THE EXPRESSION OF HATRED

The third cluster is characterized by laws/regulations/codes that disallow the public expression of hatred toward members of groups or classes of persons identified by certain ascriptive characteristics. This includes laws/regula-tions/codes that disallow, typically without a truth defense, one or more of the following types of conduct: directing insults, slurs, or derogatory epithets at such persons or otherwise ridiculing such persons; publicly disseminating ideas based on the inferiority of such persons; the public use of any words, signs, or symbols that are deeply insulting or offensive to such persons.

Instances of this cluster can be found in domestic criminal statutes and penal codes (e.g., Belgium, ¹⁵ Bolivia, ¹⁶ Cuba, ¹⁷ Croatia, ¹⁸ Denmark, ¹⁹ Ecuador, ²⁰ Greece, ²¹ Indonesia, ²² Italy, ²³ Norway, ²⁴ Rwanda, ²⁵ Sweden, ²⁶ Turkey, ²⁷ some parts of the UK, ²⁸ the US State of Connecticut ²⁹ ). In some countries the basic criminal offense of insult does not specify but can be applied to groups or classes of persons identified by certain ascriptive characteristics (e.g., Germany ³⁰ ). Examples of this cluster can also be found in the rules of contempt of court formulated and applied at the discretion of judges. In the US case Bullard v. Florida (1975), ³¹ for instance, a judge banned the use of the word ‘chink’, albeit this intervention was overturned on appeal (cf. Del-gado and Stefancic 2004: 66–68). In addition, this cluster is instantiated in domestic civil and human rights law (e.g., Australia, ³² Mexico ³³ ). Examples can also be found in domestic press/media law (e.g., France, ³⁴ Hungary, ³⁵ India ³⁶ ) and the codes of practice written and enforced by media regulators (e.g., the UK ³⁷ ). In Case of Keira McCormack (2010), ³⁸ for example, the UK’s Press Complaints Commission (PCC) upheld a complaint against an article published in the Northern Ireland newspaper Sunday Life , which

used the terms ‘tranny’, ‘strapping’, and ‘burly’ to describe the complain-ant in the context of reporting concerns about her employment as a rape counselor in Belfast. The Commission expressed its ruling thusly: ‘While the newspaper was entitled to publish a story about people’s concerns over the suitability of the complainant’s employment, her gender identity should not have been open to ridicule.’ ‘[T]he use of the word ‘tranny’—which was a needless abbreviation, held by many to be offensive—was pejorative.’ ³⁹

Furthermore, international law recognizes certain rights and responsibili-ties on the part of states to enact and apply the present cluster of law (e.g., the Conventions of the UN, ⁴⁰ the protocols of the Council of Europe, ⁴¹ the decisions of the ECtHR ⁴² ). (Of course, it remains the case that individual countries may upon signature and ratification of internal conventions or protocols enter reservations and interpretative statements that severely limit their extent in domestic law. ⁴³ That being said, the community of states can censure states for entering such reservations or failing to enact laws.) Consider the case of Thilo Sarrazin who, as well as being a former Finance Senator of the Berlin Senate and former member of the Board of Directors of the German Central Bank, is an outspoken critic of Germany’s immigra-tion policy and its legacy. In 2009, a complaint was made against Sarrazin by members of the Turkish community in Berlin following an article he published in the journal Lettre International that carped at members of the Turkish community for failing to properly integrate into German society. ⁴⁴ The Office of Public Prosecution in Berlin elected not to bring a case against Sarrazin under s. 130(1) of the German Criminal Code, which states that it is a punishable offense to incite hatred against or insult, maliciously malign, or defame segments of the population ‘in a manner capable of disturbing the public peace.’ Eventually the complainants took their case to the Com-mittee on the Elimination of Racial Discrimination (CERD), the UN body charged with monitoring domestic compliance with the ICERD. In TBB-Turkish Union in Berlin/Brandenburg v. Germany (2013) ⁴⁵ the Committee majority excoriated the state of Germany for its decision not to prosecute.

It reminded the State Party of its obligations under Art. 4(a) of the ICERD, according to which ‘[states parties] [s]hall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred.’ It also pointed out that 4(a) does not on its face contain the breach of the peace criterion. ⁴⁶

Of all the clusters of laws/regulations/codes to be discussed in this chap-ter the present cluschap-ter is liable to draw the strongest objection that it violates important free speech values (e.g., autonomy, self-realization, democracy).

That being said, some of the laws in this cluster purport to protect such values by exempting statements published or broadcast for the purposes of public debate, artistic expression, journalistic reporting, or editorial com-mentary. In Australia, for example, s. 18C(1) of the Racial Discrimination Act 1975 (as amended by the Racial Hatred Act 1995) makes it unlawful

conduct ‘for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.’ In addition, s. 18D sets out several exemptions including ‘anything said or done reasonably and in good faith [. . .] such as for genuine academic, journalistic, artistic, scientific, or any other purposes in the public interest [. . .] or a fair and accurate report of any event or matter of public interest [. . .] [or] a fair comment on any event or matter of public interest if the comment is an expression of a genu-ine belief held by the person making the comment.’ The Act also establishes a civil complaints mechanism, meaning that complaints are initially han-dled by the Australian Human Rights Commission (AHRC), ⁴⁷ which can summarily dismiss cases or facilitate a private conciliation process between the parties. This process may result in agreed-upon remedies (e.g., apology, removal of material, payment of compensation, changes to policies and pro-cedures, additional race-awareness training for staff). Once a case has been terminated (either way), if the complainant is unsatisfied he or she may seek a determination by the Federal Court of Australia or the Federal Circuit Court of Australia, either of which can also order remedies. In Bryant v.

Queensland Newspaper Pty Ltd. [1997], ⁴⁸ for example, the Commission dismissed a complaint relating to a newspaper’s use of the pejorative terms

‘Poms’ and ‘Pommies’ on the grounds that journalists should enjoy a right of fair comment on public affairs, which includes some degree of mockery and inflammatory language.

Nevertheless, in a more recent case the Federal Court of Australia has determined that the aforementioned exemptions do not cover journalis-tic hate speech. In Eatock v. Bolt [2011] ⁴⁹ the Court considered a series of articles and blogs written by the journalist Andrew Bolt and published by the Herald Sun in its newspaper and on its website. Bolt claimed that light-skinned or mixed race Aboriginals were not genuinely Aboriginal and were only pretending to be Aboriginal so that they could access benefits intended for this group. Justice Bromberg held that the articles were written because of the race, color, or ethnic origin of a particular class of persons;

that the statements made were likely to offend, insult, or humiliate such per-sons; that the statements did not fall under the relevant s. 18D exemptions because they contained distortions of the truth and errors of fact owing to a failure of due diligence to verify the facts; ⁵⁰ and that the extent of mockery and inflammatory language used ‘far exceeded that which was necessary to make Mr. Bolt’s point.’ ⁵¹ It is precisely these sorts of judicial determinations, however, that give rise to a fear among critics of hate speech law that they facilitate unwarranted press censorship. The fear is that overzealous judges will substitute their own personal views for those of professional journal-ists concerning what facts are required and what extent of mockery and

inflammatory language is necessary in addressing issues of public interest.

I shall return to these sorts of concerns in Ch. 9 .