructive Aborigines,” and the noticeboard then attracted racist graffiti that was not removed by the owner. The diner owner was ordered to apologize to a respected Aboriginal community leader who had complained.
HOLOCAUST DENIAL AND THE CONCEPT OF DIGNITY IN THE EUROPEAN UNION
John C. Knechtle
On April 19, 2007, the Justice and Home Affairs Council of the European Union adopted the Framework Decision on Racism and Xenophobia (the “Framework Decision”), which seeks to initiate substantial hate speech regulation throughout the European Union, including public speech which condones, denies, or grossly trivializes the crimes defined by the Nuremberg Tribunal, namely the Holocaust. Although the Framework Decision does not have direct effect in member states and the European Commission does not have powers to initiate enforcement actions, the Framework Decision asks European Union member states to enact legislation that criminalizes various forms of pure speech based on their content alone.
A DIALOGUE ON HATE SPEECH
Arnold H. Loewy
Americans and Europeans have very different ideas of the strength of their respective free speech guarantees. In an article by Professors Russell Weaver, Nicolas Delpierre, and Laurence Boissier on the Gayssot laws of France, we encounter an account of a free speech regime that would be an anathema to most Americans. In this Essay, I explore the different thoughts an American lawyer and a European lawyer have to help us understand why arguments that are persuasive to lawyers of one country might not be similarly persuasive to lawyers from other countries with very different cultures.
HATE SPEECH REGULATION IN CANADA
While it may not be quite right to say that there are two kinds of hate speech, there are perhaps two general kinds of harm caused by hate speech. The first kind of harm is that suffered by the members of a racial, or other, target group (the group that is both the subject and audience of the hate speech). This form of harm includes fear, intimidation, insult, and emotional trauma. The second kind of harm is the spread of hateful views in the community or, in less general terms, the instilling of hateful attitudes about the members of a minority racial group in the minds of members of the general community. The type of harm caused by a particular instance of hate speech will depend significantly on the audience to which the speech is directed. The same speech act, of course, may contribute to both kinds of harm.
HATE SPEECH AND IDENTITY POLITICS: A SITUATIONALIST PROPOSAL
The scholarly debate over campus hate speech codes is most often characterized as a clash of absolutes, a conflict between two irreconcilable moral and political visions. On one side are the so-called “free speech absolutists,” who reject hate speech1 restrictions on campuses and elsewhere based on their incompatibility with fundamental precepts of liberal democracy and individual autonomy. On the other side are critical race theorists and antipornography feminists who argue that hate speech both creates and perpetuates a poisonous social atmosphere in which minorities and women are unable to realize genuine equality of citizenship. Too often, and ironically in the context of a debate about the appropriate contours of the First Amendment’s protection of freedom of speech, it seems as though the two sides are talking past one another rather than engaging in anything resembling a constructive dialogue.