From the Seattle Times: Hate speech is often free speech, but how can we stop it?

The author does a good job - in my opinion - laying out the dilemma hate speech presents in a free society, but doesn't provide strong solutions. Maybe there are none.

- Click here for the article.

Those who favor laws prohibiting hate speech cite human dignity and the psychological damage it has on its victims, as well as its historical relationship with genocide, as the main reasons for censorship. In the United States, however, free speech is considered an essential component of democracy. In order to govern ourselves effectively, we believe we need access to all ideas regardless of their effect.

In a recent Supreme Court case involving the Westboro Baptist Church, whose members picket the funerals of fallen soldiers with signs reading, “God hates fags,” Chief Justice John Roberts said that hurtful speech on public issues must be protected to ensure that public debate is not stifled. While this argument is valid, it is worth noting that the majority of judges responsible for drawing the fine line between expression and true threats or incitement, have likely not been the targets of hate speech themselves.
The question now is: What do we do about it? We value free expression but loathe government restrictions on speech. How do we address the undeniable impacts of hate speech while preserving the free flow of ideas required for an effective democracy?

Private social-media companies can limit hate speech on their sites. Activist organizations like the Southern Poverty Law Center could lobby to expand the current federal statute to punish threats aimed at broader racial or religious groups. On a more personal level, individuals with the privilege to do so can confront the people in their lives who use hate speech.

Regardless of the approach, the time to act is now. Just because hate speech is legal, does not make it right. This presidential election season, and Trump’s candidacy in particular, highlights the need for greater civility in political discourse. And civility is a choice.

Is hate speech related to ethnic violence?

A group called Hatebase think that it is and monitors social media to determine whether ethnic conflict is about to flare up:

From Foreign Policy:

In the months leading up to the Rwandan genocide of 1994, the radio station Radio Television Libre des Mille Collines blanketed the country with anti-Tutsi propaganda, inciting its Hutu listeners to "exterminate the cockroaches." During the genocide, the station took on an even more active role, reading out lists of people to be killed and their locations.

The role played by the station only became widely understood outside of Rwanda after the violence was over. Three of its former executives were eventually indicted by a U.N. tribunal for their part in the genocide, but what if the world had been monitoring Milles Collines before the killing started?

That's the idea behind Hatebase, a new initiative from the Sentinel Project, a Canadian group that aims to use social media and other technology to identify early warning signals for ethnic conflict.

There are two main features to Hatebase. The first is a Wikipedia-like interface which allows users to identify hate speech terms by region and the group they refer to. This could have some value for researchers, but Hatebase's developers are especially excited by the second main feature, which allows users to identify instances when they've heard these terms used.

"The real value is the sightings, says Hatebase's developer Timothy Quinn. "As soon as you have logged incidents of hate speech you can start mapping that stuff, looking at frequency, severity, the migration of terms geographically. There's a whole lot of value when people start mapping it against the real world

."

A bit more on hate speech

Following off the post below, here is a list of hate speech cases from about.com.

The United States is unique among democracies in believing that the right to free speech is more important than the right to not be offended. If the hate speech can be proven to be connected to efforts to act, then limitations can be imposed, but that's because an actual harm is occuring, not because someone is being offended by the speech.

This a problematic and not necessarily popular conclusion.

Here's a definition of hate speech from uslegal.com:

Hate speech is a communication that carries no meaning other than the expression of hatred for some group, especially in circumstances in which the communication is likely to provoke violence. It is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like. Hate speech can be any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities or to women.

More on hate speech below:

- From the ABA: Debating Hate Speech.
- UK Law School: Regulation of Fighting Words and Hate Speech.
- The Price of Free Speech: Campus Hate Speech Codes.

Twitter calls itself the “free-speech wing of the free-speech party.”

This article details Twitter's efforts to retain its positon as perhaps the leading platform for free speech, including offensive speech. This puts the site on one side of an ongoing debate pitting free speech against hate speech.

Twitter has refused to comply with a French court's demand to reveal the identities of individuals who sent out a series of anti-Semitic tweets. This is in addition to unsucessful efforts to fight efforts to reveal the identities of ither users of the site:

Twitter has revealed user data in several cases after being forced to do so by U.S. courts, including personal data related to several users who were supporters of WikiLeaks, such as Icelandic MP Birgitta Jonsdottir and hacker Jacob Appelbaum. Twitter also handed over tweets by two members of the Occupy Wall Street movement, after being forced to do so by a court order, although it fought against both of these decisions — and also made the request for the Occupy supporter’s data public even though it was asked not to do so.

What makes these kinds of cases so difficult is that Twitter is a private corporation with a proprietary platform, and yet it is being used as a public communications vehicle around the world, and one whose free-speech aspects are becoming increasingly important. And while we may all agree that certain types of speech are offensive, the idea that governments or courts can force Twitter to reveal the identities of those users is troubling in the extreme.

While Facebook and to some extent Google are also being used in this kind of context, Twitter is unique in the sense that it explicitly allows people to use pseudonyms. Facebook has a firm policy on the use of “real” or verified names, and while Google somewhat grudgingly allowed users to add pseudonyms to their Google+ accounts after what some called the “nym wars,” the service is still designed primarily for “real” names. Twitter is one of the only communications platforms of its size and reach that freely allows users to be known by pseudonyms.

A student argues that we need anti-harrassment laws

Obscene Incitement and Clear and Present Danger:

The Need For Anti-Street Harassment Laws

Should there be a law protecting women from street harassment? Many women believe so.

Street harassment falls under the limitations set by the Supreme Court on first ammendment freedom of speech including obscenities, incitement, and clear and present danger. These limits are spelled out by the Supreme Court as "lewd and obscene, the profane, the libelous, and the insulting or 'fighting words.'" (Supreme Court). As defined by the Supreme Court fighting words are, "by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Supreme Court). These limitations were set in cases such as Chaplinsky v. New Hampshire and Miller v. California to name a few.

Unfortunately, although shown to increase violence against women, street harassment is not taken seriously by law enforcement as noted in an article entitled, “Legal Analysis” written by an unnamed representative of the Hollaback! network. The article states, “...Laws already on the books that prohibit intimidation and harassment are rarely interpreted to address the harms of street harassment experienced by women.” (Hollaback!).

For this reason laws needs to be set in place to specifically address the issue of street harassment towards women. As with any law, predefined limiting principles would need to be set in order to prevent abuse. Street harassment should be defined as sexually explicit, demeaning, dehumanizing, and/or aggressive language directed at individuals including minors and adults who, in turn, feel threatened or intimidated and may be in danger of resulting violence physically and/or sexually.

http://www.ihollaback.org/resources/legal/legal-analysis/

http://www.freedomforum.org/packages/first/curricula/educationforfreedom/supportpages/l04-limitsfreedomspeech.htm

http://www.freedomforum.org/packages/first/fightingwords/casesummaries.htm#chaplinsky

Is Koran Burning Protected Free Speech?

Apparently some in Congress aren't sure.

From the Washington Post:

Free speech is a great idea, but we’re in a war. -Sen. Lindsey Graham (R-S.C.) Sen. Lindsey Graham (R-S.C.) suggested Sunday on CBS’ Face the Nation that Terry Jones’ inflammatory Koran burning may be an example of free speech that should be curtailed during a time of war.
A few assorted comments on the case:

- The Problem With Burning Qurans

- "Free Speech Is A Great Idea, But ..."
- Qur'an burning free speech in America?
- OUR VIEW: The limits of free speech

Drawing the Line Between Free Speech and Bullying

Wendy Kaminer is not a fan of legislation introduced in the Senate that addresses bullyign on school campuses:

There's no dearth of important issues for Congress to address in the lame-duck session, but New Jersey Senator Frank Lautenberg has introduced an entirely gratuitously anti-harassment bill anyway--The Tyler Clementi Higher Education Anti-Harassment Act of 2010. (Congressman Rush Holt introduced the same bill in the House.) Federal civil rights law has long prohibited harassment in schools receiving federal funds; Tyler Clementi was not the victim of harassment or any absence of rules against it: his suicide followed a gross and apparently criminal violation of privacy--the secret taping and broadcast of his sexual encounter with another male. So, there's no need for this bill and no sense in naming it after Clementi--unless you're intent on emotionally blackmailing people into supporting it. Naming legislation after a victim cuts off debate, daring opponents to risk appearing insensitive to the sufferings of survivors.

But this bill is not simply redundant; it's repressive, proposing a subjective definition of harassment that's more restrictive of speech and more likely to be applied arbitrarily than the definition formulated by the Supreme Court some 10 years ago. You can find a concise critique of the bill at thefire.org, which stresses that "the bill removes the requirement that the (alleged harassment) be objectively offensive... The bill also fails to define what constitutes a "hostile or abusive" educational environment, leaving that determination to college administrators"--administrators who have proven themselves oblivious or hostile to free speech, as a lamentably long list of FIRE's cases show.

Justifying Hate Crimes Law Circa 2001

I'm not sure what the precise differences are between the current legislation and the one debated in 2001, but here's the Senate Committee report justifying the bill, plus background from one of the staffers who helped draft the bill.

Are Hate Crimes Laws Constitutional?

Thanks again to Michael for pointing out a current controversy, this one over the hate crimes legislation that passed the U.S. House of Representatives this past week.

I'll wait til later to outline the arguments that are made regarding its constitutional status (which focus primarily on whether it violates First Amendment speech and free exercise rights as well as the equal protection clause of the 14th Amendment), but opencongress.org has text of the bill so we can at least look at what we are judging:

Local Law Enforcement Hate Crimes Prevention Act of 2009 -

Authorizes the Attorney General to provide technical, forensic, prosecutorial, or other assistance in the criminal investigation or prosecution of any crime that:

(1) constitutes a crime of violence under federal law or a felony under state, local, or Indian tribal law; and

(2) is motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of the state, local, or tribal hate crime laws.

Directs the Attorney General to give priority for assistance to crimes committed by offenders who have committed crimes in more than one state and to rural jurisdictions that have difficulty covering the extraordinary investigation or prosecution expenses.

Authorizes the Attorney General to award grants to assist state, local, and Indian law enforcement agencies with such extraordinary expenses.

Directs the Office of Justice Programs to:

(1) work closely with funded jurisdictions to ensure that the concerns and needs of all affected parties are addressed; and

(2) award grants to state and local programs designed to combat hate crimes committed by juveniles. Amends the federal criminal code to prohibit willfully causing bodily injury to any person because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of such person.

Amends the Hate Crimes Statistics Act to expand data collection and reporting requirements under such Act to include:

(1) crimes manifesting prejudice based on gender and gender identity; and

(2) hate crimes committed by and against juveniles. Declares that nothing in this Act shall be construed to prohibit the exercise of constitutionally-protected free speech.

Hate crimes laws are argued by supporters to be necessary in order to ensure that crimes that are historically not prosecuted by state and/or local officials (like lynching back in the bad old days) are prosecutable at a higher level less prone to local and state prejudice. The question is whether they go beyond simple punishment of acts and punish thoughts instead, which would be found unconstitutional (....probably, but read up on the Supreme Court's approval of a law punishing pandering) and whether the assumptions that the law is based on (that these criminal acts will not be prosecuted at lower levels) is no longer relevant and that this law recognizes a special class of people who will be protected at a higher level than others. Religious groups seem to have picked up on the fact that the last part of the law states that the law should not be construed to prohibit speech, but says nothing about free exercise of religious belief.

This is a great mental workout. I'll dig up some useful comments on this subject and post them soon.

Against the MySpace Verdict

Emily Bazelon writes a convincing piece that the guilty verdict against Lori Drew, the woman who created the MySpace profile that is alleged to have taunted a teenage girl to suicide:

The problems with the California case against Drew started with the poor fit between her wrongdoing and the law used to punish her. The federal Computer Fraud and Abuse Act makes it a crime to intentionally access "a computer without authorization." So what does that mean—is it a crime to hack past a password or a firewall? Or merely to violate a terms-of-service contract like the one MySpace users agree to?

There apparently is no law against what Ms. Drew did, though we may wish there to be one. The use of the above law may actually do more harm than good: It's one thing for MySpace to kick someone out for acting like a troll or even for the troll's target to sue her. It's another thing entirely to throw the weight of the government behind a criminal investigation and conviction for what usually just amounts to mischief in cyber-contracts.

So how do we address the subject? Should what Drew did be made a crime?

What about a law written expressly to address cyber-bullying? Such a statute could presumably direct prosecutors to go after only the worst of the Internet meanies. Or, then again, maybe not. A proposed bill before Congress is far broader. It targets anyone who uses "electronic means" to transmit "in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person." The penalty is a fine or imprisonment for up to two years.

Missouri, where Meier lived, has already passed a cyber-bullying law. The Missouri statute extends the state's bar on phone harassment to computers. The problem with the analogy is that the computer context is more dangerous to free speech: On the phone, you talk to one other person. On MySpace or any other Web site, you broadcast to as many people as read you.

....

All of this takes us back to earlier battles over prosecuting hate speech. As Eugene Volokh points out on his ever-vigilant blog, the cyber-bullying bill before Congress is a classic example of a law that's unconstitutional because it's overly broad. The Supreme Court has held that the First Amendment protects "outrageous" speech—from civil as well as criminal liability—even if it "recklessly, knowingly, or purposefully causes 'severe emotional distress,' when it's about a public figure." Volokh adds, "Many, though not all, lower courts have held the same whenever the statement is on a matter of public concern, even about a private figure."

That doesn't mean that a cyber-bullying statute as applied to a Lori Drew-like horror show would be unconstitutional; "Josh's" trashing of Megan was hardly a matter of public concern. But even if a better drafter could come up with a narrower law, since when do we want the government to go after bullies when the only weapon they wield is words?

Are Funeral Sanctuary Laws Constitutional?

The post below mentions efforts that states have adopted to limit the ability of Pastor Fred Phelps and his family to disturb the solemnity of funerals--especially military ones.

The pastor believes that American soldiers in Iraq died because of God's condemnation of the acceptance of homosexuality in the United States. He makes his case known, loudly, as close as he can get to the funeral services.

Considering that this is not just free speech, but the free expression of religious belief (let's assume his opinions are sincere), the Constitution seems to be on his side. The Supreme Court may decide that the greater interest of society in preserving the dignity of funeral services is more important than individual free speech and free expression, but then again it may not.

There is no right to dignified funerals guaranteed in the Constitution.

He may be labelled a public nuisance, or argued to be causing public disruptions that undermine public order, but that can apply to many other public events as well, and may justify an expansion of governmental authority beyond what is prudent.

Is Pastor Phelps another price we pay for living in a free society?

The First Amendment Center Weighs in on the topic here.

Here's a news item about a Kansas law against funeral picketing.

Shirley Phelps explains the picketing.

Should this be Protected Speech? If So Why? If Not Why?

God Hates Virginia Tech!

Let's discuss.

original tip from the daily dish.

Free Hate Speech

This may be the touchiest aspect of free speech. Are we free to articulate hatred? It's easy to say yes, but then you have to deal with people like this that make it very difficult to side with the First Amendment, though somehow you know you must.

story from the daily dish.