EXPRESSION-ORIENTED HATE CRIMES

The ninth cluster involves laws/regulations/codes that interdict speech or other expressive conduct that constitutes the enactment of an expression-oriented hate crime targeted at members of groups or classes of persons identified by certain ascriptive characteristics. This cluster may not consti-tute hate speech law under a narrow interpretation of that term, but nev-ertheless, it is comprised of laws/regulations/codes that indirectly constrain uses of hate speech and as such might be thought to implicate free speech values. It is certainly the case that civil libertarians in the US believe that cross burning statutes, for example, implicate the First Amendment even if cross burning can constitute an act of discriminatory intimidation, a type of expression-oriented hate crime. For my purposes, a hate crime is expression- oriented if it is essentially enacted through speech, symbols, gestures, or other expressive conduct, such as with the hate crimes of intimidation, provocation, or incitement to commit acts of discrimination, segregation, violence, mass murder or genocide.

Some of the laws in this cluster involve penalty enhancements, such as increased prison sentences or fines, for people found guilty of crimes or public order offenses when their offending was aggravated by hatred of people based on their ascriptive characteristics, such as race, ethnicity, reli-gion, nationality, and so on (e.g., Croatia, ¹⁷¹ France, ¹⁷² Italy, ¹⁷³ Russia, ¹⁷⁴ the UK, ¹⁷⁵ the US ¹⁷⁶ ). Other laws recriminalize existing crimes or offenses in order to create substantively new crimes or offenses relating to conduct

that is aggravated by hatred of members of groups or classes of persons identified by certain ascriptive characteristics. These laws add the fact of being aggravated by hatred to the list of basic elements of the commis-sion of the crime or offense. To give an example of exprescommis-sion-oriented crimes or offenses, it is not uncommon to find laws proscribing intimi-dation or harassment when targeted at members of groups or classes of persons in domestic penal codes and criminal statutes (e.g. the Australian State of Western Australia, ¹⁷⁷ Slovakia, ¹⁷⁸ some parts of the UK, ¹⁷⁹ several US states ¹⁸⁰ ).

In some parts of the world, at certain times, authorities have attempted to recriminalize offenses relating to provocation in order to create sepa-rate offenses relating to provocation targeted at people identified by cer-tain ascriptive characteristics. Consider the much-discussed City of St. Paul Bias-Motivated Crime Ordinance (1990): ‘Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resent-ment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.’ ¹⁸¹ At first glance, this ordinance sits foursquare within the cluster of laws/regulations/codes that disallow the public expression of hatred. Even so, the City of St. Paul insisted that this ordinance was intended to ban provocation under the rubric of the fighting words doctrine posited by the US Supreme Court in First Amendment cases. ¹⁸² The logic behind creating a subcategory of racist fighting words was essentially that in some contexts “You damn nigger”

may operate like “I challenge you to a duel” may have once operated, in the sense that it fits within a social convention around the buildup to a fight (cf. Greenawalt 1989: 144; 1995: 50). In essence, the City of St. Paul argued that some expressions of hatred may constitute acts of discriminatory provo-cation, a type of expression-oriented hate crime. Of course, in R.A.V. v. City of St. Paul (1992) ¹⁸³ the US Supreme Court struck down the ordinance. Yet the majority did so not because it was overbroad, in the sense of sweep-ing up the mere expression of hatred along with acts of discriminatory provocation. The majority did not see a reason to consider this point. ¹⁸⁴ Instead, it argued that the ordinance involved content and viewpoint discrimination.

Moreover, the present cluster includes laws against the incitement of acts of discrimination, segregation, violence or genocide against members of groups or classes of persons identified by certain ascriptive characteris-tics. As one might expect, such laws can be found in international law and human rights instruments (e.g., the covenants of the United Nations General Assembly, ¹⁸⁵ the American Convention on Human Rights (AmCHR), ¹⁸⁶ the framework decisions of the Council of the European Union, ¹⁸⁷ the Statute of the International Criminal Tribunal for Rwanda ¹⁸⁸ ). These laws are also developed through the jurisprudence of supranational human rights courts.

In Glimmerveen and Hagenbeek v. Netherlands (1979), ¹⁸⁹ for instance, the ECtHR judged as inadmissible applications made by two Dutch nationals who had been found guilty by domestic courts of possessing with intent to distribute leaflets that incited racial discrimination. In addition, examples of the present cluster of laws can be found in domestic criminal statutes and penal codes (e.g., Argentina, ¹⁹⁰ Belgium, ¹⁹¹ Brunei, ¹⁹² Cambodia, ¹⁹³ Cuba, ¹⁹⁴ East Timor, ¹⁹⁵ Ecuador, ¹⁹⁶ Finland, ¹⁹⁷ Germany, ¹⁹⁸ Greece, ¹⁹⁹ Italy, ²⁰⁰ Kenya, ²⁰¹ the Netherlands, ²⁰² Spain ²⁰³ ). They can also be found in media law (e.g., France ²⁰⁴ ).

In some instances the relevant laws specify the form of words that con-stitute incitement to acts of discrimination or violence. For example, in Islamic Unity Convention v. Independent Broadcasting Authority and Oth-ers [2002] ²⁰⁵ the Constitutional Court of South Africa opined that s. 2(a) of the Independent Broadcasting Authority’s (IBA) Code of Conduct for Broadcasting Services (1993) ²⁰⁶ —which stated that ‘[b]roadcasting licensees shall [. . .] not broadcast any material which is [. . .] likely to prejudice the safety of the State or the public order or relations between sections of the population’—went beyond the exceptions to the right to freedom of expres-sion outlined in s. 16(2) of the South African Bill of Rights, most notably s. 16(2)(c), which specifies that the right to freedom of expression does not extend to ‘advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.’ ²⁰⁷ Subsequently, the Independent Communications Authority of South Africa (ICASA), which was established in 2000, adopted a new Code of Conduct for Broad-casting Service Licensees (2009) containing s. 3(3)(c), according to which

‘Broadcasting service licensees must not broadcast material which, judged within context, amounts to [. . .] the advocacy of hatred that is based on race, ethnicity, religion or gender and that constitutes incitement to cause harm.’ This code of conduct interdicts only the use of advocacy of hatred that constitutes incitement to cause harm. Even in South Africa, however, the distinction between the offense of incitement to hatred and the offense of advocacy of hatred that constitutes incitement to cause harm remains intact. Consider s. 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000, which separates out the prohibition of hate speech into separate offenses. It prohibits the use of words targeted at peo-ple identified by certain ascriptive characteristics (or ‘prohibited grounds’) used with the intention to ‘(b) be harmful or to incite harm’, and it prohibits words used with the intention to ‘(c) promote or propagate hatred.’ So, whereas incitement to hatred only involves a speaker’s intention to promote hatred of certain groups or classes of persons, the hate crime of incitement to cause harm is characterized by the speaker’s intention to make someone else the instrument of his or her unlawful will in committing harmful acts.

It may be tempting to think that laws in the present cluster are among the most straightforward to defend because they piggyback on other laws that are already widely accepted. But the position is not so straightforward. Where

laws specifically interdict hate-based forms of intimidation, provocation, or incitement to crime, for example, they do so in a way that discriminates between different content or viewpoints. As mentioned earlier, this means that they implicate free speech principles and values—most notably relating to neutrality—even if they are ostensibly directed at otherwise unprotected conduct. I shall return to discuss this complex issue in Chs. 9 [9.5] and 10 [10.5], where I shall argue that the ideal of neutrality is appropriately subject to exceptions that reflect other important principles and values.